ART 838 NCC Succession Full Text 1

SUCCESSION FULL TEXT
ART. 838 NO WILL SHALL PASS PROPERTY UNLESS PROVED AND ALLOWED IN ACCORDANCE WITH
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****NOTE ABOUT THIS CASE: (IN FULL SPANISH ORIGINAL TEXT)

TRANSLATED IN ENGLISH VIA INTERNET
Republic of the Philippines

SUPREME COURT
Manila
EN BANC
GR No. L-47931 June 27, 1941
Probate of the late Rev. Eleuterio P. Pilapil. ADRIANO MENDOZA, petitioner and
appellee,
vs.. CALIXTO Pilapil AND OTHERS, opponents and appellants.
Filemon Sotto and D. D. G. Numeriano Estenzo in representation of the appellants.
Messrs. Alonso and Alonso for appellee.
DIAZ, J. :
The main issues that opponents have us for resolution, to appeal the decision of the
Court of First Instance of Cebu, dictated on the record Probate Court No. 407 of that
can be reduced to siguintes.
1. If the Court of Cebu could name the March 4, 1939, the appellee as special
administrator of the estate of the decedent relict Eleuterio P. Pilapil (probate record No.
407), being as it was then acting as administrator of the same goods from the February
7, 1939, Appellant Calixto Pilapil, who promoted the day before, the record of the same
deceased Intestate Eleuterio P. Pilapil, in that Court (file No. 399, Court of Cebu); and
2. Meetings as appropriate and necessary as the legalization provision of a will or last
will of the late Eleuterio P. Pilapil, the cars obrante document as Exhibit A is a duplicate
of the coal Exhibit C.

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The relevant facts to be taken into account to resolve issues are proposed, according to
detach from the appealed decision and the same documents that the Court declare to
be last will and testament of the late Eleuterio P. Pilapil, which are reported below :
The Eleuterio P. Pilapil, being parish priest of Mualboal of the Province of Cebu, died in
the city of that name on December 6, 1935. Absence of any submitted his will after his
death, at least until early February 1939, his brother Calixto Pilapil promoted the 6th of
said month and year, the case of intestacy No. 399 to ask fuesenombrado relict
administrator of the goods. Received proof that he had submitted the request for
elindicado end prior publication of notices presritos by law, and the court hearing prior to
the quecomparecieron to oppose it, among which were the same and Simeona appellee
Pilapil, the Court granted it, thereupon appointed him administrator of the
Intestate. Within a few days, or the March 4, 1939, the appellee in turn promoted file No.
407, previously has made mention, to demand the legalization as a testament of the late
Eleuterio P. Pilapil, the Exhibit A that Carbon is the duplicate to the Exhibit C. There
between the clauses of these two documents, which are inserted below for their
relevance to the issues raised and also the importance
I, Eleuterio Pilapil, Priest Natural Apostolic Roman Catholic Church, of sixty-eight
years old, Liloan currently Parish Priest of the Parish of Mualboal, Province of
Cebu, IF, enjoying health and FULL USE OF MY MENTAL POWERS, hereby
publish, grant and declare the following as MY LAST WILL AND TESTAMENT:
ART. FIRST: I institute and appoint Mr. Adrian Mendoza, my political nephew,
married, of legal age and a resident of the Municipality of Liloan, Cebu Province,
IF, EXECUTOR-EXECUTOR of this my Last Will and Testament: Provided , That
in case of inability, negligence or other cause with which embarrasses enforce
this my Testament and Last Will, by a guarantor, my disposal and ordered to be
replaced in the office of executor, executor of this my Testament and Last Will,
my cousin, Jose Cabatingan, married, of legal age, resident of Mualboal
Municipiop, Province of Cebu, IF, who was in charge and will make this my
following provisions are met:
xxx xxx xxx
. 2nd my disposal and command this my Last Will and Testament was not
ventilate in court, since this Last Will and Testament, simply confirms, affirms and
assures the legitimacy of the documents for the sale of my property;

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xxx xxx xxx

ART. SECOND: I hereby state that I do this My Last Will and Testament, which
confirms, affirms and assures the legitimacy of documents given to my buyers
consists of two items; contains sixteen provisions and is written in three pages;
xxx xxx xxx
Cebu, Cebu, IF, for today November 27, 1935.
(Signed) ELEUTERIO Pilapil Testator ;
at the end thereof (exhibits A and C), there witnessing this clause:
When shall read:
God bless you,
We who signed below, we state: That the pre-insert and Testament Last Will was
subscribed and sworn to by the said Testator, Rev. Eleuterio P. Pilapil in the
presence of us all pray and said Testator, each signed of us in the presence of
us, here in Cebu, Cebu, IF, for today November 27, 1935.
(Signed) WENCESLAO Pilapil Witness

MARCELO Pilapil Witness
EUGENE K. Pilapil Witness

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The two documents, exhibits A and C consist of three pages; and on the left of each of
the two first range; listed firms that are at the end of the main body of these documents
and their attestation clause; and are, according to the evidence, signatures of the late
Eleuterio P. Pilapil, and witnesses Wenceslao Pilapil, Marcelo Pilapil and Eugene K.
Pilapil.
In place of the date both documents as your witnessing clause, is written the word
"Cebu" on that deal but scraping is still obvious that said "Mualboal"; and the numeral
"27" and the name also appear more "November", the latter written on a scraped word
that can also be seen even without any difficulty, at least in Exhibit A, which says:
"October". In the last paragraph on page 2 below which appears in the first two lines of
the next page (page 3), which is the last, there are the following express mention
"contains sixteen provisions and is written on three pages." At the bottom of the pages
(1) and (2) there respectively these notes: "Go to the 2nd page."; "Pass through 3.
Pages". And it should be noted that both the one and the other of the aforementioned
Exhibits A and C, no more than two articles ("Art First" and "Second Section") and
dieceseis provisions.
The grounds on which the appellants rely to argue that legalization does not come from
any of the two specified documents as a testament of the late Eleuterio P. Pilapil, are
these:
( a ) They contain erasures and alterations to the appellee leave to explain;
( b ) That has not been proven that the deceased, - prescindimiento of what is on those
documents exhibits A and C - age was responsible for testing;
( c ) It is not proved that the deceased owned the Spanish which is the language in
which those documents appear written;
( d ) that one of the clauses of these documents is no prohibition that aired on slab
Courts;
( e ) None of the two has been prepared, signed and witnessed in accordance with the
provisions of Article 618 of the Code of Civil Procedure.
Regarding the first question, it must be said that, according to tells us the same part of
the appellants Appeals, the two cases Nos. 399 and 407 were promoted in two different
chambers of the Court of First Instance of Cebu. The first was promoted in Division

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III; and the last, in Room II. Hearing Judge of said Salas had a direct relationship
between unto and another provided that the two of them from recognizing by a single
Judge; hence both are considered as one to avoid what the aforementioned judge said:
"inconsistency in the administration of the goods of the deceased," referring to; late
Eleuterio P. Pilapil.
Certainly do not miss Cebu reason the Court to appoint special manager in case No.
407, the appellee, because the documents were treated there as a testament to legalize
and disposition of last will of the late Eleuterio P. Pilapil, has commissioned Express it to
be. Also, there was not no law that prohibits the courts hearing a probate record or
intestate, appoint an administrator over; and, if it happened that I leave without effect
the appointment of the appellant as administrator, then the two mentioned records were
melted. But still; if the purpose of the appellants to propose the matter of which we are
speaking, is to rescind the appointment issued to appellee as special administrator, is
vain and vain to be said purpose, because you insist on the amounts to be appealing to
an order of the Court to appoint a special administrator; and the law does not allow
appeal against orders of that nature. Is the provision of strict law that says, "Do not
allow the appeal against the appointment of the special administrator." (Art. 660, Act No.
190.)
In addition to all this must be said that if there was an error in naming appellee as
special administrator, for the reason that other property was already appointed by the
court, the error, if such it can be called, has not been so nature that has caused any
harm to anyone, least of Probate of the late Eleuterio P. Pilapil.
Scratches and changes that are noted in exhibits A and C are some facts to which now,
for the first time, and in this instance, is to llamr attention, when it should have been
done while the case was still in court of its origin. We can not take them into account in
the present stage of the proceedings because, assuming that already existed then, can
and should be said, but did not say in express terms the Court of Cebu, I believe that
not vitiate these documents; it is presumption rebuttable that "all the facts related to the
issues discussed at trial were exposed to and appreciated by the court." (Art. 334, par.
16, Law No. 190.) And do not vitiated indeed, because it follows the same
circumstances, they did just to put things in their proper place. The two exhibits A and C
were prepared by the late Eleuterio P. Pilapil in Mualboal where was parish priest,
before being transladado to be treated for his illness that caused her death, Cebu
Southern Islands Hospital, where he died. Being based on these facts the Court that
were tested in court, declare as follows: "The intervention of the three instrumental
witnesses of the document took place in a haphazard manner, on the occasion in which

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they were to visit him Eleuterio Pilapil who was ill at the Southern Islands Hospital, and
there the deceased begged them to act today to witness the document and then had
prepared. "
In preparing the, being in Mualboal was no more than natural that expressed in it that
there were prepared, and leave blank the date but still put the name of the month in
which they were put in clean, ie October 1935.
The age of the testator as to whether they spoke Spanish is the language in which the
two exhibits, or do not appear written, it must be said that a priest and parish priest of
Mualboal, Cebu, must be presumed that had the old fundademente competent to make
a will, and who understood the Spanish spoken and therefore is generally known that to
be a parish priest of one must be a priest, and to be, many years of study in seminars
where Spanish is spoken are required as official language as English. Moreover, no
evidence has been proven that the testator did not understand the language.
The disposition of the testator that his "Last Will and Testament not be heard by the
Court" can not strip the courts of their authority to determine if your will is referred
legalizable or not. There are stakeholders in one way or another on an issue, which may
confer or remove the jurisdiction and authority to resolve Trubunales and decide what
you want the same law is resolved and decided. Please note that the law on penalty
kicks, which the Court delivered the Wills made by a testator dies after this, by the
person entrusted with custody, so they certainly can determine whether your legalization
and at the same time to dispose of his property according sends him there; or whether
the contract should be declared dead intestate, not being susceptible of legalization
which would have granted. (. Arts. 626 to 631, Act No. 190) In addition, the testator not
being a lawyer, it is no wonder that has been placed in his will the ban on that - using
his own words - "be heard by the Court" .
And as to the exhibits A and C can not be legalized because they were not prepared
and signed in accordance with the law, saying that their pages are not numbered with
letters; and because in its clause witnessing not expressed that they were signed by the
three instrumental witnesses, in the presence of the testator, it is sufficient to call
attention to the fact that the bottom of the first page there are lyrics on the note clearly
states: " Go to the 2nd page. "; and the fact that, at the bottom of the second page,
there is this other note: "Go to the 3rd page.";sufficient and also draw attention to the
first two lines of the third page is the last, where, to complete the arrangement that is
contained in the last paragraph of the previous page, or second, it is stated:

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. . . consists of two items; CONTAINS

sixteen provisions and is written
on three pages,
which agrees closely with the true facts as they appear in the aforementioned two
exhibits, for indeed contain two articles and sixteen provisions, not more, not less.
In an attestation clause and another copy of the object in question Testament, by the
three instrumental witnesses who signed it states that
the pre-insert Testament and Last Will,
has been subscribed and sworn declared by
the Testator, Rev. Eleuterio P. Pilapil
in the presence of us all;
and row followed by the same witnesses who also says:
to beg of the testator, signed
each of us, here in Cebu, Cebu,
IF, for today November 27, 1935.
The fraze "said Testator to pray" that attached to the signed and signed his will in the
presence of the attesting witnesses, permits and justifies the inference that the testator
was present when the last alli affixed their respective signatures.
The purpose of the law to establish the formalities required authenticity is undoubtedly
ensure and guarantee their authenticity against bad faith and fraud, to prevent those
who are not entitled to succeed the testator, and you happen to win-win legalization of
same. It has fulfilled that purpose in the event that there has been talk that, in the same
body of the will and the same page where the attestation clause appears, or the third,
expresses the will consists of three pages and why one of the first two takes note partly
lyrics, partly the same and second pages.These facts evidently excludes all fear,
suspicion, or any hint of doubt has been replaced some of its pages to another.
Something more in the case of Nayve against Mojal and Aguilar (47 Phil., 160), which
was clarified by the cause of Gumban against Gorecho and others (50 Phil., 31), there
is in this case because there there was but notes: "Pag 1"; "Pag 2"; "Pag 3"; and "Pag
4" on the respective side of the four pages that include, and in this there is the
aforementioned data and there is also the record inserted in the first two lines of the

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third page of the exhibits A and C, that they are composed of three pages, and contain
two articles and sixteen provisions.
They are therefore the perfect application if it is what we said in the causes of
Rodriguez against Yap, GR No. 45924, May 18, 1939; Blessed and against De
Gorostiza (57 Phil., 456). We said in these cases, respectively, as follows:
The wording of the attestation clause in this will not technically free repairs, but is
substantially a law enforcement.
We maintain the view that should be required strict compliance with the
substantive requirements of the will, to ensure its authenticity, but at the same
time we believe that defects that do not affect the order should not be taken into
account and the other part , be taken into account, could thwart the will of the
testator.(Rodriguez against Yap, supra .)
It should not be allowed to hinder the legal formalities employing good common
sense in the consideration of wills and to frustrate the wishes of the deceased
solemnly expressed in their wills, as to which there is not even granting shadow
of bad faith or fraud. (Blessed against De Gorostiza, supra .)
For these reasons, finding according to law the appealed decision of the Court of First
Instance of Cebu, hereby confirm it sentenced the appellants to pay the costs. So is
ordered.
Avancea, CJ, Diaz, Laurel, and Horrilleno Moran, MM., are compliant.
Separate Opinions
MORAN, M., dissenting:
The attestation clause is as follows:
We who signed below, we state: That the pre-insert Testament and Last Will, has
been subscribed, and sworn to by the said Testator, Rev. Eleuterio P. Pilapil in

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the presence of us all pray and said Testator, each signed of us in the presence
of us, here in Cebu, Cebu, IF, for today November 27, 1935.
There is nothing in this clause that the attesting witnesses signed the will in the
presence of the testator and, therefore, the will can not be probated. But the majority
argues that "the phrase 'a prayer of said testator,' attached to it signed and signed his
will in the presence of the attesting witnesses, allowed and justified inference that the
testator was present when the last stamped their alli signatures. " But we have said
repeatedly that the formalities required of a will by law can not be established by
evidence aliunde . Therefore, inference tests are inadmissible, mostly if the inference is
not quite adjusted to the logic.
For these reasons, I dissent from the opinion of the majority.

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EN BANC
G.R. No. L-35993
December 19, 1932
In re Estate of the deceased Gregorio Tolentino. ADELAIDA

TOLENTINO, petitioner-appellee, vs. NATALIA FRANCISCO, ET AL., oppositorsappellants.
Laurel, Del Rosario & Lualhati for appellants.
Eduardo Gutierrez Repide for appellee.
STREET, J.:
This petition was filed in the Court of First Instance of Manila by Adelaida Tolentino de
Concepcion, for the purpose of procuring probate of the will of Gregorio Tolentino,
deceased, who died at the hand of an assassin, in his home, No. 2541 Lico Street, in
the District of Santa Cruz, Manila, on November 9, 1930. In the inception of the
proceedings Eugene de Mitkiewicz was appointed special coadministrator, and he
joined as coplaintiff in the petition. Opposition was made to the probate of the will by
Ciriaco Francisco, Natalia Francisco, and Gervasia Francisco, all cousins of the
deceased and residents of the City of Manila. Upon hearing the cause the trial court
overruled the opposition, declared the will to have been properly executed, and allowed
the probate thereof. From this order the three opponents
appealed.chanroblesvirtualawlibrary chanrobles virtual law library
At the time of his death on November 9, 1930, Gregorio Tolentino was sixty-six years of
age. During the more vigorous years of his life he had been married to Benita
Francisco, but she predeceased him years ago. By their industry and frugality the two
had accumulated a very considerable estate which does not appear to have suffered
any material diminution in the years of Tolentino's widowhood. The pair had no children,
and the generous instincts of the survivor prompted him to gather around him in his

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comfortable and commodious home a number of his wife's kin; and by him various
younger members of the connection were supported and educated. At one time
Tolentino contemplated leaving his property mainly to these kin of his wife, of the
surname Francisco; and for several years prior to his death, he had kept a will indicating
this desire. However, in October, 1930, strained relations, resulting from grave
disagreements, developed between Tolentino and the Francisco relations and he
determined to make a new will in which, apart from certain legacies in favor of a few
individuals, the bulk of his estate, worth probably about P150,000, should be given to
Adelaida Tolentino de Concepcion, as his universal
heir.chanroblesvirtualawlibrary chanrobles virtual law library
To this end, on October 17, 1930, Tolentino went to the office of Eduardo Gutierrez
Repide, an attorney at 97 General Luna, Manila, and informed him that he wanted to
make a new will and desired Repide to draft it for him. After the necessary preliminary
inquiries had been made, the attorney suggested to Tolentino to return later, bringing a
copy of the will previously made. Accordingly, on the second day thereafter, Tolentino
again appeared in Repide's office with the prior will; and the attorney proceeded to
reduce the new will to proper form. As the instrument was taking shape Tolentino stated
that he wanted the will to be signed in Repide's office, with Repide himself as one of the
attesting witnesses. For the other two witnesses Tolentino requested that two attorneys
attached to the office, namely, Leoncio B. Monzon and Ramon L. Sunico, should serve.
For this reason, in the draft of the will, as it at first stood, the names of the three above
mentioned were inserted as the names of the three attesting
witnesses.chanroblesvirtualawlibrary chanrobles virtual law library
When the instrument had been reduced to proper form it was placed in the hands of
Tolentino, the testator, in order that he might take it home to reflect over its provisions
and consider whether it conformed in all respects to his wishes. On the morning of
October 21 he again appeared in Repide's office and returned to him the draft of the will
with certain corrections. Among the changes thus made was the suppression of the
names of Monzon, Sunico, and Repide as attesting witnesses, these names being
substituted by the names of Jose Syyap, Agustin Vergel de Dios, and Vicente Legarda.
The explanation given by the testator for desiring this change was that he had met Jose
Syyap on the Escolta, the day before, and had committed the indiscretion of
communicating the fact that he (Tolentino) was having a new will made in which

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Monzon, Sunico, and Repide would appear as the attesting witnesses. Now Syyap had
been the draftsman of the former will of Tolentino, and in this same will the name of
Syyap appeared as one of the attesting witnesses, the other two being Vicente Legarda
and Vergel de Dios. When, therefore, Syyap learned that a new will was being drawn up
without his intervention, he showed profound disappointment, saying to Tolentino that
he considered it a gross offense that he, Legarda, and Vergel de Dios should be
eliminated as witnesses to the new will. Upon this manifestation of feeling by Syyap,
Tolentino decided to avail himself of Syyap, Legarda, and Vergel de Dios as witnesses
to this will also, and he therefore requested Repide to change the names of the attesting
witnesses. After this point had been settled Tolentino stated that he would request
Syyap, Legarda, and Vergel de Dios to appear at the office of Repide for the purpose of
signing the will. To this end Tolentino went away but returned later saying that he had
spoken to Syyap about it and that the latter strenuously objected, observing that the will
should be signed at a chop-suey restaurant ( panciteria). Tolentino further stated to his
attorney in this conversation that he had arranged with Syyap and the other two
intending witnesses to meet at five o'clock in the afternoon of the next day, which was
October 22, for the purpose of executing the will.chanroblesvirtualawlibrary chanrobles
virtual law library
Pursuant to these instructions Repide made the desired changes in the will; and just
before twelve o'clock noon of the next day Tolentino returned to Repide's office and
received from him the criminal document with a carbon copy thereof. Repide advised
the testator that the copy should be executed with the same formality as the original in
order that the intention of the testator should not be frustrated by the possible loss or
destruction of the original.chanroblesvirtualawlibrary chanrobles virtual law library
It is a custom in the office of Repide not to number the consecutive pages of a will, on
the typewriting machine, the duty of numbering the pages being left to the testator
himself. This precaution appears to have been born of experience, and has been
adopted by Repide to prevent the possible destruction of a will by the mere erasure of
the figures or letters indicating the pagination, - a disaster which, in Repide's
experience, had occurred in at least one case. Accordingly, upon delivering the
completed will and carbon copy to the testator, Repide took particular pains to instruct
the testator to write the consecutive paging of both original and duplicate before signing
the instrument.chanroblesvirtualawlibrary chanrobles virtual law library

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At his interview the testator suggested to Repide that the latter should also go to the
place where the will was to be executed, so that he might be present at the formality.
The attorney replied that it was impossible for him to do so as he had another
engagement for the hour indicated, which would prevent his
attendance.chanroblesvirtualawlibrary chanrobles virtual law library
At about 4:30 p. m. on the same day, which was October 22, Tolentino started in his car
to pick up Syyap and Vergel de Dios at their respective homes on Antipolo and
Benavides streets. He then caused his chauffeur to drive with the three to La Previsora
Filipina, on Rizal Avenue, where Vicente Legarda, the third intending witness was to be
found. Arriving at this place, the three entered the office of Legarda, who was manager
of the establishment, and they were invited to take seats, which they did. Tolentino then
suggested that the three should go as his guests to a panciteria, where they could take
refreshments and the will could be executed. Legarda replied that he must decline the
invitation for he had an engagement to go to the Cosmos Club the same afternoon.
Upon this Tolentino asked Legarda to permit the will to be signed in his office, and to
this request Legarda acceded.chanroblesvirtualawlibrary chanrobles virtual law library
Tolentino thereupon drew two documents from his pocket saving that it was his last will
and testament, done in duplicate, and he proceeded to read the original to the
witnesses. After this had been completed, Legarda himself took the will in hand and
read it himself. He then returned it to Tolentino, who thereupon proceeded, with pen and
ink, to number the pages of the will thus, "Pagina Primera", "Pagina Segunda", etc. He
then paged the duplicate copy of the will in the same way. He next proceeded to sign
the original will and each of its pages by writing his name "G. Tolentino" in the proper
places. Following this, each of the three witnesses signed their own respective names
at the end of the will, at the end of the attesting clause, and in the left margin of each
page of the instrument. During this ceremony all of the persons concerned in the act of
attestation were present together, and all fully advertent to the solemnity that engaged
their attention.chanroblesvirtualawlibrary chanrobles virtual law library
After the original of the will had been executed in the manner just stated, the testator
expressed his desire that the duplicate should be executed in the same manner. To this
Syyap objected, on the ground that it was unnecessary; and in this view he was
supported by Vergel de Dios, with the result that the wishes of the testator on this point

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could not be carried out. As the party was about to break up Tolentino used these
words: "For God's sake, as a favor, I request you not to let any one know the contents of
this will." The meeting then broke up and Tolentino returned Syyap and Vergel de Dios
to their homes in his car. He then proceeded to the law office of Repide, arriving about
6:15 p. m. After preliminary explanations had been made, Tolentino requested Repide to
keep the will overnight in his safe, as it was already too late to place it in the
compartment which Tolentino was then renting in the Oriental Safe Deposit, in the
Kneedler Building. In this connection the testator stated that he did not wish to take the
will to his home, as he knew that his relatives were watching him and would take
advantage of any carelessness on his part to pry into his papers. Also, in this
conversation Tolentino informed Repide of the refusal of Syyap to execute the duplicate
of the will.chanroblesvirtualawlibrary chanrobles virtual law library
After a good part of an hour had thus been spent at Repide's office by the testator and
after the original of the will had been deposited in Repide's safe, Tolentino took the
attorney to the latter's residence in Ermita, and then returned to his own home, where
he remained without again going out that night. But promptly at nine o'clock the next
morning Tolentino presented himself at Repide's office for the purpose of securing the
will. Repide happened to be out and Tolentino went away, but again returned the next
day and received the will. With the instrument thus in his possession he proceeded at
once to the Oriental Safe Deposit and there left the instrument in his private
compartment, No. 333, in which place it remained until withdrawn some two weeks later
by order of the court.chanroblesvirtualawlibrary chanrobles virtual law library
On the morning of November 9, 1930, Gregorio Tolentino was found dead in his bed,
having perished by the hands of an assassin.chanroblesvirtualawlibrary chanrobles
virtual law library
The peculiarity of this case is that, upon the trial of this proceeding for the probate of the
will of the decedent, two of the attesting witnesses, Jose Syyap and Vergel de Dios,
repudiated their participation in the execution of the will at the time and place stated;
and while admitting the genuineness of their signatures to the will, pretended that they
had severally signed the instrument, at the request of the testator, at different places.
Thus Syyap, testifying as a witness, claimed that the testator brought the will to Syyap's
house on the afternoon of October 21 - a time, be it remembered, when the will had not

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yet left the hands of the draftsman - and upon learning that Syyap could not be present
at the time and place then being arranged for the execution of the will, he requested
Syyap, as a mere matter of complaisance, to sign the will then, which Syyap did. Vergel
de Dios has another story to tell of isolated action, claiming that he signed the will in the
evening of October 22 at the Hospital of San Juan de Dios in
Intramuros.chanroblesvirtualawlibrary chanrobles virtual law library
We are unable to give any credence to the testimony of these two witnesses on this
point, the same being an evident fabrication designed for the purpose of defeating the
will. In the first place, the affirmative proof showing that the will was properly executed is
adequate, consistent, and convincing, consisting of the testimony of the third attesting
witness, Vicente Legarda, corroborated by Miguel Legarda and Urbana Rivera, two
disinterested individuals, employees of La Previsora Filipina, who were present in
Legarda's office when the will was executed and who lent a discerning attention to what
was being done. In the second place, each of the seven signatures affixed to his will by
Syyap appear to the natural eye to have been made by using the same pen and ink that
was used by Legarda in signing the will. The same is also probably true of the seven
signatures made by Vergel de Dios. This could hardly have happened if the signatures
of Syyap and Vergel de Dios had been affixed, as they now pretend, at different times
and places. In the third place, Both Syyap and Vergel de Dios are impeached by proof
of contradictory statements made by them on different occasions prior to their
appearance as witnesses in this case. In this connection we note that, after the murder
of Gregorio Tolentino, and while the police authorities were investigating his death,
Nemesio Alferez, a detective, sent for Syyap and questioned him concerning his
relations with the deceased. Upon this occasion Syyap stated that Gregorio Tolentino
had lately made a will, that it had been executed at the office of La Previsora Filipina
under the circumstances already stated, and that he himself had served as one of the
attesting witnesses.chanroblesvirtualawlibrary chanrobles virtual law library
With respect to Vergel de Dios we have the following fact: On the day that Gregorio
Tolentino was buried, Ramon Llorente, a member of the city police force, was sent out
to the cemetery in order that he might be present and observe the demeanor on that
occasion of such Tolentino's kin as might be present. Llorente arrived before the funeral
cortege, having been taken out to the cemetery by Repide. While the two were waiting
at the cemetery, Llorente noted the presence of Vergel de Dios, he requested the

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policeman to introduce him. In the conversation that ensued Vergel de Dios stated with
considerable detail that Gregorio Tolentino had made a will just before his death, that it
was executed at La Previsora Filipina, and that he was one of the witnesses who
attested the instrument at that time and place.chanroblesvirtualawlibrary chanrobles
virtual law library
Again, on a certain occasion subsequent to the death of Gregorio Tolentino, Juan
Concepcion the husband of Adelaida Tolentino, accompanied by Genoveva de
Mendoza, called upon Vergel de Dios, and in the conversation that resulted Vergel de
Dios told them that the will was properly executed, that he was one of the attesting
witnesses, and that it had been signed by all of them in the office of La Previsora
Filipina.chanroblesvirtualawlibrary chanrobles virtual law library
These circumstances and other incidents revealed in the proof leave no room for doubt
in our mind that Syyap and Vergel de Dios have entered into a conspiracy between
themselves, and in concert with the opponents, to defeat the will of Gregorio Tolentino
although they are well aware that said will was in all respects properly executed; and
the trial court, in our opinion, committed no error in admitting the will to
probate.chanroblesvirtualawlibrary chanrobles virtual law library
When a will is contested it is the duty of the proponent to call all of the attesting
witnesses, if available but the validity of the will in no wise depends upon the united
support of the will by all of those witnesses. A will may be admitted to probate
notwithstanding the fact that one or more of the subscribing witnesses do not unite with
the other, or others, in proving all the facts upon which the validity of the will rests.
(Fernandez vs. Tantoco, 49 Phil., 380.) It is sufficient if the court is satisfied from all the
proof that the will was executed and attested in the manner required by law. In this case
we feel well assured that the contested will was properly executed and the order
admitting to it probate was entirely proper.chanroblesvirtualawlibrary chanrobles virtual
law library
The order appealed from will therefore be affirmed, with costs against the appellants. So
ordered.chanroblesvirtualawlibrary chanrobles virtual law library
Malcolm, Villamor, Villa-Real, Abad Santos, Hull and Vickers, JJ., concur.

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SUPREME COURT
Manila
EN BANC
G.R. No. 45629
September 22, 1938
ANTILANO G. MERCADO, petitioner,

vs.
ALFONSO SANTOS, Judge of First Instance of Pampanga, respondents.
ROSARIO BASA DE LEON, ET AL., intervenors.
Claro M. Recto and Benigno S. Aquino for petitioner.
Esperanza de la Cruz and Heracio Abistao for respondents.
Sotto and Sotto for intervenors.

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LAUREL, J.:
On May 28, 1931, the petitioner herein filed in the Court of First Instance of Pampanga
a petition for the probate of the will of his deceased wife, Ines Basa. Without any
opposition, and upon the testimony of Benigno F. Gabino, one of the attesting
witnesses, the probate court, on June 27,1931, admitted the will to probate. Almost
three years later, on April 11, 1934, the five intervenors herein moved ex parte to reopen
the proceedings, alleging lack of jurisdiction of the court to probate the will and to close
the proceedings. Because filed ex parte, the motion was denied. The same motion was
filed a second time, but with notice to the adverse party. The motion was nevertheless
denied by the probate court on May 24, 1934. On appeal to this court, the order of
denial was affirmed on July 26, 1935. (Basa vs. Mercado, 33 Off. Gaz., 2521.)
It appears that on October 27, 1932, i. e., sixteen months after the probate of the will of
Ines Basa, intervenor Rosario Basa de Leon filed with the justice of the peace court of
San Fernando, Pampanga, a complaint against the petitioner herein, for falsification or
forgery of the will probated as above indicated. The petitioner was arrested. He put up a
bond in the sum of P4,000 and engaged the services of an attorney to undertake his
defense. Preliminary investigation of the case was continued twice upon petition of the
complainant. The complaint was finally dismissed, at the instance of the complainant
herself, in an order dated December 8, 1932. Three months later, or on March 2, 1933,
the same intervenor charged the petitioner for the second time with the same offense,
presenting the complaint this time in the justice of the peace court of Mexico,
Pampanga. The petitioner was again arrested, again put up a bond in the sum of
P4,000, and engaged the services of counsel to defend him. This second complaint,
after investigation, was also dismissed, again at the instance of the complainant herself
who alleged that the petitioner was in poor health. That was on April 27, 1933. Some
nine months later, on February 2, 1934, to be exact, the same intervenor accused the
same petitioner for the third time of the same offense. The information was filed by the
provincial fiscal of Pampanga in the justice of the peace court of Mexico. The petitioner
was again arrested, again put up a bond of P4,000, and engaged the services of
defense counsel. The case was dismissed on April 24, 1934, after due investigation, on
the ground that the will alleged to have been falsified had already been probated and
there was no evidence that the petitioner had forged the signature of the testatrix
appearing thereon, but that, on the contrary, the evidence satisfactorily established the

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authenticity of the signature aforesaid. Dissatisfied with the result, the provincial fiscal,
on May 9, 1934, moved in the Court of First Instance of Pampanga for reinvestigation of
the case. The motion was granted on May 23, 1934, and, for the fourth time, the
petitioner was arrested, filed a bond and engaged the services of counsel to handle his
defense. The reinvestigation dragged on for almost a year until February 18, 1934,
when the Court of First Instance ordered that the case be tried on the merits. The
petitioner interposed a demurrer on November 25, 1935, on the ground that the will
alleged to have been forged had already been probated. This demurrer was overruled
on December 24, 1935, whereupon an exception was taken and a motion for
reconsideration and notice of appeal were filed. The motion for reconsideration and the
proposed appeal were denied on January 14, 1936. The case proceeded to trial, and
forthwith petitioner moved to dismiss the case claiming again that the will alleged to
have been forged had already been probated and, further, that the order probating the
will is conclusive as to the authenticity and due execution thereof. The motion was
overruled and the petitioner filed with the Court of Appeals a petition for certiorari with
preliminary injunction to enjoin the trial court from further proceedings in the matter. The
injunction was issued and thereafter, on June 19, 1937, the Court of Appeals denied the
petition for certiorari, and dissolved the writ of preliminary injunction. Three justices
dissented in a separate opinion. The case is now before this court for review
on certiorari.
Petitioner contends (1) that the probate of the will of his deceased wife is a bar to his
criminal prosecution for the alleged forgery of the said will; and, (2) that he has been
denied the constitutional right to a speedy trial.
1. Section 306 of our Code of Civil Procedure provides as to the effect of judgments.
SEC. 306. Effect of judgment. The effect of a judgment or final order in an
action or special proceeding before a court or judge of the Philippine Islands or of
the United States, or of any State or Territory of the United States, having
jurisdiction to pronounce the judgment or order, may be as follows.
1. In case of a judgment or order against a specific thing, or in respect to the
probate of a will, or the administration of the estate of a deceased person, or in
respect to the personal, political, or legal condition or relation of a particular

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person, the judgment or order is conclusive upon the title of the thing, the will or
administration, or the condition or relation of the person Provided, That the
probate of a will or granting of letters of administration shall only be prima
facie evidence of the death of the testator or intestate.
xxx
xxx
xxx
(Emphasis ours.)
Section 625 of the same Code is more explicit as to the conclusiveness of the due
execution of a probate will. It says.
SEC. 625. Allowance Necessary, and Conclusive as to Execution. No will shall
pass either the real or personal estate, unless it is proved and allowed in the
Court of First Instance, or by appeal to the Supreme Court; and the allowance by
the court of a will of real and personal estate shall be conclusive as to its due
execution. (Emphasis ours.)
(In Manahan vs. Manahan 58 Phil., 448, 451), we held:
. . . The decree of probate is conclusive with respect to the due execution thereof
and it cannot be impugned on any of the grounds authorized by law, except that
of fraud, in any separate or independent action or proceeding. Sec. 625, Code of
Civil Procedure; Castaeda vs. Alemany, 3 Phil., 426; Pimentel vs.Palanca, 5
Phil., 436; Sahagun vs. De Gorostiza, 7 Phil., 347; Limjuco vs. Ganara, 11 Phil.,
393; Montaanovs. Suesa, 14 Phil., 676; in re Estate of Johnson, 39 Phil, 156;
Riera vs. Palmaroli, 40 Phil., 105; Austria vs.Ventenilla, 21 Phil., 180;
Ramirez vs. Gmur, 42 Phil., 855; and Chiong Jocsoy vs. Vano, 8 Phil., 119.
In 28 R. C. L., p. 377, section 378, it is said.
The probate of a will by the probate court having jurisdiction thereof is usually
considered as conclusive as to its due execution and validity, and is also
conclusive that the testator was of sound and disposing mind at the time when he

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executed the will, and was not acting under duress, menace, fraud, or undue
influence,and that the will is genuine and not a forgery. (Emphasis ours.)
As our law on wills, particularly section 625 of our Code of Civil Procedure aforequoted,
was taken almost bodily from the Statutes of Vermont, the decisions of the Supreme
Court of the State relative to the effect of the probate of a will are of persuasive authority
in this jurisdiction. The Vermont statute as to the conclusiveness of the due execution of
a probated will reads as follows.
SEC. 2356. No will shall pass either real or personal estate, unless it is proved
and allowed in the probate court, or by appeal in the county or supreme court;
and the probate of a will of real or personal estate shall be conclusive as to its
due execution. (Vermont Statutes, p. 451.)
Said the Supreme Court of Vermont in the case of Missionary Society vs. Eells (68 Vt.,
497, 504): "The probate of a will by the probate court having jurisdiction thereof, upon
the due notice, is conclusive as to its due execution against the whole world. (Vt. St.,
sec. 2336; Fosters Exrs. vs. Dickerson, 64 Vt., 233.)"
The probate of a will in this jurisdiction is a proceeding in rem. The provision of notice by
Publication as a prerequisite to the allowance of a will is constructive notice to the whole
world, and when probate is granted, the judgment of the court is binding upon
everybody, even against the State. This court held in the case of Manalo vs. Paredes
and Philippine Food Co. (47 Phil., 938):
The proceeding for the probate of a will is one in rem (40 Cyc., 1265), and the
court acquires jurisdiction over all the persons interested, through the publication
of the notice prescribed by section 630 of the Code of Civil Procedure, and any
order that may be entered therein is binding against all of them.
Through the publication of the petition for the probate of the will, the court
acquires jurisdiction over all such persons as are interested in said will; and any
judgment that may be rendered after said proceeding is binding against the
whole world.

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In Everrett vs. Wing (103 Vt., 488, 492), the Supreme Court of Vermont held.
In this State the probate of a will is a proceeding in rem being in form and
substance upon the will itself to determine its validity. The judgment determines
the status of the instrument, whether it is or is not the will of the testator. When
the proper steps required by law have been taken the judgment is binding upon
everybody, and makes the instrument as to all the world just what the judgment
declares it to be. (Woodruffvs. Taylor, 20 Vt., 65, 73; Burbeck vs. Little, 50 Vt.,
713, 715; Missionary Society vs. Eells, 68 Vt., 497, 504; 35 Atl., 463.) The
proceedings before the probate court are statutory and are not governed by
common law rules as to parties or causes of action. (Holdrige vs. Holdriges
Estate, 53 Vt., 546, 550; Purdy vs. Estate of Purdy, 67 Vt. 50, 55; 30 Atl., 695.)
No process is issued against anyone in such proceedings, but all persons
interested in determining the state or conditions of the instrument are
constructively notified by the publication of notice as required by G. L. 3219.
(Woodruff vs. Taylor, supra; In re Warners Estate 98 Vt., 254; 271; 127 Atl., 362.)
Section 333, paragraph 4, of the Code of Civil Procedure establishes an incontrovertible
presumption in favor of judgments declared by it to be conclusive.
SEC. 333. Conclusive Presumptions. The following presumptions or
deductions, which the law expressly directs to be made from particular facts, are
deemed conclusive.
xxx
xxx
xxx
4. The judgment or order of a court, when declared by this code to be conclusive.

Conclusive presumptions are inferences which the law makes so peremptory that it will
not allow them to be overturned by any contrary proof however strong.
(Brant vs. Morning Journal Assn., 80 N.Y.S., 1002, 1004; 81 App. Div., 183; see, also,
Joslyn vs. Puloer, 59 Hun., 129, 140, 13 N.Y.S., 311.) The will in question having been
probated by a competent court, the law will not admit any proof to overthrow the legal
presumption that it is genuine and not a forgery.

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The majority decision of the Court of Appeals cites English decisions to bolster up its
conclusion that "the judgment admitting the will to probate is binding upon the whole
world as to the due execution and genuineness of the will insofar as civil rights and
liabilities are concerned, but not for the purpose of punishment of a crime." The cases of
Dominus Rex vs. Vincent, 93 English Reports, Full Reprint, 795, the first case being
decided in 1721, were cited to illustrate the earlier English decisions to the effect that
upon indictment for forging a will, the probating of the same is conclusive evidence in
the defendants favor of its genuine character. Reference is made, however, to the cases
of Rex vs. Gibson, 168 English Reports, Full Reprint, 836, footnote (a), decided in 1802,
and Rex vs. Buttery and Macnamarra, 168 English Reports, Full Reprint, 836, decided
in 1818, which establish a contrary rule. Citing these later cases, we find the following
quotation from Black on Judgments, Vol. II, page 764.
A judgment admitting a will to probate cannot be attacked collaterally although
the will was forged; and a payment to the executor named therein of a debt due
the decedent will discharge the same, notwithstanding the spurious character of
the instrument probated. It has also been held that, upon an indictment for
forging a will, the probate of the paper in question is conclusive evidence in the
defendants favor of its genuine character. But this particular point has lately been
ruled otherwise.
It was the case of Rex vs. Buttery, supra, which induced the Supreme Court of
Massachussetts in the case of Waters vs. Stickney (12 Allen 1; 90 Am. Dec., 122) also
cited by the majority opinion, to hold that "according to later and sounder decisions, the
probate, though conclusive until set aside of the disposition of the property, does not
protect the forger from punishment." This was reproduced in 28 R.C.L., p. 376, and
quoted in Barry vs. Walker (103 Fla., 533; 137 So., 711, 715), and
Thompson vs. Freeman (149 So., 740, 742), also cited in support of the majority opinion
of the Court of Appeals. The dissenting opinion of the Court of Appeals in the instant
case under review makes a cursory study of the statutes obtaining in England,
Massachussetts and Florida, and comes to the conclusion that the decisions cited in the
majority opinion do not appear to "have been promulgated in the face of statutes similar
to ours." The dissenting opinion cites Whartons Criminal Evidence (11th ed., sec. 831),
to show that the probate of a will in England is only prima facie proof of the validity of
the will (Op. Cit. quoting Marriot vs.Marriot, 93 English Reprint, 770); and 21 L.R.A. (pp.

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686689 and note), to show that in Massachussetts there is no statute making the
probate of a will conclusive, and that in Florida the statute(sec. 1810, Revised Statutes)
makes the probate conclusive evidence as to the validity of the will with regard to
personal, and prima facie as to real estate. The cases decided by the Supreme Court of
Florida cited by the majority opinion, supra, refer to wills of both personal and real
estate.
The petitioner cites the case of State vs. McGlynn (20 Cal., 233, decided in 1862), in
which Justice Norton of the Supreme Court of California, makes the following review of
the nature of probate proceedings in England with respect to wills personal and real
property.
In England, the probate of wills of personal estate belongs to the Ecclesiastical
Courts. No probate of a will relating to real estate is there necessary. The real
estate, upon the death of the party seized, passes immediately to the devisee
under the will if there be one; or if there be no will, to the heir at law. The person
who thus becomes entitled takes possession. If one person claims to be the
owner under a will, and another denies the validity of the will and claims to be the
owner as heir at law, an action of ejectment is brought against the party who may
be in possession by the adverse claimant; and on the trial of such an action, the
validity of the will is contested, and evidence may be given by the respective
parties as to the capacity of the testator to make a will, or as to any fraud
practiced upon him, or as to the actual execution of it, or as to any other
circumstance affecting its character as a valid devise of the real estate in dispute.
The decision upon the validity of the will in such action becomes res adjudicata,
and is binding and conclusive upon the parties to that action and upon any
person who may subsequently acquire the title from either of those parties; but
the decision has no effect upon other parties, and does not settle what may be
called the status or character of the will, leaving it subject to be enforced as a
valid will, or defeated as invalid, whenever other parties may have a contest
depending upon it. A probate of a will of personal property, on the contrary, is a
judicial determination of the character of the will itself. It does not necessarily or
ordinarily arise from any controversy between adverse claimants, but is
necessary in order to authorize a disposition of the personal estate in pursuance
of its provisions. In case of any controversy between adverse claimants of the

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personal estate, the probate is given in evidence and is binding upon the parties,
who are not at liberty to introduce any other evidence as to the validity of the will.
The intervenors, on the other hand, attempt to show that the English law on wills is
different from that stated in the case of State vs. McGlynn, supra, citing the following
statutes.
1. The Wills Act, 1837 (7 Will. 4 E 1 Vict. c. 26).
2. The Court of Probate Act, 1857 (20 and 21 Vict. c. 77).
3. The Judicature Act, 1873 (36 and 37 Vict. c. 66).
The Wills Act of 1837 provides that probate may be granted of "every instrumental
purporting to be testamentary and executed in accordance with the statutory
requirements . . . if it disposes of property, whether personal or real." The Ecclesiastical
Courts which took charge of testamentary causes (Ewells Blackstone [1910], p. 460),
were determined by the Court of Probate Act of 1857, and the Court of Probate in turn
was, together with other courts, incorporated into the Supreme Court of Judicature, and
transformed into the Probate Division thereof, by the Judicature Act of 1873. (Lord
Halsbury, The Laws of England[1910], pp. 151156.) The intervenors overlook the fact,
however, that the case of Rex vs. Buttery and Macnamarra, supra, upon which they rely
in support of their theory that the probate of a forged will does not protect the forger
from punishment, was decided long before the foregoing amendatory statutes to the
English law on wills were enacted. The case of State vs. McGlynn may be considered,
therefore, as more or less authoritative on the law of England at the time of the
promulgation of the decision in the case of Rex vs. Buttery and Macnamarra.
In the case of State vs. McGlynn, the Attorney General of California filed an information
to set aside the probate of the will of one Broderick, after the lapse of one year provided
by the law of California for the review of an order probating a will, in order that the
estate may be escheated to the State of California for the review of an probated will was
forged and that Broderick therefore died intestate, leaving no heirs, representatives or
devisees capable of inheriting his estate. Upon these facts, the Supreme Court of
California held.

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The fact that a will purporting to be genuine will of Broderick, devising his estate
to a devisee capable of inheriting and holding it, has been admitted to probate
and established as a genuine will by the decree of a Probate Court having
jurisdiction of the case, renders it necessary to decide whether that decree, and
the will established by it, or either of them, can be set aside and vacated by the
judgment of any other court. If it shall be found that the decree of the Probate
Court, not reversed by the appellate court, is final and conclusive, and not liable
to be vacated or questioned by any other court, either incidentally or by any
direct proceeding, for the purpose of impeaching it, and that so long as the
probate stands the will must be recognized and admitted in all courts to be valid,
then it will be immaterial and useless to inquire whether the will in question was
in fact genuine or forged. (State vs. McGlynn, 20 Cal., 233; 81 Am. Dec., 118,
121.).
Although in the foregoing case the information filed by the State was to set aside the
decree of probate on the ground that the will was forged, we see no difference in
principle between that case and the case at bar. A subtle distinction could perhaps be
drawn between setting aside a decree of probate, and declaring a probated will to be a
forgery. It is clear, however, that a duly probated will cannot be declared to be a forgery
without disturbing in a way the decree allowing said will to probate. It is at least
anomalous that a will should be regarded as genuine for one purpose and spurious for
another.
The American and English cases show a conflict of authorities on the question as to
whether or not the probate of a will bars criminal prosecution of the alleged forger of the
probate will. We have examined some important cases and have come to the
conclusion that no fixed standard maybe adopted or drawn therefrom, in view of the
conflict no less than of diversity of statutory provisions obtaining in different jurisdictions.
It behooves us, therefore, as the court of last resort, to choose that rule most consistent
with our statutory law, having in view the needed stability of property rights and the
public interest in general. To be sure, we have seriously reflected upon the dangers of
evasion from punishment of culprits deserving of the severity of the law in cases where,
as here, forgery is discovered after the probate of the will and the prosecution is had
before the prescription of the offense. By and large, however, the balance seems
inclined in favor of the view that we have taken. Not only does the law surround the

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execution of the will with the necessary formalities and require probate to be made after
an elaborate judicial proceeding, but section 113, not to speak of section 513, of our
Code of Civil Procedure provides for an adequate remedy to any party who might have
been adversely affected by the probate of a forged will, much in the same way as other
parties against whom a judgment is rendered under the same or similar circumstances.
(Pecson vs.Coronel, 43 Phil., 358.)The aggrieved party may file an application for relief
with the proper court within a reasonable time, but in no case exceeding six months
after said court has rendered the judgment of probate, on the ground of mistake,
inadvertence, surprise or excusable neglect. An appeal lies to review the action of a
court of first instance when that court refuses to grant relief. (Banco Espaol
Filipino vs. Palanca, 37 Phil., 921; Philippine Manufacturing Co. vs. Imperial, 47 Phil.,
810; Samia vs. Medina, 56 Phil., 613.) After a judgment allowing a will to be probated
has become final and unappealable, and after the period fixed by section 113 of the
Code of Civil Procedure has expired, the law as an expression of the legislative wisdom
goes no further and the case ends there.
. . . The court of chancery has no capacity, as the authorities have settled, to
judge or decide whether a will is or is not a forgery; and hence there would be an
incongruity in its assuming to set aside a probate decree establishing a will, on
the ground that the decree was procured by fraud, when it can only arrive at the
fact of such fraud by first deciding that the will was a forgery. There seems,
therefore, to be a substantial reason, so long as a court of chancery is not
allowed to judge of the validity of a will, except as shown by the probate, for the
exception of probate decrees from the jurisdiction which courts of chancery
exercise in setting aside other judgments obtained by fraud. But whether the
exception be founded in good reason or otherwise, it has become too firmly
established to be disregarded. At the present day, it would not be a greater
assumption to deny the general rule that courts of chancery may set aside
judgments procured by fraud, than to deny the exception to that rule in the case
of probate decrees. We must acquiesce in the principle established by the
authorities, if we are unable to approve of the reason. Judge Story was a staunch
advocate for the most enlarged jurisdiction of courts of chancery, and was
compelled to yield to the weight of authority. He says "No other excepted case is
known to exist; and it is not easy to discover the grounds upon which this
exception stands, in point of reason or principle, although it is clearly settled by

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authority. (1 Storys Eq. Jur. sec. 440.)" (State vs. McGlynn, 20 Cal., 233; 81 Am.
Dec., 118, 129. See, also, Tracy vs. Muir, 121 American State Reports, 118, 125.)
We hold, therefore, that in view of the provisions of sections 306, 333 and 625 of our
Code of Civil Procedure, criminal action will not lie in this jurisdiction against the forger
of a will which had been duly admitted to probate by a court of competent jurisdiction.
The resolution of the foregoing legal question is sufficient to dispose of the case.
However, the other legal question with reference to the denial to the accused of his right
to a speedy trial having been squarely raised and submitted, we shall proceed to
consider the same in the light of cases already adjudicated by this court.
2. The Constitution of the Philippines provides that "In all criminal prosecutions the
accused . . . shall enjoy the right . . . to have a speedy . . . trial. . . . (Art. III, sec. 1, par.
17. See, also, G.O. No. 58, sec. 15, No. 7.) Similar provisions are to be found in the
Presidents Instructions to the Second Philippine Commission (par. 11), the Philippine
Bill of July 1, 1902 (sec. 5, par. 2) and the Jones Act of August 29, 1916 (sec. 3, par. 2).
The provisions in the foregoing organic acts appear to have been taken from similar
provisions in the Constitution of the United States (6th Amendment) and those of the
various states of the American Union. A similar injunction is contained in the Malolos
Constitution (art. 8, Title IV), not to speak of other constitutions. More than once this
court had occasion to set aside the proceedings in criminal cases to give effect to the
constitutional injunction of speedy trial. (Conde vs. Judge of First Instance and Fiscal of
Tayabas [1923], 45 Phil., 173; Conde vs. Rivera and Unson[1924], 45 Phil., 650;
People vs. Castaeda and Fernandez[1936]), 35 Off. Gaz., 1269; Kalaw vs. Apostol,
Oct. 15, 1937, G.R. No. 45591; Esguerra vs. De la Costa, Aug. 30,1938, G.R. No.
46039.).
In Conde vs. Rivera and Unson, supra, decided before the adoption of our Constitution,
we said.
Philippine organic and statutory law expressly guarantee that in all criminal
prosecutions the accused shall enjoy the right to have a speedy trial. Aurelia
Conde, like all other accused persons, has a right to a speedy trial in order that if
innocent she may go free, and she has been deprived of that right in defiance of

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law. Dismissed from her humble position, and compelled to dance attendance on
courts while investigations and trials are arbitrarily postponed without her
consent, is palpably and openly unjust to her and a detriment to the public. By
the use of reasonable diligence, the prosecution could have settled upon the
appropriate information, could have attended to the formal preliminary
examination, and could have prepared the case for a trial free from vexatious,
capricious, and oppressive delays.
In People vs. Castaeda and Fernandez, supra, this court found that the accused had
not been given a fair and impartial trial. The case was to have been remanded to the
court a quo for a new trial before an impartial judge. This step, however, was found
unnecessary. A review of the evidence convinced this court that a judgment of
conviction for theft, as charged, could not be sustained and, having in view the right to a
speedy trial guaranteed by the Constitution to every person accused of crime, entered a
judgment acquitting the accused, with costs de oficio. We said.
. . . The Constitution, Article III, section 1, paragraph 17, guarantees to every
accused person the right to a speedy trial. This criminal proceeding has been
dragging on for almost five years now. The accused have twice appealed to this
court for redress from the wrong that they have suffered at the hands of the trial
court. At least one of them, namely Pedro Fernandez alias Piro, had been confined in prison from July 20, 1932 to November 27, 1934, for inability to post the
required bond of P3,000 which was finally reduced to P300. The Government
should be the last to set an example of delay and oppression in the
administration of justice and it is the moral and legal obligation of this court to see
that the criminal proceedings against the accused come to an end and that they
be immediately dis-charged from the custody of the law. (Conde vs.Rivera and
Unson, 45 Phil., 651.)
In Kalaw vs. Apostol, supra, the petitioner invoked and this court applied and gave effect
to the doctrines stated in the second Conde case, supra. In granting the writs prayed
for, this court, after referring to the constitutional and statutory provisions guaranteeing
to persons accused of crime the right to a speedy trial, said:

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Se infiere de los preceptos legales transcritos que todo acusado en causa

criminal tiene derecho a ser juzgado pronta y publicamente. Juicio rapido
significa un juicioque se celebra de acuerdo con la ley de procedimiento criminal
y los reglamentos, libre de dilaciones vejatorias, caprichosas y opersivas
(Burnett vs.State, 76 Ark., 295; 88S. W., 956; 113 AMSR, 94; Stewart vs. State,
13 Ark., 720; Peo. vs. Shufelt, 61 Mich., 237; 28 N. W., 79; Nixon vs. State, 10
Miss., 497; 41 AMD., 601; State vs. Cole, 4 Okl. Cr., 25; 109 P., 736;
State vs. Caruthers, 1 Okl. Cr., 428; 98 P., 474; State vs. Keefe, 17 Wyo., 227, 98
p., 122;22 IRANS, 896; 17 Ann. Cas., 161). Segun los hechos admitidos resulta
que al recurrente se le concedio vista parcial del asunto, en el Juzgado de
Primera Instancia de Samar, solo despues de haber transcurrido ya mas de un
ao y medio desde la presentacion de la primera querella y desde la recepcion
de la causa en dicho Juzgado, y despues de haberse transferido dos veces la
vista delasunto sin su consentimiento. A esto debe aadirse que laprimera
transferencia de vista era claramente injustificadaporque el motivo que se alego
consistio unicamente en laconveniencia personal del ofendido y su abogado, no
habiendose probado suficientemente la alegacion del primero de quese hallaba
enfermo. Es cierto que el recurrente habia pedido que, en vez de sealarse a
vista el asunto para el mayo de 1936, lo fuera para el noviembre del mismo ao;
pero,aparte de que la razon que alego era bastante fuerte porquesu abogado se
oponia a comparecer por compromisos urgentes contraidos con anterioridad y
en tal circunstancia hubiera quedado indefenso si hubiese sido obligado a
entraren juicio, aparece que la vista se pospuso por el Juzgado amotu proprio,
por haber cancelado todo el calendario judicial preparado por el Escribano para
el mes de junio. Declaramos, con visto de estos hechos, que al recurrents se
leprivo de su derecho fundamental de ser juzgado prontamente.
Esguerra vs. De la Costa, supra, was a petition for mandamus to compel the
respondent judge of the Court of First Instance of Rizal to dismiss the complaint filed in
a criminal case against the petitioner, to cancel the bond put up by the said petitioner
and to declare the costs de oficio. In accepting the contention that the petitioner had
been denied speedy trial, this court said:
Consta que en menos de un ao el recurrente fue procesado criminalmente por
el alegado delito de abusos deshonestos, en el Juzgado de Paz del Municipio de

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Cainta, Rizal. Como consecuencia de las denuncias que contra el se

presentaron fue arrestado tres veces y para gozar de libertad provisional, en
espera de los juicios, se vio obligado a prestartres fianzas por la suma de P1,000
cada una. Si no se da fin al proceso que ultimamente se ha incoado contra el
recurrente la incertidumbre continuara cerniendose sobre el y las consiguientes
molestias y preocupaciones continuaran igualmente abrumandole. El Titulo III,
articulo 1, No. 17,de la Constitucion preceptua que en todo proceso criminalel
acusado tiene derecho de ser juzgado pronta y publicamente. El Articulo 15, No.
7, de la Orden General No. 58 dispone asimismo que en las causas criminales el
acusado tendra derecho a ser juzgado pronta y publicamente. Si el recurrente
era realmente culpable del delito que se le imputo, tenia de todos modos
derechos a que fuera juzgado pronta y publicamente y sin dilaciones arbitrarias y
vejatorias. Hemos declarado reiteradamente que existe un remedio positivo para
los casos en que se viola el derecho constitucional del acusado de ser juzgado
prontamente. El acusado que esprivado de su derecho fundomental de ser
enjuiciado rapidamente tiene derecho a pedir que se le ponga en libertad, si
estuviese detenido, o a que la causa que pende contra el sea sobreseida
definitivamente. (Conde contra Rivera y Unson, 45 Jur. Fil., 682; In the matter of
Ford [1911], 160 Cal., 334; U. S. vs. Fox [1880], 3 Mont., 512;
Kalaw contra Apostol, R. G. No. 45591, Oct. 15, 1937; Pueblo contra Castaeda
y Fernandez, 35 Gac. Of., 1357.)
We are again called upon to vindicate the fundamental right to a speedy trial. The facts
of the present case may be at variance with those of the cases hereinabove referred to.
Nevertheless, we are of the opinion that, under the circumstances, we should consider
the substance of the right instead of indulging in more or less academic or undue factual
differentiations. The petitioner herein has been arrested four times, has put up a bond in
the sum of P4,000 and has engaged the services of counsel to undertake his defense
an equal number of times. The first arrest was made upon a complaint filed by one of
the intervenors herein for alleged falsification of a will which, sixteen months before, had
been probated in court. This complaint, after investigation, was dismissed at the
complainant's own request. The second arrest was made upon a complaint charging the
same offense and this complaint, too, was dismissed at the behest of the complainant
herself who alleged the quite startling ground that the petitioner was in poor health. The
third arrest was made following the filing of an information by the provincial fiscal of

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Pampanga, which information was dismissed, after due investigation, because of

insufficiency of the evidence. The fourth arrest was made when the provincial fiscal
secured a reinvestigation of the case against the petitioner on the pretext that he had
additional evidence to present, although such evidence does not appear to have ever
been presented.
It is true that the provincial fiscal did not intervene in the case until February 2, 1934,
when he presented an information charging the petitioner, for the third time, of the
offense of falsification. This, however, does not matter. The prosecution of offenses is a
matter of public interest and it is the duty of the government or those acting in its behalf
to prosecute all cases to their termination without oppressive, capricious and vexatious
delay. The Constitution does not say that the right to a speedy trial may be availed of
only where the prosecution for crime is commenced and undertaken by the fiscal. It
does not exclude from its operation cases commenced by private individuals. Where
once a person is prosecuted criminally, he is entitled to a speedy trial, irrespective of the
nature of the offense or the manner in which it is authorized to be commenced. In any
event, even the actuations of the fiscal himself in this case is not entirely free from
criticism. From October 27, 1932, when the first complaint was filed in the justice of the
peace court of San Fernando, to February 2, 1934, when the provincial fiscal filed his
information with the justice of the peace of Mexico, one year, three months and six days
transpired; and from April 27, 1933, when the second criminal complaint was dismissed
by the justice of the peace of Mexico, to February 2, 1934, nine months and six days
elapsed. The investigation following the fourth arrest, made after the fiscal had secured
a reinvestigation of the case, appears also to have dragged on for about a year. There
obviously has been a delay, and considering the antecedent facts and circumstances
within the knowledge of the fiscal, the delay may not at all be regarded as permissible.
In Kalaw vs. Apostol, supra, we observed that the prosecuting officer all prosecutions for
public offenses (secs. 1681 and 2465 of the Rev. Adm. Code), and that it is his duty to
see that criminal cases are heard without vexatious, capricious and oppressive delays
so that the courts of justice may dispose of them on the merits and determine whether
the accused is guilty or not. This is as clear an admonition as could be made. An
accused person is entitled to a trial at the earliest opportunity. (Sutherland on the
Constitution, p. 664; United States vs. Fox, 3 Mont., 512.) He cannot be oppressed by
delaying he commencement of trial for an unreasonable length of time. If the
proceedings pending trial are deferred, the trial itself is necessarily delayed. It is not to

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be supposed, of course, that the Constitution intends to remove from the prosecution
every reasonable opportunity to prepare for trial. Impossibilities cannot be expected or
extraordinary efforts required on the part of the prosecutor or the court. As stated by the
Supreme Court of the United States, "The right of a speedy trial is necessarily relative. It
is consistent with delays and depends upon circumstances. It secures rights to a
defendant. It does not preclude the rights of public justice." (Beavers vs. Haubert [1905],
198 U. S., 86; 25 S. Ct., 573; 49 Law. ed., 950, 954.).
It may be true, as seems admitted by counsel for the intervenors, in paragraph 8, page
3 of his brief, that the delay was due to "the efforts towards reaching an amicable
extrajudicial compromise," but this fact, we think, casts doubt instead upon the motive
which led the intervenors to bring criminal action against the petitioner. The petitioner
claims that the intention of the intervenors was to press upon settlement, with the
continuous threat of criminal prosecution, notwithstanding the probate of the will alleged
to have been falsified. Argument of counsel for the petitioner in this regard is not without
justification. Thus after the filing of the second complaint with the justice of the peace
court of Mexico, complainant herself, as we have seen, asked for dismissal of the
complaint, on the ground that "el acusado tenia la salud bastante delicada," and,
apparently because of failure to arrive at any settlement, she decided to renew her
complaint.
Counsel for the intervenors contend and the contention is sustained by the Court of
Appeals that the petitioner did not complain heretofore of the denial of his
constitutional right to a speedy trial. This is a mistake. When the petitioner, for the fourth
time, was ordered arrested by the Court of First Instance of Pampanga, he moved for
reconsideration of the order of arrest, alleging, among other things, "Que por estas
continuas acusaciones e investigaciones, el acusado compareciente no obstante su
mal estado de salud desde el ao 1932 en que tuvo que ser operado por padecer de
tuberculosis ha tenido que sostener litigios y ha sufrido la mar de humiliaciones y
zozobras y ha incudo en enormes gastos y molestias y ha desatendido su quebrantada
salud." The foregoing allegation was inserted on page 6 of the amended petition
for certiorari presented to the Court of Appeals. The constitutional issue also appears to
have been actually raised and considered in the Court of Appeals. In the majority
opinion of that court, it is stated:

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Upon the foregoing facts, counsel for the petitioner submits for the consideration
of this court the following questions of law: First, that the respondent court acted
arbitrarily and with abuse of its authority, with serious damage and prejudice to
the rights and interests of the petitioner, in allowing that the latter be prosecuted
and arrested for the fourth time, and that he be subjected, also for the fourth
time, to a preliminary investigation for the same offense, hereby converting the
court into an instrument of oppression and vengeance on the part of the alleged
offended parties, Rosario Basa et al.; . . . .
And in the dissenting opinion, we find the following opening paragraph:
We cannot join in a decision declining to stop a prosecution that has dragged for
about five years and caused the arrest on four different occasions of a law
abiding citizen for the alleged offense of falsifying a will that years be competent
jurisdiction.
From the view we take of the instant case, the petitioner is entitled to have the criminal
proceedings against him quashed. The judgment of the Court of Appeals is hereby
reversed, without pronouncement regarding costs. So ordered.
Avancea, C.J., Villa-Real, Imperial, Diaz and Concepcion, JJ., concur.

RULES COURT

SUPREME COURT
Manila
EN BANC
G.R. No. L-48840 December 29, 1943
ERNESTO M. GUEVARA, petitioner-appellant,
vs.
ROSARIO GUEVARA and her husband PEDRO BUISON, respondent-appellees.
Primacias, Abad, Mencias & Castillo for appellant.
Pedro C. Quinto for appellees.
OZAETA, J.:
Ernesto M. Guevarra and Rosario Guevara, ligitimate son and natural daughter,
respectively, of the deceased Victorino L. Guevara, are litigating here over their
inheritance from the latter. The action was commenced on November 12, 1937, by
Rosario Guevara to recover from Ernesto Guevara what she claims to be her strict
ligitime as an acknowledged natural daughter of the deceased to wit, a portion of
423,492 square meters of a large parcel of land described in original certificate of title
No. 51691 of the province of Pangasinan, issued in the name of Ernesto M. Guervara
and to order the latter to pay her P6,000 plus P2,000 a year as damages for
withholding such legitime from her. The defendant answered the complaint contending
that whatever right or rights the plaintiff might have had, had been barred by the
operation of law.
It appears that on August 26, 1931, Victorino L. Guevara executed a will (exhibit A),
apparently with all the formalities of the law, wherein he made the following bequests:
To his stepdaughter Candida Guevara, a pair of earrings worth P150 and a gold chain

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worth P40; to his son Ernesto M. Guevara, a gold ring worth P180 and all the furniture,
pictures, statues, and other religious objects found in the residence of the testator in
Poblacion Sur, Bayambang, Pangasinan; "a mi hija Rosario Guevara," a pair of earrings
worth P120; to his stepson Piuo Guevara, a ring worth P120; and to his wife by second
marriage, Angustia Posadas, various pieces of jewelry worth P1,020.
He also made the following devises: "A mis hijos Rosario Guevara y Ernesto M.
Guevara y a mis hijastros, Vivencio, Eduviges, Dionisia, Candida y Pio, apellidados
Guevara," a residential lot with its improvements situate in the town of Bayambang,
Pangasinan, having an area of 960 square meters and assessed at P540; to his wife
Angustia Posadas he confirmed the donation propter nuptias theretofore made by him
to her of a portion of 25 hectares of the large parcel of land of 259-odd hectares
described in plan Psu-66618. He also devised to her a portion of 5 hectares of the same
parcel of land by way of complete settlement of her usufructurary right.1awphil.net
He set aside 100 hectares of the same parcel of land to be disposed of either by him
during his lifetime or by his attorney-in-fact Ernesto M. Guevara in order to pay all his
pending debts and to degray his expenses and those of his family us to the time of his
death.
The remainder of said parcel of land his disposed of in the following manner:
(d). Toda la porcion restante de mi terreno arriba descrito, de la extension
superficial aproximada de ciento veintinueve (129) hectareas setenta (70) areas,
y veiticinco (25) centiares, con todas sus mejoras existentes en la misma, dejo y
distribuyo, pro-indiviso, a mis siguientes herederos como sigue:
A mi hijo legitimo, Ernesto M. Guevara, ciento ocho (108) hectareas, ocho (8)
areas y cincuenta y cuatro (54) centiareas, hacia la parte que colinda al Oeste de
las cien (100) hectareas referidas en el inciso (a) de este parrafo del testamento,
como su propiedad absoluta y exclusiva, en la cual extension superficial estan
incluidas cuarenta y tres (43) hectareas, veintitres (23) areas y cuarenta y dos
(42) centiareas que le doy en concepto de mejora.

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A mi hija natural reconocida, Rosario Guevara, veintiun (21) hectareas, sesenta y

un (61) areas y setenta y un (71) centiareas, que es la parte restante.
Duodecimo. Nombro por la presente como Albacea Testamentario a mi hijo
Ernesto M. Guevara, con relevacion de fianza. Y una vez legalizado este
testamento, y en cuanto sea posible, es mi deseo, que los herederos y legatarios
aqui nombrados se repartan extrajudicialmente mis bienes de conformidad con
mis disposiciones arriba consignadas.
Subsequently, and on July 12, 1933, Victorino L. Guevarra executed whereby he
conveyed to him the southern half of the large parcel of land of which he had theretofore
disposed by the will above mentioned, inconsideration of the sum of P1 and other
valuable considerations, among which were the payment of all his debts and obligations
amounting to not less than P16,500, his maintenance up to his death, and the expenses
of his last illness and funeral expenses. As to the northern half of the same parcel of
land, he declared: "Hago constar tambien que reconozco a mi referido hijo Ernesto M.
guevara como dueo de la mitad norte de la totalidad y conjunto de los referidos
terrenos por haberlos comprado de su propio peculio del Sr. Rafael T. Puzon a quien
habia vendido con anterioridad."
On September 27, 1933, final decree of registration was issued in land registration case
No. 15174 of the Court of First Instance of Pangasinan, and pursuant thereto original
certificate of title No. 51691 of the same province was issued on October 12 of the
same year in favor of Ernesto M. Guevara over the whole parcel of land described in the
deed of sale above referred to. The registration proceeding had been commenced on
November 1, 1932, by Victorino L. Guevara and Ernesto M. Guevara as applicants, with
Rosario, among others, as oppositor; but before the trial of the case Victorino L.
Guevara withdrew as applicant and Rosario Guevara and her co-oppositors also
withdrew their opposition, thereby facilitating the issuance of the title in the name of
Ernesto M. Guevara alone.
On September 27, 1933, Victorino L. Guevarra died. His last will and testament,
however, was never presented to the court for probate, nor has any administration
proceeding ever been instituted for the settlement of his estate. Whether the various
legatees mentioned in the will have received their respective legacies or have even

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been given due notice of the execution of said will and of the dispositions therein made
in their favor, does not affirmatively appear from the record of this case. Ever since the
death of Victorino L. Guevara, his only legitimate son Ernesto M. Guevara appears to
have possessed the land adjudicated to him in the registration proceeding and to have
disposed of various portions thereof for the purpose of paying the debts left by his
father.
In the meantime Rosario Guevara, who appears to have had her father's last will and
testament in her custody, did nothing judicially to invoke the testamentary dispositions
made therein in her favor, whereby the testator acknowledged her as his natural
daughter and, aside from certain legacies and bequests, devised to her a portion of
21.6171 hectares of the large parcel of land described in the will. But a little over four
years after the testor's demise, she (assisted by her husband) commenced the present
action against Ernesto M. Guevara alone for the purpose hereinbefore indicated; and it
was only during the trial of this case that she presented the will to the court, not for the
purpose of having it probated but only to prove that the deceased Victirino L. Guevara
had acknowledged her as his natural daughter. Upon that proof of acknowledgment she
claimed her share of the inheritance from him, but on the theory or assumption that he
died intestate, because the will had not been probated, for which reason, she asserted,
the betterment therein made by the testator in favor of his legitimate son Ernesto M.
Guevara should be disregarded. Both the trial court and the Court of appeals sustained
that theory.
Two principal questions are before us for determination: (1) the legality of the procedure
adopted by the plaintiff (respondent herein) Rosario Guevara; and (2) the efficacy of the
deed of sale exhibit 2 and the effect of the certificate of title issued to the defendant
(petitioner herein) Ernesto M. Guevara.
I
We cannot sanction the procedure adopted by the respondent Rosario Guevara, it
being in our opinion in violation of procedural law and an attempt to circumvent and
disregard the last will and testament of the decedent. The Code of Civil Procedure,
which was in force up to the time this case was decided by the trial court, contains the
following pertinent provisions:

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Sec. 625. Allowance Necessary, and Conclusive as to Execution. No will shall

pass either the real or personal estate, unless it is proved and allowed in the
Court of First Instance, or by appeal to the Supreme Court; and the allowance by
the court of a will of real and personal estate shall be conclusive as to its due
execution.
Sec. 626. Custodian of Will to Deliver. The person who has the custody of a
will shall, within thirty days after he knows of the death of the testator, deliver the
will into the court which has jurisdiction, or to the executor named in the will.
Sec. 627. Executor to Present Will and Accept or Refuse Trust. A person
named as executor in a will, shall within thirty days after he knows of the death of
the testor, or within thirty days after he knows that he is named executor, if he
obtained such knowledge after knowing of the death of the testor, present such
will to the court which has jurisdiction, unless the will has been otherwise
returned to said court, and shall, within such period, signify to the court his
acceptance of the trust, or make known in writing his refusal to accept it.
Sec. 628. Penalty. A person who neglects any of the duties required in the two
proceeding sections, unless he gives a satisfactory excuse to the court, shall be
subject to a fine not exceeding one thousand dollars.
Sec. 629. Person Retaining Will may be Committed. If a person having
custody of a will after the death of the testator neglects without reasonable cause
to deliver the same to the court having jurisdiction, after notice by the court so to
do, he may be committed to the prison of the province by a warrant issued by the
court, and there kept in close confinement until he delivers the will.
The foregoing provisions are now embodied in Rule 76 of the new Rules of Court, which
took effect on July 1, 1940.
The proceeding for the probate of a will is one in rem, with notice by publication to the
whole world and with personal notice to each of the known heirs, legatees, and
devisees of the testator (section 630, C. c. P., and sections 3 and 4, Rule 77). Altho not
contested (section 5, Rule 77), the due execution of the will and the fact that the testator

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at the time of its execution was of sound and disposing mind and not acting under
duress, menace, and undue influence or fraud, must be proved to the satisfaction of the
court, and only then may the will be legalized and given effect by means of a certificate
of its allowance, signed by the judge and attested by the seal of the court; and when the
will devises real property, attested copies thereof and of the certificate of allowance
must be recorded in the register of deeds of the province in which the land lies. (Section
12, Rule 77, and section 624, C. C. P.)
It will readily be seen from the above provisions of the law that the presentation of a will
to the court for probate is mandatory and its allowance by the court is essential and
indispensable to its efficacy. To assure and compel the probate of will, the law punishes
a person who neglects his duty to present it to the court with a fine not exceeding
P2,000, and if he should persist in not presenting it, he may be committed to prision and
kept there until he delivers the will.
The Court of Appeals took express notice of these requirements of the law and held that
a will, unless probated, is ineffective. Nevertheless it sanctioned the procedure adopted
by the respondent for the following reasons:
The majority of the Court is of the opinion that if this case is dismissed ordering
the filing of testate proceedings, it would cause injustice, incovenience, delay,
and much expense to the parties, and that therefore, it is preferable to leave
them in the very status which they themselves have chosen, and to decide their
controversy once and for all, since, in a similar case, the Supreme Court applied
that same criterion (Leao vs. Leao, supra), which is now sanctioned by section
1 of Rule 74 of the Rules of Court. Besides, section 6 of Rule 124 provides that, if
the procedure which the court ought to follow in the exercise of its jurisdiction is
not specifically pointed out by the Rules of Court, any suitable process or mode
of procedure may be adopted which appears most consistent to the spirit of the
said Rules. Hence, we declare the action instituted by the plaintiff to be in
accordance with law.
Let us look into the validity of these considerations. Section 1 of Rule 74 provides as
follows:

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Section 1. Extrajudicial settlement by agreement between heirs. If the

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

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One can have a will probated without necessarily securing letters testamentary or of
administration. We hold that under section 1 of Rule 74, in relation to Rule 76, if the
decedent left a will and no debts and the heirs and legatees desire to make an
extrajudicial partition of the estate, they must first present that will to the court for
probate and divide the estate in accordance with the will. They may not disregard the
provisions of the will unless those provisions are contrary to law. Neither may they so
away with the presentation of the will to the court for probate, because such
suppression of the will is contrary to law and public policy. The law enjoins the probate
of the will and public policy requires it, because unless the will is probated and notice
thereof given to the whole world, the right of a person to dispose of his property by will
may be rendered nugatory, as is attempted to be done in the instant case. Absent
legatees and devisees, or such of them as may have no knowledge of the will, could be
cheated of their inheritance thru the collusion of some of the heirs who might agree to
the partition of the estate among themselves to the exclusion of others.
In the instant case there is no showing that the various legatees other than the present
litigants had received their respective legacies or that they had knowledge of the
existence and of the provisions of the will. Their right under the will cannot be
disregarded, nor may those rights be obliterated on account of the failure or refusal of
the custodian of the will to present it to the court for probate.
Even if the decedent left no debts and nobdy raises any question as to the authenticity
and due execution of the will, none of the heirs may sue for the partition of the estate in
accordance with that will without first securing its allowance or probate by the court,
first, because the law expressly provides that "no will shall pass either real or personal
estate unless it is proved and allowed in the proper court"; and, second, because the
probate of a will, which is a proceeding in rem, cannot be dispensed with the substituted
by any other proceeding, judicial or extrajudicial, without offending against public policy
designed to effectuate the testator's right to dispose of his property by will in accordance
with law and to protect the rights of the heirs and legatees under the will thru the means
provided by law, among which are the publication and the personal notices to each and
all of said heirs and legatees. Nor may the court approve and allow the will presented in
evidence in such an action for partition, which is one in personam, any more than it
could decree the registration under the Torrens system of the land involved in an
ordinary action for reinvindicacion or partition.

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We therefore believe and so hold that section 1 of Rule 74, relied upon by the Court of
Appeals, does not sanction the procedure adopted by the respondent.
The case of Leao vs. Leao (25 Phil., 180), cited by the Court of Appeals, like section
1 of Rule 74, sanctions the extrajudicial partition by the heirs of the properties left by a
decedent, but not the nonpresentation of a will for probate. In that case one Paulina Ver
executed a will on October 11, 1902, and died on November 1, 1902. Her will was
presented for probate on November 10, 1902, and was approved and allowed by the
Court on August 16, 1904. In the meantime, and on November 10, 1902, the heirs went
ahead and divided the properties among themselves and some of them subsequently
sold and disposed of their shares to third persons. It does not affirmatively appear in the
decision in that case that the partition made by the heirs was not in accordance with the
will or that they in any way disregarded the will. In closing the case by its order dated
September 1, 1911, the trial court validated the partition, and one of the heirs,
Cunegunda Leao, appealed. In deciding the appeal this Court said:
The principal assignment of error is that the lower court committed an error in
deciding that the heirs and legatees of the estate of Da. Paulina Ver had
voluntarily divided the estate among themselves.
In resolving that question this Court said:
In view of the positive finding of the judge of the lower court that there had been
a voluntary partition of the estate among the heirs and legatees, and in the
absence of positive proof to the contrary, we must conclude that the lower court
had some evidence to support its conclusion.
Thus it will be seen that as a matter of fact no question of law was raised and decided in
that case. That decision cannot be relied upon as an authority for the unprecedented
and unheard of procedure adopted by the respondent whereby she seeks to prove her
status as an acknowledged natural child of the decedent by his will and attempts to
nullify and circumvent the testamentary dispositions made by him by not presenting the
will to the court for probate and by claiming her legitime as an acknowledged natural
child on the basis of intestacy; and that in the face of express mandatory provisions of
the law requiring her to present the will to the court for probate.

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In the subsequent case of Riosa vs. Rocha (1926), 48 Phil. 737, this Court departed
from the procedure sanctioned by the trial court and impliedly approved by this Court in
the Leao case, by holding that an extrajudicial partition is not proper in testate
succession. In the Riosa case the Court, speaking thru Chief Justice Avancea, held:
1. EXTRAJUDICIAL PARTITION; NOT PROPER IN TESTATE SUCCESSION.
Section 596 of the Code of Civil Procedure, authorizing the heirs of a person who
dies intestate to make extrajudicial partition of the property of the deceased,
without going into any court of justice, makes express reference to intestate
succession, and therefore excludes testate succession.
2. ID.; EFFECTS OF; TESTATE SUCCESSION. In the instant case, which is a
testate succession, the heirs made an extrajudicial partition of the estate and at
the same time instituted proceeding for the probate of the will and the
administration of the estate. When the time came for making the partition, they
submitted to the court the extrajudicial partition previously made by them, which
the court approved. Held: That for the purposes of the reservation and the rights
and obligations created thereby, in connection with the relatives benefited, the
property must not be deemed transmitted to the heirs from the time the
extrajudicial partition was made, but from the time said partition was approved by
the court. (Syllabus.)
The Court of Appeals also cites section 6 of Rule 124, which provides that if the
procedure which the court ought to follow in the exercise of its jurisdiction is not
specifically pointed out by the Rules of Court, any suitable process for mode of
proceeding may be adopted which appears most conformable to the spirit of the said
Rules. That provision is not applicable here for the simple reason that the procedure
which the court ought to follow in the exercise of its jurisdiction is specifically pointed out
and prescribed in detail by Rules 74, 76, and 77 of the Rules of Court.
The Court of Appeals also said "that if this case is dismissed, ordering the filing of
testate proceedings, it would cause injustice, inconvenience, delay, and much expense
to the parties." We see no injustice in requiring the plaintiff not to violate but to comply
with the law. On the contrary, an injustice might be committed against the other heirs
and legatees mentioned in the will if the attempt of the plaintiff to nullify said will by not

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presenting it to the court for probate should be sanctioned. As to the inconvenience,

delay, and expense, the plaintiff herself is to blame because she was the custodian of
the will and she violated the duty imposed upon her by sections 2, 4, and 5 of Rule 76,
which command her to deliver said will to the court on pain of a fine not exceeding
P2,000 and of imprisonment for contempt of court. As for the defendant, he is not
complaining of inconvenience, delay, and expense, but on the contrary he is insisting
that the procedure prescribed by law be followed by the plaintiff.
Our conclusion is that the Court of Appeals erred in declaring the action instituted by the
plaintiff to be in accordance with law. It also erred in awarding relief to the plaintiff in this
action on the basis of intestacy of the decedent notwithstanding the proven existence of
a will left by him and solely because said will has not been probated due to the failure of
the plaintiff as custodian thereof to comply with the duty imposed upon her by the law.
It is apparent that the defendant Ernesto M. Guevara, who was named executor in said
will, did not take any step to have it presented to the court for probate and did not signify
his acceptance of the trust or refusal to accept it as required by section 3 of Rule 76
(formerly section 627 of the Code of Civil Procedure), because his contention is that
said will, insofar as the large parcel of land in litigation is concerned, has been
superseded by the deed of sale exhibit 2 and by the subsequent issuance of the Torrens
certificate of title in his favor.
II
This brings us to the consideration of the second question, referring to the efficacy of
the deed of sale exhibit 2 and the effect of the certificate of titled issued to the defendant
Ernesto M. Guevara. So that the parties may not have litigated here in vain insofar as
that question is concerned, we deem it proper to decide it now and obviate the
necessity of a new action.
The deed of sale exhibit 2 executed by and between Victorino L. Guevara and Ernesto
M. Guevara before a notary public on July 12, 1933, may be divided into two parts: (a)
insofar as it disposes of and conveys to Ernesto M. Guevara the southern half of
Victorino L. Guevara's hacienda of 259-odd hectares in consideration of P1 and other
valuable considerations therein mentioned; and (b) insofar as it declares that Ernesto M.

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Guevara became the owner of the northern half of the same hacienda by repurchasing
it with his own money from Rafael T. Puzon.
A. As to the conveyance of the southern half of the hacienda to Ernesto M. Guevara in
consideration of the latter's assumption of the obligation to pay all the debts of the
deceased, the Court of Appeals found it to be valid and efficacious because: "(a) it has
not been proven that the charges imposed as a condition is [are] less than the value of
the property; and (b) neither has it been proven that the defendant did not comply with
the conditions imposed upon him in the deed of transfer." As a matter of fact the Court
of Appeals found" "It appears that the defendant has been paying the debts left by his
father. To accomplish this, he had to alienate considerable portions of the abovementioned land. And we cannot brand such alienation as anomalous unless it is proven
that they have exceeded the value of what he has acquired by virtue of the deed of July
12, 1933, and that of his corresponding share in the inheritance." The finding of the
Court of Appeals on this aspect of the case is final and conclusive upon the respondent,
who did not appeal therefrom.
B. With regard to the northern half of the hacienda, the findings of fact and of law made
by the Court of Appeals are as follows:
The defendant has tried to prove that with his own money, he bought from Rafael
Puzon one-half of the land in question, but the Court a quo, after considering the
evidence, found it not proven; we hold that such conclusion is well founded. The
acknowledgment by the deceased, Victorino L. Guevara, of the said transactions,
which was inserted incidentally in the document of July 12, 1933, is clearly belied
by the fact that the money paid to Rafael Puzon came from Silvestre P. Coquia,
to whom Victorino L. Guevara had sold a parcel of land with the right of
repurchase. The defendant, acting for his father, received the money and
delivered it to Rafael Puzon to redeem the land in question, and instead of
executing a deed of redemption in favor of Victorino L. Guevara, the latter
executed a deed of sale in favor of the defendant.
The plaintiff avers that she withdrew her opposition to the registration of the land
in the name of the defendant, because of the latter's promise that after paying all
the debt of their father, he would deliver to her and to the widow their

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corresponding shares. As their father then was still alive, there was no reason to
require the delivery of her share and that was why she did not insist on her
opposition, trusting on the reliability and sincerity of her brother's promise. The
evidence shows that such promise was really made. The registration of land
under the Torrens system does not have the effect of altering the laws of
succession, or the rights of partition between coparceners, joint tenants, and
other cotenants nor does it change or affect in any other way any other rights and
liabilities created by law and applicable to unregistered land (sec. 70, Land
Registration Law). The plaintiff is not, then, in estoppel, nor can the doctrine
of res judicata be invoked against her claim. Under these circumstances, she has
the right to compel the defendant to deliver her corresponding share in the estate
left by the deceased, Victorino L. Guevara.
In his tenth to fourteenth assignments of error the petitioner assails the foregoing
findings of the Court of Appeals. But the findings of fact made by said court are final and
not reviewable by us on certiorari. The Court of Appeals found that the money with
which the petitioner repurchased the northern half of the land in question from Rafael
Puzon was not his own but his father's, it being the proceeds of the sale of a parcel of
land made by the latter to Silvestre P. Coquia. Said court also found that the respondent
withdrew her opposition to the registration of the land in the name of the petitioner upon
the latter's promise that after paying all the debts of their father he would deliver to her
and to the widow their corresponding shares. From these facts, it results that the
interested parties consented to the registration of the land in question in the name of
Ernesto M. Guevara alone subject to the implied trust on account of which he is under
obligation to deliver and convey to them their corresponding shares after all the debts of
the original owner of said land had been paid. Such finding does not constitute a
reversal of the decision and decree of registration, which merely confirmed the
petitioner's title; and in the absence of any intervening innocent third party, the petitioner
may be compelled to fulfill the promise by virtue of which he acquired his title. That is
authorized by section 70 of the Land Registration Act, cited by the Court of Appeals, and
by the decision of this Court in Severino vs. Severino, 44 Phil., 343, and the cases
therein cited.
Upon this phase of the litigation, we affirm the finding of the Court of Appeals that the
northern half of the land described in the will exhibit A and in original certificate of title

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No. 51691 still belongs to the estate of the deceased Victorino L. Guevara. In the event
the petitioner Ernesto M. Guevara has alienated any portion thereof, he is under
obligation to compensate the estate with an equivalent portion from the southern half of
said land that has not yet been sold. In other words, to the estate of Victorino L.
Guevara still belongs one half of the total area of the land described in said original
certificate of title, to be taken from such portions as have not yet been sold by the
petitioner, the other half having been lawfully acquired by the latter in consideration of
his assuming the obligation to pay all the debts of the deceased.
Wherefore, that part of the decision of the Court of Appeals which declares in effect that
notwithstanding exhibit 2 and the issuance of original certificate of title No. 51691 in the
name of Ernesto M. Guevara, one half of the land described in said certificate of title
belongs to the estate of Victorino L. Guevara and the other half to Ernesto M. Guevara
in consideration of the latter's assumption of the obligation to pay all the debts of the
deceased, is hereby affirmed; but the judgment of said court insofar as it awards any
relief to the respondent Rosario Guevara in this action is hereby reversed and set aside,
and the parties herein are hereby ordered to present the document exhibit A to the
proper court for probate in accordance with law, without prejudice to such action as the
provincial fiscal of Pangasinan may take against the responsible party or parties under
section 4 of Rule 76. After the said document is approved and allowed by the court as
the last will and testament of the deceased Victorino L. Guevara, the heirs and legatees
therein named may take such action, judicial or extrajudicial, as may be necessary to
partition the estate of the testator, taking into consideration the pronouncements made
in part II of this opinion. No finding as to costs in any of the three instances.
Yulo, C.J., and Hontiveros, 1 J., concur.
Separate Opinions
BOCOBO, J., concurring:

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I concur in the result. Extrajudicial settlement by agreement among the heirs is

authorized by section 1 of Rule 74. only "if the decedent left no debts." In this case,
according to the findings of the Court of Appeals, Ernesto M. Guevara "has been paying
the debts left by his father." It is true that said Ernesto M. Guevara, in consideration of
the conveyance to him of the southern half of the hacienda, assumed all the debts of
the deceased, but this agreement is binding only upon the parties to the contract but not
upon the creditors who did not consent thereto. (Art. 1205, Civil Code.) There being
debts when the father died, section 1 of Rule 74 is not applicable.
MORAN, J., concurring in part and dissenting in part:
I would be agreeable to the majority decision but for a statement therein made which in
my view repeals by an erroneous interpretation the provisions of Rule 74, section 1, of
the Rules of Court, which reads as follows:
EXTRAJUDICIAL SETTLEMENT BY AGREEMENT BETWEEN HEIRS. If the
decedent left no debts and the heirs and legatees are all of age, or the minors
are represented by their judicial guardians, the parties may, without securing
letters of administration, divide the estate among themselves as they see fit by
means of a public instrument filed in the office of the register of deeds, and
should they disagree, they may do so in an ordinary action of partition. If there is
means of an affidavit filed in the office of the register of deeds. It shall be
presumed that the decedent left no debts if no creditor files a petition for letters of
administration within two years after the death of the decedent.
The majority holds that under this provision, the heirs and legatees, even if all of them
are of age, and there are no debts to be paid, cannot make an extrajudicial settlement
of the estate left by the decedent without first submitting in court for probate the will left
by the testator. This erroneous interpretation clearly overlooks not only the letter and the
spirit but more specially the whole background of the provision.
It is admitted that the provision has been taken from section 596 of Act No. 190 but with
modification consisting in that it is made to apply in testate succession. Said section 596
reads:

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SETTLEMENT OF CERTAIN INTESTATE ESTATES WITHOUT LEGAL

PROCEEDINGS. Whenever all the heirs of a person who died intestate are of
lawful age and legal capacity, and there are no debts due from the estate, or all
the debts have been paid the heirs may, by agreement duly executed in writing
by all of them, and not otherwise, apportion and divide the estate among
themselves, as they may see fit, without proceedings in court.
It must be observed that the procedure contemplated in this legal provision is
completely extrajudicial and the same procedure intended in section 1 of Rule 74 above
quoted which is captioned "Extrajudicial Settlement by Agreement . . .". Justice Laurel,
who was one of the members of this Court when the new Rules were promulgated, in
commenting upon Rule 74, said:
RULE 74. SUMMARY SETTLEMENT OF ESTATES. The corresponding
provisions in the Code of Civil Procedures are sections 596-598. There is
substantial analogy between the provisions of the Code of Civil Procedure and
those of Rule 74, save that: (1) Under section 1 of Rule 74, there may be
extrajudicial settlement whether a person died testate or intestate, while under
section 596 of the Code of Civil Procedure extrajudicial settlement can be had
only when a person dies intestate. (2) Under Rule 74, section 1, extrajudicial
settlement may take place 'if the decedent left no debts,' while under section 596
of the Code of Civil Procedure it may take place 'when there are no debts due
from the estate, or all the debts have been paid.' (3) Under section 596 of the
Code of Civil Procedure, extrajudicial settlement may take place when 'the heirs
and legatees are of lawful age and legal capacity, while under section 1 of Rule
74 it may take place when the 'the heirs and legatees are all of legal age, or the
minors are represented by their judicial guardians' (4) Unlike the Code of Civil
Procedure, section 596, section 1 of Rule 74 requires the extrajudicial agreement
to be filed in the office of the register of deeds; provides that should the heirs
disagree, 'they may do so in an ordinary action of partition', and that 'if there is
means of an affidavit filed in the office of the register of deeds', and that 'it shall
be presumed that the decedent left no debts if no creditor files a petition for letter
of administration within two years after the death of the decedent.' [(Emphasis
mine); Laurel, Procedural Reform in the Philippines, pp. 137-138].

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The phrase "extrajudicial settlement" unquestionably means liquidation and distribution

of the estate without judicial proceeding. In other words, even in cases of testate
succession, the heirs and legatees, when they are all of age or are represented by their
judicial guardians, and there are no debts to be paid, are allowed by section 1 of Rule
74 of the Rules of Court to liquidate and distribute among themselves the estate left by
the decedent and need not go to court even for the probate of the will. Unless legal
terms mean nothing, this is clearly what it meant in said provision by the words
"extrajudicial settlement" and by the clause " . . . the parties may, without securing
letters of administration, divide the estate among themselves as they see fit" . . . . When
judicial administration is made unnecessary by the provision, the inevitable implication
is that the probate of the will is also unnecessary, the probate having no other object
than administration for purposes of distribution according to the provisions of the will.
That is why section 4 of rule 78 provides:
ESTATE, HOW ADMINISTERED. When a will is thus allowed, the court shall
grant letters testamentary, or letters of administration with the will annexed, such
letters testamentary or of administration shall extend to all the estate of the
testator in the Philippines. Such estate, after the payment of just debts and
expenses of administration, shall be disposed of according to such will, so far as
such will may operate upon it; and the residue, if any, shall be disposed of as is
provided by law in cases of estates in the Philippines belonging to persons who
are inhabitants of another state or country.
If judicial administration and distribution is made unnecessary by section 1 of Rule 74,
then, I repeat, the probate of the will being purposeless, becomes unnecessary. If the
parties have already divided the estate in accordance with the will, the probate of the
will is a useless ceremony. If they have divided the estate in a different manner, the
probate of the will is worse than useless; it is ridiculous. The following words of this
Court in a previous case may well be here reiterated:
These sections provide for the voluntary division of the whole property of the
decedent without proceedings in court. The provisions which they contain are
extremely important. The wisdom which underlies them is apparent. It is the
undisputed policy of every people which maintains the principle of private
ownership of property that he who owns a thing shall not be deprived of its

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possession or use except for the most urgent and imperative reasons and then
only so long as is necessary to make the rights which underlie those reasons
effective. It is a principle of universal acceptance which declares that one has the
instant right to occupy and use that which he owns, and it is only in the presence
of reasons of the strongest and most urgent nature that the principle is prevented
from accomplishing the purpose which underlies it. The force which gave birth to
this stern and imperious principle is the same force which destroyed the feudal
despotism and created the democracy of private owners.
These provisions should, therefore, be given the most liberal construction so that
the intent of the framers may be fully carried out. They should not be straitened
or narrowed but should rather be given that wideness and fullness of application
without which they cannot produce their most beneficial effects.
. . . The purpose which underlies them, as we have already intimated, is to put
into one's hands the property which belongs to him not only at the earliest
possible moment but also with the least possible expense. By permitting the
partition and division without proceedings in court no time is lost and substantially
all expense and waste are saved. This is as it should be. The State fails
wretchedly in its duly to its citizens if the machinery furnished by it for the division
and distribution of the property of a decedent is so cumbersome, unwieldy and
expensive that a considerable portion of the estate is absorbed in the process of
such division. . . . (McMicking vs. Sy Conbieng, 21 Phil., 211; 219-220).
Indeed, there can be no valid reason why the probate of a will may not be dispensed
with by agreement of all the parties interested and the estate left by the decedent
settled extrajudicially among all the heirs and legatees, as is now provided in section 1
of Rule 74. It is well recognized that the allowance of a will gives conclusiveness merely
to its provisions which are governed by the substantive law regarding descent and
distribution. If so, why cannot all the parties interested agree, without going to court, that
the will of the decedent is in form valid (this being the only point to be litigated in a
probate proceeding), and that they will divide the inheritance in the manner acceptable
to them? The procedure would not be against public policy or the law placing in the
hands of the courts the probate of wills, because what the courts are enjoined to do for
the benefit of the parties, the latter have already done. As long as the extrajudicial

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partition of the estate does not affect the rights of third parties and is not rendered
invalid by any provision of the substantive law, no possible objection can be raised
thereto. On practical considerations, it would be useless to force the parties, at their
expense, to go thru the formality of probating a will and dividing the estate in
accordance therewith, because as soon as the routine is over, they are of course free to
make such transfers to one another as will be necessary to effect a partition which they
would have made if they were allowed to settle the estate extrajudicially. It is true that
there are provisions in the Rules of Court compelling the delivery of a will to the
competent court and punishing omissions to do so, but said provisions are calculated to
protect the interests of the persons entitled to share in the inheritance. The latter may
waive such benefit. This waiver cannot be said to be withdrawal or diminution of the
jurisdiction of the court, since it only implies a desire of the parties not to litigate. The
fear that "absent legatees and devisees, or such of them as may have no knowledge of
the will, could be cheated of their inheritance thru the collusion of some of the heirs who
might agree to the partition of the estate among themselves to the exclusion of others",
is wisely provided against in the requirement of the Rule that all the parties interested
and all the beneficiaries under the will should be parties to the extrajudicial settlement.
The participation of all the interested parties excludes the probability of fraud or
collusion and, even in that eventuality, the aggrieved beneficiaries are not without
adequate remedy for the voidance of the partition under the Civil Code.
And this is in accordance with the weight of authority in this and other jurisdictions.
In Leao vs. Leao (25 Phil., 180), all the heirs and legatees have made an extrajudicial
partition of the estate left by the decedent and then filed the will in court which was
probated. Nine years of costly probate proceedings have followed after which the
extrajudicial partition was made known to court. such extrajudicial partition was objected
to by one party upon the ground that it was not in conformity with the provisions of the
will. But the trial Court held:
Naturally the partition made by the heirs voluntarily and spontaneously must
produce and has produced a legal status, which cannot be annulled merely for
the caprice of one person. and it cannot be said that, because the partition was
not made in accordance with the will, if such be the case, the latter has to be
annulled, for by voluntarily and spontaneously concurring therein they implicitly
renounced the effects of said will, of which they were aware. (See p. 183).

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On appeal, this Court affirmed the ruling with the following pronouncement:
In view of the positive finding of the judge of the lower court that there had been
a voluntary partition of the estate among the heirs and legatees and in the
absence of positive proof to the contrary, we must conclude that the lower court
had some evidence to support his conclusion. If the heirs and legatees had
voluntarily divided the estate among themselves, then their division is conclusive,
unless and until it is shown that there were debts existing against the estate
which had not been paid. No claim is made whatever by third parties nor
objections of any character are made by others than the heirs against said
partition. We see no reason why their heirs and legatees should not be bound by
their voluntary acts. (Page 183184).
This case furnishes precisely a valuable experience as to the practical wisdom
underlying the procedure established in section 1 of Rule 74. After the will was probated
and after nine years of costly administration proceedings, nothing absolutely nothing
was accomplished by the court except to make the belated pronouncement that the
extrajudicial partition made by the parties prior to the institution of the proceedings was
proper and binding upon them. Thus, the whole proceedings for nine years have proved
no more than a futile chronicle of wasted time and money for the parties and the court.
This disgraceful experience could not and did not pass unnoticed to the members of this
Court who drafted the new Rules of Court. The solemn admonition made by this Court
in a previous case (McMicking vs. Sy Conbieng, supra) when it said that "the State fails
wretchedly in its duly to its citizens if the machinery furnished by it for the division and
distribution of the property of a decedent is so cumbersome, unwieldy and expensive
that a considerable portion of the estate is absorbed in the process of such division",
rang with re-echoing insistence and was heeded to when the new Rules of Court was
drafted and promulgated. The fundamental policy pervading the whole system of
procedure adopted in said Rules is speed, economy an justice. Thus, features of
procedure were done away with when, without them, the same purpose may be
achieved. The result is brevity and simplicity of procedure with such guarantees as the
necessary to assure due process. And to remedy such evil as is disclosed in the Leao
case, a completely extrajudicial settlement is allowed even in testate succession with
the probate of the will dispensed with, when the heirs and legatees who are all of age or
represented by their judicial guardians, so agree, and there are not debts to be paid.

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Thus, the scope of section 596 of Act No. 190 was amplified and with it the ruling of this
Court in Riosa vs. Rocha (48 Phil., 737). The procedure is in consonance with the
almost unanimous weight of authority in other jurisdictions:
The complainant, to which a demurrer was sustained, shows that all the persons
interested in a decedent's estate, as widow, heirs, distributees, legatees, or
devisees, including the person appointed executrix by the will, and the husbands
of femes covert, (all being adults), by agreement divided among themselves all
the property of the estate according to the direction of the will, paid off all debts
against the estate, and delivered the note described to the plaintiff, as a part of
her share; and all this was done without probate of the will, or administration of
the estate. The effect of such a division was to invest the plaintiff with an
equitable title to the note. In the absence of the will, the decisions of this court,
heretofore made, would meet every argument in favor of an opposite conclusion.
(Anderson vs. Anderson, 37 Ala., 683; Marshall vs.Crow, 29 Ala., 278;
Vanderveer vs. Alston, 16 Ala., 494; Miller vs. Eatman, 11 feature of this case,
take it out of the principle of those decisions? We can perceive no sufficient
reason why it should. All the parties interested, or to be affected, may as well by
agreement divide property, where there is a will, without employing the agency of
courts, as in case of intestacy. Parties, competent to act, ought to do that, without
the agency of courts, which the courts would ultimately accomplish. To deny
them the privilege of so doing, would manifest a judicial abhorrence of harmony.
By the probate of the will, the claims of heirs and distributees, and of the widow,
would have been subordinated to the directions of the will. this has been
accomplished by the agreement. There being no debts, the executrix would have
had no other duty to perform, than to divide the property according to the will.
This, too, has been done by agreement of competent parties. All the ends and
objects of judicial proceedings have been accomplished, by agreement of the
parties; and that agreement must be effective. (Carter vs. Owens, 41 Ala., 215;
216-217).
The absence of sound objection on this ground to a contract having for its sole
purpose the disposition of property in a manner different from that proposed by a
a testator, even where the contract contemplates the rejection of the will when
offered for probate or its setting aside when admitted to probate, when it is

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entirely free from fraud, and is made by all the parties in interest, may be freely
conceded. As has often been substantially said, the public generally has not
interest in the matter of the probate of a will; and only those interested in the
estate under the will or otherwise are affected by such a contract. If they all agree
upon some course to be followed, and their contract is otherwise free from
contemplated fraud or violation of any law, no one else has any such interest as
warrants complaint. Such was the character of contract involved in
Spangenberg vs. Spangenberg (App.), 126 Pac., 379, especially relied on by
plaintiff here, where the contract purported to affect only such property of the
deceased as should in fact be received by the parties thereto. In Estate of
Garcelon, 104 Cal, 570; 38 Pac., 414; 32 L. R. A.,. 595; 43 Am. St., Rep., 134,
another case much relied on by plaintiff, a contract by an heir to refrain from
contesting a will was involved. It was said that the contract was one that
concerned the parties alone, and one that did not appear to be against public
policy. (Gugolz vs. Gehrkens, 130 Pac, Rep., 8, 10; 164 Cal., 596).
The question of public policy is introduced. The disposition of one's property after
death is controlled by statute. One of the next of kin has no vested interest in
such property. In cases of intestacy, a next of kin has such interest as the statute
declares. In case there is a will, he has an interest which gives him a standing
and right to contest the will. This right is his alone; in it the public has no interest;
he may refrain from exercising it, or he may dispose of it as he wishes, by
release or assignment or settlement, and the law of public policy is not offended.
(In re cook's Will, 217 N. Y. S., 176, 180-181).
Agreement. "It has been definitely decided by the courts of this state, and of
many other states, that the beneficiaries under a will have a right to agree among
themselves upon any distribution they see proper of the property bequeathed to
them.
. . . That holding is based upon the proposition that the property is theirs. No one
else is interested in its disposition, and they may, with propriety, make any
distribution of it that suits them, so long as they do not invade the rights of other
parties or infringe some rule of public policy'. (Fore vs. McFadden, 276 N. W.,
327; 329).

RULES COURT
The first assignment of error presented by appellants complains of the action of

the court in sustaining exceptions to averments asking the enforcement of the
agreement that the will should not be probated, and that the estate should be
divided among the parties as they would be entitled as heirs at law of the
deceased, the proponent of the will surrendering thereby his rights as principal
legatee. This assignment must be sustained. It cannot be seen that the
agreement is contrary to public policy. Parties may make any contract with
reference to their property rights that is not illegal, may adjust by compromise
their differences and disputes concerning the same and, as they bind
themselves, so shall they be bound. It is difficult to understand why this cannot
be effected by an agreement not to probate a will, or how it interferes with public
policy. The power to litigate and to establish a right by appeal to the courts is as
much the subject of contract as any other right in property. Such adjustments by
contract are favored by the law and the courts, and are not deemed to be an
unwarranted interference with the jurisdiction of the courts, or against public
policy. On the contrary, public policy favors them.
Appellants have cited a case in point, the case of Phillips v. Phillips, 8 Watts,
197, in which it is held competent for devisees and legatees to bind themselves
by a written or parol agreement to destroy a will before probate, and that a party
to the agreement would be estopped from claiming any interest under the will.
The court says: "It cannot admit of doubt that before probate the parties in
interest under a will would have the right to set aside a will, and such an act
would be favored, when the object was to avert a family controversy". The
agreement that the will should not be probated, and that the parties would take
the property as heirs at law of the deceased, destroyed the legal effect of the will;
and it could not thereafter have legal existence in conferring rights upon the
legatees. (Stringfellow vs. Early, 40 SW., 871, 873-874; 15 Tex. Civ. App., 597).
The contention that the complaint does not state a cause of action, because the
contract sued on is against public policy, and therefore void, is made here for the
first time. It is to the interest of the public generally that the right to make contract
should not be unduly restricted, and no agreement will be pronounced void, as
being against public policy, unless it clearly contravenes that which has been
declared by statutory enactment or by judicial decisions to be public policy, or

RULES COURT
unless the agreement manifestly tends in some way to injure the public. Whether
or not a contract in any given case is contrary to public policy is a question of law,
to be determined from the circumstances of each particular case. Smith vs. Du
Bose, 78 Ga., 413; 3 SE., 309-316; 6 Am. St. Rep., 260; Weber vs. Shay, 56
Ohio St., 116; 46 NE., 377; 37 L.R.A., 230; 60 Am. St. Rep., 743; Pierce vs.
Randolph, 12 Tex., 290; Print Numerical Registering Co. vs. Sampson, 19 L. R.
Eq. Cas., 465.
The contract in controversy is in effect but an agreement whereby the parties
thereto, "because of their love and affection for one another" and "being desirous
of avoiding litigation over the estate" of their father "in case of his death," agreed
to ignore his will in the event that he made one, and then share his estate equally
as if he had died intestate. In other words, the contract was but an agreement of
heirs apparent not to contest the will of an ancestor. There is nothing to be fond
in our code or statutory law prohibiting the making and enforcement of such a
contract, and it has been held in this state that a contract, made after the death of
the deceased, not to contest his will, is purely personal to the parties making it,
that it is not against public policy, and that, when fairly made, it will be enforced,
(Spangenberg vs. Spangenberg, 126 Pac. Rep., 379, 382; 19 Cal. App., 439).
Probate Dispensed With. Probate of a will may be dispensed with by an
agreement between the persons interested; or it may be dispensed with where
the testator, before his death, conveyed to the devisees all the property which he
had devised to them, or where the will makes no other disposition of the
testator's property than the law would have done had he died interstate, and the
rights sought to be established are admitted by all concerned. But where the
language of the will expressly invokes the jurisdiction of the probate court the fact
that no administration is necessary does not affect the power of the court to
probate the will. (68 C. J., pp. 877-878).
Agreement between Persons Interested: a. Requisites and Validity. (1) In General. It
has been held that, since the nature of a probate proceeding is one in rem, the parties
cannot submit a controversy arising therein to arbitration. The law, however, favors the
settlement, in good faith, of will contests, by a so-called "family settlement", although it
changes the mode of disposition of the estate; and, therefore, subject to the limitation

RULES COURT
that a contestant cannot compromise anything beyond his own personal interest in the
contest, persons, such as devisees, legatee, heirs, or next of kin, having interest in the
will or estate, sufficient to entitle them to opposed probate or contest the will, may enter
into an agreement which, in the absence of fraud or misrepresentation, is valid and
binding on all the parties thereto, whereby they waive probate of the will and bind
themselves to abide by its provisions, or whereby they agree that the will is not to be
probated or is to be superseded or destroyed; or whereby any controversy relative to
the probate or contest of the will is compromised or settled, and a contest is avoided,
whether or not there were, in fact, valid grounds for the contest. Such an agreement, in
order to be valid, must not exclude anyone entitled under the will, must be entered into
by all the persons affected thereby, and all the parties thereto must be competent to
make the agreement, and either they or their representative must fully execute it, and,
under some statutes, it must be properly approved by the court." ([Emphasis supplied]
68 C. J., pp. 909-910).
As to Probate. The operation and effect of the agreement may not to
supersede the provisions of the will, but to carry out its provisions without a
probate, and under such agreement the parties are precluded from denying the
probate, or insisting on the invalidating of the will for want of probate. So, also, a
person who agrees not to contest the will is precluded from opposing probate; or
the probate of a will may be dispensed with, and the persons interested in the
estate under the will given at least an equitable interest in the property, where
they, being under no disability, divide the estate, pursuant to an agreement
among themselves. Where the effect of the agreement of all interested parties is
to repudiate or renounce the will, it will not be probated, especially where the
agreement expressly so provides; but it has been held that, where the executor,
defending a torn will, agrees, for a consideration, not to probate it, the court
should not refuse probate without notifying other beneficiaries and requiring
testimony as to the tearing of the will by the testator. Probate, however, is not
prevented by an agreement executed by a part only of the beneficiaries, and the
parties to such agreement are not prevented thereby from taking under the will
which is probated by another interested person. ([Emphasis supplied] 68 C. J.,
pp. 914-915).

RULES COURT
Thus, where the parties, being in doubt as to the instrument being construed as a
will, and for the purpose of saving a family controversy and for the purpose of
dividing the estate, enter into a compromise and settlement agreement, under
the terms of which the entire estate is to be, and has in part been, divided, and
agree that the instrument shall not be offered for probate, it is sufficient to prevent
a probate. (Brownvs. Burk, 26 NW [2d ed.], 415.
Validity of Agreements of Dispense with Probate or to Modify or Set Aside Will.
Though in some jurisdictions an agreement to dispense with the probate of a will
has been declared to be against public policy and void, in a majority of the
decisions on the point it has been held that all the persons interested in
decedent's estate may by agreement divide the estate among themselves,
without probating such decedent's will or administering the estate, and the
validity of a contract having for its sole purpose the disposition of property in a
manner different from that proposed by a testator, even where the contract
contemplates the rejection of the will when offered for probate or its setting aside
when admitted to probate, when it is entirely free from fraud, and is made by all
the parties in interest, would seem to be freely concede. Thus it has been held
that all the parties in interest may agree to eliminate from a will a clause
providing for survivorship among them. But an agreement to resist the probate of
a will and procure it to be set aside so as to curt off the interest of one who is not
a party to such agreement is against public policy. Nor does the right of all the
parties in interest to set aside or disregard a will extend to the case of an active
trust, for a definite term, created by a testator as he deems proper for the
protection of his beneficiaries. A contract between the next of kin of a decedent,
that they will each have a certain portion of the estate, does not amount to an
agreement to divide the estate without probating the will. (28 R.C.L., pp. 357358).
The minority decision pointed out in the last quotation from the Ruling Case Law (Vol.
28, pp. 357-358) is from the Supreme Court of only one State that of Wisconsin, in re
Will of Dardis (135 Wis., 457; 115 NW., 332). All the other States held the contrary
doctrine that is now embodied in section 1 of Rule 74. Commenting upon the Wisconsin
rule, the Editor of the L.R.A. says the following:

RULES COURT
No case has been found other than Re Dardis wherein any court passed upon
the validity of a stipulation to secure the denial to probate of a will theretofore
offered for probate, on the ground that the testator was mentally incompetent to
make a will at the time of its execution. The decision of the court is based upon
the doctrine therein enunciated, that proceedings to probate a will are
proceedings in rem, which public interest demands should be pursued to a final
adjudication, regardless of the wishes of the interested parties. In this connection
and with reference to this broader question, it is of interest to note that courts of
other jurisdictions, although generally recognizing that proceedings to probate a
will are proceedings in rem, hold that the proceeding is inter partes to the extent
that all the parties in interest may control the probate proceedings, even to the
extent of doing away with the probate. (23 L.R.A. [N.S.], p.783).
For the sake of fixity in judicial policy, this Court in the exercise of its constitutional
powers, has solemnly given a form of a rule section 1, Rule 74 to what was merely
the consensus of judicial opinion. We cannot now repudiate the procedure outlined in
said provision unless we amend it by another rule.
The majority, however, expresses fear that abuses may easily be committed under the
Rules. Such fears have always been the bugbear set up against all task of procedural
reforms. To be sure, there has never been any provision of law that is not liable to
abuses. If by mere possibility of abuse we are to disregard clear provisions of a
procedural law, the result would not only the abrogation of all laws but also the abolition
of all courts. When a procedural law is calculated to remedy an evil under a specific
situation therein contemplated, it must be deemed good even if other situations may be
simulated or falsified and placed within its purview. And when that law is duly enacted, it
is no concern of the courts to pass upon its wisdom, their duty being to apply its
provisions in a manner which shall not defeat the intention underlying it. Laws are
promulgated to be obeyed and when they are abused there are the courts to check up
the abuse. Courts must deal with the specific circumstances of each case and construe
the provisions in such a manner as to make it impregnable if possible to further abuses.
This is constructive, not destructive, jurisprudence. This explains why laws are more
often worded so broadly as to lay merely general principles a skeleton the flesh to
be supplied with judicial decisions. Judicial statemanship requires that courts in deciding
judicial controversies should be careful not to advance opinions which are not

RULES COURT
necessary to a proper disposition of the case. Judicial experience has shown that such
advanced opinions may not infrequently place the court in an embarrassing position
when a proper case with the proper factual environment is properly presented with all its
angles before the court. Jurisprudence must be carefully progressive and not
impetuously aggressive. for instance, the majority, impressed by the awful
circumstances of the present case, has found it dangerous to hold that the probate of
the will may be dispensed with. While this conclusion is constructive under the peculiar
facts of the case, to generalize it is to make destructive. If a proper case is presented to
the court wherein all the heirs and legatees who are all of age have agreed to dispense
with the probate of a will and have actually made an extrajudicial partition, and if it
appears further that each of the recipients is in peaceful enjoyment of his share in the
estate, I am sure that the majority, with the practical wisdom they have shown in other
cases, would not dare disturb the peace enjoyed by such heirs and legatees and
compel them to go into court and litigate.
The majority, without the necessity of holding whether the probate of a will may or may
not be dispensed with under Rule 74, section 1, could have decided this case by stating
that said provision is not applicable, its requirements not being present. And I would be
wholly agreeable to this conclusion because the beneficiaries under the will do not
appear to have made an extrajudicial settlement of the estate left by the deceased
Victorino L. Guevara, nor the action brought by the natural daughter, Rosario Guevara,
is one for partition against all such beneficiaries founded either on an extrajudicial
settlement or on the provisions of the will as accepted by all parties to be valid and
binding. Upon the contrary, Rosario Guevara appears to be wishing to take advantage
of the will in so far as it is favorable to her, and repudiate it in so far as it is favorable to
others. Apparently, Rosario Guevara was in possession of the will and the other heirs
and legatees were not aware of its contents. The situation not being the one
contemplated by section 1 of Rule 74, plaintiff may not invoke its provisions.

RULES COURT
SECOND DIVISION
[G.R. No. 78778 : December 3, 1990.]
191 SCRA 814
LEONIDA CORONADO, FELIX BUENO, MELANIA RETIZOS, BERNARDINO
BUENASEDA and JOVITA MONTEFALCON, Petitioners, vs. THE COURT OF
APPEALS and JUANA BUENO ALBOVIAS, Respondents.
DECISION

RULES COURT
PARAS, J.:
This is a petition for review on certiorari seeking to reverse the decision* of the
respondent appellate court dated March 3, 1987 CA-G.R. CV No. 06911 entitled "Juana
(Bueno) Albovias et al., v. Leonida Coronado, et al.," affirming the decision of the lower
court, the decretal portion of which reads:: nad
"WHEREFORE, premises considered, judgment is hereby rendered:
1. Declaring Leonida Coronado to have no title or interest over the property in
question, hence, has no authority to dispose of the same in favor of her codefendants;
2. Declaring the sales executed by Coronado and subsequent transactions
involving the same property null and void ab initio;
3. Declaring the plaintiff to be the true and legal owner of the subject parcel of
land;
4. Ordering the defendants to vacate the subject premises and to surrender
possession thereof unto the plaintiff;
5. Ordering the defendants to jointly and severally pay unto the plaintiff the sum
of P2,000.00 as attorney's fees and P10,000.00 as moral and exemplary
damages.
Costs against the defendants." (Rollo, p. 17)
As found by the respondent appellate court, the property subject of this case is a parcel
of land situated in Nagcarlan, Laguna, containing 277 square meters, more particularly
described as follows:: nad
"A parcel of land situated in the Poblacion, Municipality of Nagcarlan, province of
Laguna. Bounded on the North, by property of Epifania Irlandez (formerly
Bonifacio Formentera); on the East, by that of Julio Lopez; on the South, by that
of Dalmacio Monterola (formerly Domingo Bueno); and on the West, by C. Lirio
Street. Containing an area of two hundred seventy seven (277) square meters,
more or less. Assessed at P3,320.00 under tax declaration No. 241." (Ibid., p. 15)
Said parcel of land is being contested by Juana Albovias, herein private respondent, on
the one hand, and Leonida-Coronado, Felix Bueno, Melania Retizos, Bernardino
Buenseda and Jovita Montefalcon, herein petitioners, on the other hand.
Juana Albovias (JUANA, for brevity) claims that the property in question is a portion of a
bigger lot referred to as Parcel G in the last will and testament executed in 1918 by

RULES COURT
Melecio Artiaga, grandfather of JUANA. This bigger lot was inherited under that will by
JUANA, her brother Domingo Bueno, and two other grandchildren, namely Bonifacio
and Herminigildo, both surnamed Formentera. Parcel G is described as follows:
"Isang lagay na lupa na ang bahagi ay walang tanim na halaman at ang bahagi naman
ay may tanim na saguing, tumatayo sa gawin Canloran ng Calle Avenida Rizal nitong
Nagcarlan, at humahangan sa Ibaba; sa ari cong Testador; sa Silangan, sa cay Enrique
Jovellano; sa Ilaya, sa namatay na Perfecto Nanagas, at sa Canloran, tubig na
pinamamagatang San Cido." (Ibid., p. 16)
JUANA further claims that sometime in 1925 or 1926, C. Lirio Street was created by the
Municipality of Nagcarla traversing said Parcel G and thus dividing it into two portions,
one on the west of C. Lirio St. and the other to the east of said street. Parcel G was
divided by the heirs in the following manner; the land was divided into two portions, the
northern portion of which was adjudicated in favor of the Formenteras and the southern
portion was given to JUANA and Doming Bueno. The southern portion in turn was
partitioned between JUANA and Domingo Bueno, the former getting the northern part
adjoining the lot of the Formenteras, and the latter the southern part which adjoins the
lot of Perfecto Nanagas (not owned by Dalmacio Monterola). The part allocated to
Domingo was later sold by him to Dalmacio Monterola, owner of the adjoining property
(Ibid.).: nad
Moreover, JUANA claims that her property was included together with the two parcels of
land owned by Dalmacio Monterola, which were sold by Monterola's successor-ininterest Leonida Coronado (now married to Felix Bueno) to Melania Retizos on April 18,
1970. Melania Retizos in turn sold the lots, including that one being claimed by JUANA,
to the spouse Bernardino Buenaseda and Jovita Montefalcon, now the present
possessors thereof, sometime in 1974 (Ibid., pp. 16-17).
On the other hand, Leonida Coronado and her co-petitioners (CORONADO, for brevity)
claim that the property in question was bequeathed to Leonida Coronado under a Will
executed by Dr. Dalmacio Monterola, who was allegedly in possession thereof even
before the outbreak of World War II (Ibid., p. 107).
Parenthetically, said will was probated under Sp. Proc. No. SC-283, entitled "Testate
Estate of the Deceased Monterola Leonida F. Coronado, petitioner (Ibid., p. 105).
JUANA, together with her husband, opposed the said probate. Despite their opposition,
however, the Will was allowed by the then Court of First Instance of Laguna, Sta. Cruz
Branch (Ibid., p. 106). On appeal, said decision was affirmed by the Court of Appeals in
CA-G.R. No. 40353, entitled "Leonida F. Coronado, petitioner-appellee v. Heirs of Dr.
Dalmacio Monterola, oppositors-appellants" (Ibid.). It is not apparent, however, from the
record whether or not said decision has already become final and executory.

RULES COURT
As a result of the conflicting claims over the property in question, JUANA filed an action
for quieting of title, declaratory relief and damages against CORONADO in the Regional
Trial Court of the Fourth Judicial Region, Branch XXVI, Sta. Cruz, Laguna, docketed as
Civil Case No. 7345 (Ibid., p. 4).
As adverted to above (first par.), the lower court rendered judgment in favor of JUANA.
Not satisfied with the decision of the lower court, CORONADO elevated the case to the
Court of Appeals, which affirmed the decision appealed from (Ibid., p. 20). Hence, this
petition.:-cralaw
CORONADO raised the following assigned errors:
I
THE RESPONDENT COURT OF APPEALS SERIOUSLY ERRED IN ARRIVING AT A
CONCLUSION WHICH IS CONTRARY TO THE FACTS AND CIRCUMSTANCES OF
THE CASE AND IN NOT APPLYING THE APPLICABLE PROVISION OF LAW AND
JURISPRUDENCE LAID DOWN BY THIS HONORABLE COURT. (Ibid., p. 108)
II
THERE IS NO EVIDENCE PRESENTED TO SHOW THAT THE LAND IN QUESTION
CLAIMED BY PRIVATE RESPONDENT IS THE SAME PROPERTY ADJUDICATED TO
JUANA BUENO UNDER THE WILL OF THE DECEASED MELECIO ARTIAGA;
NEITHER IS THERE EVIDENCE TO SHOW THAT SAID WILL HAD BEEN PROBATED.
(Ibid., p. 114)
III
PRIVATE RESPONDENT IS IN ESTOPPEL FROM QUESTIONING THE OWNERSHIP
OF THE PETITIONER OVER THE LAND IN QUESTION HAVING FAILED TO RAISE
THE SAME IN THE ESTATE PROCEEDING IN THE TRIAL COURT AND EVEN ON
APPEAL. (Ibid., p. 119)
IV
THE RESPONDENT COURT OF APPEALS MISAPPRECIATED THE EVIDENCE
SUBMITTED AND FACTS ADMITTED ON RECORD. IT THEREFORE COMMITTED
GRAVE AND SERIOUS ERROR. (Ibid., p. 121)
As required by this Court, CORONADO filed their memorandum on May 8, 1989 (Ibid.,
p. 105); while that of JUANA was filed on October 13, 1989 (Ibid., p. 139).
The petition is devoid of merit.

RULES COURT
Under the first assigned error, CORONADO assails the respondent appellate court's
finding that Dr. Dalmacio Monterola could not have acquired the subject land by
acquisitive prescription. Citing Art. 1116 of the New Civil Code in relation to Section 41
of the Code of Civil Procedure, CORONADO claims that JUANA had already foreclosed
whatever right or legal title she had over the property in question, the reason being that
Monterola's continued possession of the said property for over ten years since 1934
ripened into full and absolute ownership (Ibid., p. 112).
The argument has no factual basis.
Time and again, it has been ruled that the jurisdiction of the Supreme Court in cases
brought to it from the Court of Appeals is limited to reviewing and revising the errors of
law imputed to it, its findings of fact being conclusive. It is not the function of the
Supreme Court to analyze or weigh such evidence all over again, its jurisdiction being
limited to reviewing errors of law that might have been committed. Absent, therefore, a
showing that the findings complained of are totally devoid of support in the record, so
that they are so glaringly erroneous as to constitute serious abuse of discretion, such
findings must stand, for the Supreme Court is not expected or required to examine or
contrast the oral and documentary evidence submitted by the parties (Andres v.
Manufacturers Hanover & Trust Corporation, G.R. 82670, September 15, 1989). There
are no convincing reasons in the instant case to depart from this rule.
As found by the respondent appellate court, Monterola never claimed ownership over
the property in question. As a matter of fact, one of the deeds of donation executed by
Monterola in favor of Leonida Coronado acknowledged that the boundary owner on the
property conveyed to her is JUANA. This is precisely the reason why during the lifetime
of the late Dalmacio Monterola, JUANA had always been allowed to enter and reap the
benefits or produce of the said property. It was only after the death of said Monterola in
1970 that Leonida Coronado prohibited JUANA from entering it (Ibid., p. 18).:- nad
Even assuming arguendo that Monterola was indeed in continued possession of the
said property for over ten years since 1934, said possession is insufficient to constitute
the fundamental basis of the prescription. Possession, under the Civil Code, to
constitute the foundation of a prescriptive right, must be possession under claim of title
(en concepto de dueno), or to use the common law equivalent of the term, it must be
adverse. Acts of possessory character performed by one who holds by mere tolerance
of the owner are clearly not en concepto de dueno, and such possessory acts, no
matter how long so continued, do not start the running of the period of prescription
(Manila Electric Company v. Intermediate Appellate Court, G.R. 71393, June 28, 1989).
In this case, Monterola, as found by the respondent appellate court and the lower court,
never categorically claimed ownership over the property in question, much less his

RULES COURT
possession thereof en concepto de dueno. Accordingly, he could not have acquired said
property by acquisitive prescription.
Anent the contention of CORONADO that Leonida Coronado could tack her possession
to that of Monterola, so that claim of legal title or ownership over the subject property,
even against the petitioners, the Buenasesas, who are purchasers for value and in good
faith, is a foregone or settled issue, the respondent appellate court aptly answered the
same in this wise:
"It follows that Leonida Coronado could not have derived ownership of the land in
question from her predecessor-in-interest Dalmacio Monterola, whether by prescription
or by some other title. Neither can she claim acquisitive prescription in her own name. It
was only in 1970 after the death of Dalmacio Monterola that she asserted her claim of
ownership adverse to that of plaintiff-appellee. Having knowledge that she had no title
over the land in question, she must be deemed to have claimed it in bad faith. Under
Article 1137 of the Civil Code, ownership and other real rights over immovables
prescribe through uninterrupted adverse possession thereof for thirty years, without
need of title or good faith. And even granting that she had no notice or defect in her title
and was, therefore, in good faith, a period of ten years of possession is necessary for
her to acquire the land by ordinary prescription. (Article 1134, Civil Code). But she can
claim to have possessed the land only in 1968, the year the Monterola lots were
donated to her. The period, however, was interrupted in 1975, or 7 years after, when the
complaint below was filed." (Rollo, pp. 18-19)
Under the second assigned error, CORONADO claims that the will under which JUANA
inherited the property in question from her grandfather, Melecio Artiaga, was never
probated; hence, said transfer for ownership was ineffectual considering that under Rule
75, Sec. 1 of the Rules of Court (formerly Sec. 125 of Act No. 190, no will shall pass
either real or personal property unless it is proved and allowed in the proper court (Ibid.,
p. 115).
The contention is without merit.chanrobles virtual law library
While it is true that no will shall pass either real or personal property unless it is proved
and allowed in the proper court (Art. 838, Civil Code), the questioned will, however, may
be sustained on the basis of Article 1056 of the Civil Code of 1899, which was in force
at the time said document was executed by Melecio Artiaga in 1918. The said article
read as follows:
"Article 1056. If the testator should make a partition of his properties by an act inter
vivos, or by will, such partition shall stand in so far as it does not prejudice the legitime
of the forced heir." (Mang-Oy v. Court of Appeals, 144 SCRA 33 [1986])

RULES COURT
In this case, nowhere was it alleged nor shown that Leonida Coronado is entitled to
legitime from Melecio Artiaga. The truth of the matter is that the record is bereft of any
showing that Leonida Coronado and the late Melecio Artiaga were related to each other.
Under the third assigned error, CORONADO claims that JUANA is estopped from
questioning the ownership of Leonida Coronado over the land in question having failed
to raise the same in the estate proceedings in the trial court and even on appeal (Rollo,
p. 119).
The contention is likewise without merit.
Normally, the probate of a will does not look into its intrinsic validity. The authentication
of a will decides no other questions than such as touch upon the capacity of the testator
and the compliance with those requisites or solemnities which the law prescribes for the
validity of the wills. It does not determine nor even by implication prejudge the validity or
efficiency of the provisions of the will, thus may be impugned as being vicious or null,
notwithstanding its authentication. The question relating to these points remain entirely
unaffected, and may be raised even after the will has been authenticated (Maninang, et
al., v. Court of Appeals, 114 SCRA 473 [1982]). Consequently, JUANA is not estopped
from questioning the ownership of the property in question, notwithstanding her having
objected to the probate of the will executed by Monterola under which Leonida
Coronado is claiming title to the said property.:-cralaw
Under the fourth assigned error, it is alleged by CORONADO that JUANA's petition is
weak for want of factual and legal support; the weakness of JUANA's position lies in the
fact that she did not only fail to identify the subject land, but also failed to explain the
discrepancy in the boundary of the property she is claiming to be hers (Rollo, p. 125).
The contention is unavailing.
The fact that JUANA failed to identify the property in question and to explain the
discrepancy in the boundary of said property, assuming they are true, is immaterial, in
view of the findings of the lower court as to the identity of the property in question.
Moreover, the lower court found sufficient evidence to support the conclusion that the
property in question is the same property adjudicated to JUANA under the will of
Melecio Artiaga, and that CORONADO has no right whatsoever to said property (Ibid.,
p. 20). Such findings are conclusive upon this Court (Reynolds Philippine Corporation v.
Court of Appeals, 169 SCRA 220 [1989]).
PREMISES CONSIDERED, the decision appealed from is hereby AFFIRMED.
SO ORDERED.
Melencio-Herrera, Padilla, Sarmiento and Regalado, JJ., concur.

RULES COURT
SECOND DIVISION
[G.R. No. 129505. January 31, 2000]
OCTAVIO S. MALOLES II, petitioner, vs. PACITA DE LOS REYES
PHILLIPS, respondent.
[G.R. No. 133359. January 31, 2000]
OCTAVIO S. MALOLES II, petitioner, vs. COURT OF APPEALS, HON. FERNANDO
V. GOROSPE, JR., in his Official Capacity as Presiding Judge of RTC-Makati,
Branch 61, and PACITA PHILLIPS as the alleged executrix of the alleged will of the
late Dr. Arturo de Santos, respondents. Scmis
DECISION
MENDOZA, J.:
These are petitions for review on certiorari of the decisions of the Thirteenth and the
Special Eighth Divisions of the Court of Appeals which ruled that petitioner has no right
to intervene in the settlement of the estate of Dr. Arturo de Santos. The cases were
consolidated considering that they involve the same parties and some of the issues
raised are the same.

RULES COURT
The facts which gave rise to these two petitions are as follows:
On July 20, 1995, Dr. Arturo de Santos, Filipino and a resident of Makati City, filed a
petition for probate of his will[1] in the Regional Trial Court, Branch 61, Makati, docketed
as Sp. Proc. No. M-4223. In his petition, Dr. De Santos alleged that he had no
compulsory heirs; that he had named in his will as sole legatee and devisee the Arturo
de Santos Foundation, Inc.; that he disposed by his will his properties with an
approximate value of not less than P2,000,000.00; and that copies of said will were in
the custody of the named executrix, private respondent Pacita de los Reyes Phillips. A
copy of the will[2] was annexed to the petition for probate.
On February 16, 1996, Judge Fernando V. Gorospe, Jr. of RTC-Makati, Branch 61
issued an order granting the petition and allowing the will. The order reads:
On 03 August 1995, the Court issued an Order setting the hearing of the
petition on 12 September 1995, at 8:30 oclock in the morning, copies of
which were served to Arturo de Santos Foundation, Inc. and Ms. Pacita de
los Reyes Phillips (Officers Return, dated 04 September 1995 attached to
the records). When the case was called for hearing on the date set, no
oppositor appeared nor any written opposition was ever filed and on
motion of petitioner, he was allowed to adduce his evidence in support of
the petition.
Petitioner personally appeared before this Court and was placed on the
witness stand and was directly examined by the Court through "free
wheeling" questions and answers to give this Court a basis to determine
the state of mind of the petitioner when he executed the subject will. After
the examination, the Court is convinced that petitioner is of sound and
disposing mind and not acting on duress, menace and undue influence or
fraud, and that petitioner signed his Last Will and Testament on his own
free and voluntary will and that he was neither forced nor influenced by
any other person in signing it. Mis sc
Furthermore, it appears from the petition and the evidence adduced that
petitioner in his lifetime, executed his Last Will and Testament (Exhs. "A",

RULES COURT
"A-1", "A-2", "A-4", "A-5") at his residence situated at 9 Bauhinia corner

Intsia Streets, Forbes Park, Makati City; said Last Will and Testament was
signed in the presence of his three (3) witnesses, namely, to wit: Dr.
Elpidio Valencia (Exhs. "A-6", "A-7", "A-8", "A-16", "A-16-A"), Atty. Edward
J. Berenguer (Exhs. "A-3", "A-3-A", "A-9", "A-10", & "A-11"), and Atty.
Victoria C. delos Reyes (Exhs. "A-12", "A-13", "A-14", "A-17", & "A-18"),
who in turn, in the presence of the testator and in the presence of each
and all of the witnesses signed the said Last Will and Testament and duly
notarized before Notary Public Anna Melissa L. Rosario (Exh. "A-15"); on
the actual execution of the Last Will and Testament, pictures were taken
(Exhs. "B" to "B-3").
Petitioner has no compulsory heirs and Arturo de Santos Foundation, Inc.,
with address at No. 9 Bauhinia corner Intsia Streets, Forbes Park, Makati
City has been named as sole legatee and devisee of petitioners
properties, real and personal, approximately valued at not less than P2
million, Ms. Pacita de los Reyes Phillips was designated as executor and
to serve as such without a bond.
From the foregoing facts, the Court finds that the petitioner has
substantially established the material allegations contained in his petition.
The Last Will and Testament having been executed and attested as
required by law; that testator at the time of the execution of the will was of
sane mind and/or not mentally incapable to make a Will; nor was it
executed under duress or under the influence of fear or threats; that it was
in writing and executed in the language known and understood by the
testator duly subscribed thereof and attested and subscribed by three (3)
credible witnesses in the presence of the testator and of another; that the
testator and all the attesting witnesses signed the Last Will and Testament
freely and voluntarily and that the testator has intended that the instrument
should be his Will at the time of affixing his signature thereto.
WHEREFORE, as prayed for by the petitioner (testator himself) the
petition for the allowance of the Last Will and Testament of Arturo de
Santos is hereby APPROVED and ALLOWED.

RULES COURT
Shortly after the probate of his will, Dr. De Santos died on February 26, 1996.
On April 3, 1996, petitioner Octavio S. Maloles II filed a motion for intervention claiming
that, as the only child of Alicia de Santos (testators sister) and Octavio L. Maloles, Sr.,
he was the sole full-blooded nephew and nearest of kin of Dr. De Santos. He likewise
alleged that he was a creditor of the testator. Petitioner thus prayed for the
reconsideration of the order allowing the will and the issuance of letters of
administration in his name. Mis spped
On the other hand, private respondent Pacita de los Reyes Phillips, the designated
executrix of the will, filed a motion for the issuance of letters testamentary with Branch
61. Later, however, private respondent moved to withdraw her motion. This was
granted, while petitioner was required to file a memorandum of authorities in support of
his claim that said court (Branch 61) still had jurisdiction to allow his intervention. [3]
Petitioner filed his memorandum of authorities on May 13, 1996. On the other hand,
private respondent, who earlier withdrew her motion for the issuance of letters
testamentary in Branch 61, refiled a petition for the same purpose with the Regional
Trial Court, Makati, which was docketed as Sp. Proc. No. M-4343 and assigned to
Branch 65.
Upon private respondents motion, Judge Salvador Abad Santos of Branch 65 issued an
order, dated June 28, 1996, appointing her as special administrator of Dr. De Santoss
estate.
On July 29, 1996, petitioner sought to intervene in Sp. Proc. No. M-4343 and to set
aside the appointment of private respondent as special administrator. He reiterated that
he was the sole and full blooded nephew and nearest of kin of the testator; that he
came to know of the existence of Sp. Proc. No. M-4343 only by accident; that the
probate proceedings in Sp. Proc. No. M-4223 before Branch 61 of the same court was
still pending; that private respondent misdeclared the true worth of the testators estate;
that private respondent was not fit to be the special administrator of the estate; and that
petitioner should be given letters of administration for the estate of Dr. De Santos.

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On August 28, 1996, Judge Abad Santos ordered the transfer of Sp. Proc. No. M-4343
to Branch 61, on the ground that "[it] is related to the case before Judge Gorospe of
RTC Branch 61 . . ."
It appears, however, that in Sp. Proc. No. M-4223, Judge Gorospe had denied on
August 26, 1996 petitioners motion for intervention. Petitioner brought this matter to the
Court of Appeals which, in a decision[4] promulgated on February 13, 1998, upheld the
denial of petitioners motion for intervention.
Meanwhile, Judge Gorospe issued an order, dated September 4, 1996, returning the
records of Sp. Proc. No. M-4343 to Branch 65 on the ground that there was a pending
case involving the Estate of Decedent Arturo de Santos pending before said court. The
order reads: Spped
Acting on the ORDER dated 28 August 1996 of Branch 65, this Court,
transferring this case to this Branch 61 on the ground that this case is
related with a case before this Court, let this case be returned to Branch
65 with the information that there is no related case involving the ESTATE
OF DECEDENT ARTURO DE SANTOS pending before this Branch.
There is, however, a case filed by ARTURO DE SANTOS, as petitioner
under Rule 76 of the Rules of Court for the Allowance of his will during his
lifetime docketed as SP. PROC. NO. M-4223 which was already decided
on 16 February 1996 and has become final.
It is noted on records of Case No. M-4223 that after it became final, herein
Petitioner Pacita de los Reyes Phillips filed a MOTION FOR THE
ISSUANCE OF LETTERS TESTAMENTARY, which was subsequently
withdrawn after this Court, during the hearing, already ruled that the
motion could not be admitted as the subject matter involves a separate
case under Rule 78 of the Rules of Court, and movant withdrew her
motion and filed this case (No. 4343).
Octavio de Santos Maloles [II] filed a MOTION FOR INTERVENTION
before Case No. M-4223 and this motion was already DENIED in the

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order (Branch 61) of 26 August 1996 likewise for the same grounds that
the matter is for a separate case to be filed under Rule 78 of the Rules of
Court and cannot be included in this case filed under Rule 76 of the Rules
of Court.
It is further noted that it is a matter of policy that consolidation of cases
must be approved by the Presiding Judges of the affected Branches.
Initially, in his decision dated September 23, 1996, [5] Judge Abad Santos appeared firm
in his position that " . . . it would be improper for (Branch 65) to hear and resolve the
petition (Sp. Proc. No. M-4343)," considering that the probate proceedings were
commenced with Branch 61. He thus ordered the transfer of the records back to the
latter branch. However, he later recalled his decision and took cognizance of the case
"to expedite the proceedings." Thus, in his Order, dated October 21, 1996, he stated:
Considering the refusal of the Hon. Fernando V. Gorospe, Jr. of Branch 61
to continue hearing this case notwithstanding the fact that said branch
began the probate proceedings of the estate of the deceased and must
therefore continue to exercise its jurisdiction to the exclusion of all others,
until the entire estate of the testator had been partitioned and distributed
as per Order dated 23 September 1996, this branch (Regional Trial Court
Branch 65) shall take cognizance of the petition if only to expedite the
proceedings, and under the concept that the Regional Trial Court of
Makati City is but one court. Jo spped
Furnish a copy of this order to the Office of the Chief justice and the Office
of the Court Administrator, of the Supreme Court; the Hon. Fernando V.
Gorospe, Jr.; Pacita De Los Reyes Phillips, Petitioner; and Octavio de
Santos Maloles, Intervenor.
On November 4, 1996, Judge Abad Santos granted petitioners motion for intervention.
Private respondent moved for a reconsideration but her motion was denied by the trial
court. She then filed a petition for certiorari in the Court of Appeals which, on February
26, 1997, rendered a decision[6] setting aside the trial courts order on the ground that
petitioner had not shown any right or interest to intervene in Sp. Proc. No. M-4343.

RULES COURT
Hence, these petitions which raise the following issues:

1.
Whether or not the Honorable Regional Trial Court - Makati,
Branch 61 has lost jurisdiction to proceed with the probate proceedings
upon its issuance of an order allowing the will of Dr. Arturo de Santos
2.
Whether or not the Honorable (Regional Trial Court - Makati,
Branch 65) acquired jurisdiction over the petition for issuance of letters
testamentary filed by (private) respondent.
3.
Whether or not the petitioner, being a creditor of the late Dr.
Arturo de Santos, has a right to intervene and oppose the petition for
issuance of letters testamentary filed by the respondent.
4.
Whether or not (private) respondent is guilty of forum shopping in
filing her petition for issuance of letters testamentary with the Regional
Trial Court - Makati, Branch 65 knowing fully well that the probate
proceedings involving the same testate estate of the decedent is still
pending with the Regional Trial Court - Makati, Branch 61. Spped jo
First. Petitioner contends that the probate proceedings in Branch 61 of RTC-Makati did
not terminate upon the issuance of the order allowing the will of Dr. De Santos. Citing
the cases of Santiesteban v. Santiesteban[7] and Tagle v. Manalo,[8] he argues that the
proceedings must continue until the estate is fully distributed to the lawful heirs,
devisees, and legatees of the testator, pursuant to Rule 73, 1 of the Rules of Court.
Consequently, petitioner contends that Branch 65 could not lawfully act upon private
respondents petition for issuance of letters testamentary.
The contention has no merit.
In cases for the probate of wills, it is well-settled that the authority of the court is limited
to ascertaining the extrinsic validity of the will, i.e., whether the testator, being of sound
mind, freely executed the will in accordance with the formalities prescribed by law.[9]

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Ordinarily, probate proceedings are instituted only after the death of the testator, so
much so that, after approving and allowing the will, the court proceeds to issue letters
testamentary and settle the estate of the testator. The cases cited by petitioner are of
such nature. In fact, in most jurisdictions, courts cannot entertain a petition for probate
of the will of a living testator under the principle of ambulatory nature of wills. [10]
However, Art. 838 of the Civil Code authorizes the filing of a petition for probate of the
will filed by the testator himself. It provides:
Civil Code, Art. 838. No will shall pass either real or personal property
unless it is proved and allowed in accordance with the Rules of Court.
The testator himself may, during his lifetime, petition the court having
jurisdiction for the allowance of his will. In such case, the pertinent
provisions of the Rules of Court for the allowance of wills after the
testators death shall govern. Miso
The Supreme Court shall formulate such additional Rules of Court as may
be necessary for the allowance of wills on petition of the testator.
Subject to the right of appeal, the allowance of the will, either during the
lifetime of the testator or after his death, shall be conclusive as to its due
execution.
Rule 76, 1 likewise provides:
Sec. 1 Who may petition for the allowance of will. - Any executor, devisee,
or legatee named in a will, or any other person interested in the estate,
may, at any time after the death of the testator, petition the court having
jurisdiction to have the will allowed, whether the same be in his
possession or not, or is lost or destroyed.
The testator himself may, during his lifetime, petition in the court for the
allowance of his will.

RULES COURT
The rationale for allowing the probate of wills during the lifetime of testator has been
explained by the Code Commission thus:
Most of the cases that reach the courts involve either the testamentary
capacity of the testator or the formalities adopted in the execution of wills.
There are relatively few cases concerning the intrinsic validity of
testamentary dispositions. It is far easier for the courts to determine the
mental condition of a testator during his lifetime than after his death.
Fraud, intimidation and undue influence are minimized. Furthermore, if a
will does not comply with the requirements prescribed by law, the same
may be corrected at once. The probate during the testators life, therefore,
will lessen the number of contest upon wills. Once a will is probated during
the lifetime of the testator, the only questions that may remain for the
courts to decide after the testators death will refer to the intrinsic validity
of the testamentary dispositions. It is possible, of course, that even when
the testator himself asks for the allowance of the will, he may be acting
under duress or undue influence, but these are rare cases.
After a will has been probated during the lifetime of the testator, it does not
necessarily mean that he cannot alter or revoke the same before his
death. Should he make a new will, it would also be allowable on his
petition, and if he should die before he has had a chance to present such
petition, the ordinary probate proceeding after the testators death would
be in order.[11]
Thus, after the allowance of the will of Dr. De Santos on February 16, 1996, there was
nothing else for Branch 61 to do except to issue a certificate of allowance of the will
pursuant to Rule 73, 12 of the Rules of Court. There is, therefore, no basis for the
ruling of Judge Abad Santos of Branch 65 of RTC-Makati that -Nex old
Branch 61 of the Regional Trial Court of Makati having begun the probate
proceedings of the estate of the deceased, it continues and shall continue
to exercise said jurisdiction to the exclusion of all others. It should be
noted that probate proceedings do not cease upon the allowance or

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disallowance of a will but continues up to such time that the entire estate
of the testator had been partitioned and distributed.
The fact that the will was allowed during the lifetime of the testator meant
merely that the partition and distribution of the estate was to be
suspended until the latters death. In other words, the petitioner, instead of
filing a new petition for the issuance of letters testamentary, should have
simply filed a manifestation for the same purpose in the probate court. [12]
Petitioner, who defends the order of Branch 65 allowing him to intervene, cites Rule 73,
1 which states:
Where estate of deceased persons settled. - If the decedent is an
inhabitant of the Philippines at the time of his death, whether a citizen or
an alien, his will shall be proved, or letters of administration granted, and
his estate settled, in the Court of First Instance in the province in which he
resides at the time of his death, and if he is an inhabitant of a foreign
country, the Court of First Instance of any province in which he had estate.
The court first taking cognizance of the settlement of the estate of a
decedent, shall exercise jurisdiction to the exclusion of all other courts.
The jurisdiction assumed by a court, so far as it depends on the place of
residence of the decedent, or of the location of his estate, shall not be
contested in a suit or proceeding, except in an appeal from that court, in
the original case, or when the want of jurisdiction appears on the record.
The above rule, however, actually provides for the venue of actions for the settlement of
the estate of deceased persons. In Garcia Fule v. Court of Appeals, it was held:[13]
The aforequoted Section 1, Rule 73 (formerly Rule 75, Section 1),
specifically the clause "so far as it depends on the place of residence of
the decedent, or of the location of the state," is in reality a matter of venue,
as the caption of the Rule indicates: "Settlement of Estate of Deceased
Persons. Venue and Processes." It could not have been intended to define
the jurisdiction over the subject matter, because such legal provision is
contained in a law of procedure dealing merely with procedural matters.

RULES COURT
Procedure is one thing, jurisdiction over the subject matter is another. The
power or authority of the court over the subject matter "existed was fixed
before procedure in a given cause began." That power or authority is not
altered or changed by procedure, which simply directs the manner in
which the power or authority shall be fully and justly exercised. There are
cases though that if the power is not exercised conformably with the
provisions of the procedural law, purely, the court attempting to exercise it
loses the power to exercise it legally. However, this does not amount to a
loss of jurisdiction over the subject matter. Rather, it means that the court
may thereby lose jurisdiction over the person or that the judgment may
thereby be rendered defective for lack of something essential to sustain it.
The appearance of this provision in the procedural law at once raises a
strong presumption that it has nothing to do with the jurisdiction of the
court over the subject matter. In plain words, it is just a matter of method,
of convenience to the parties. Mani kx
Indeed, the jurisdiction over probate proceedings and settlement of estates with
approximate value of over P100,000.00 (outside Metro Manila) or P200,000.00 (in
Metro Manila) belongs to the regional trial courts under B.P. Blg. 129, as amended. The
different branches comprising each court in one judicial region do not possess
jurisdictions independent of and incompatible with each other.[14]
It is noteworthy that, although Rule 73, 1 applies insofar as the venue of the petition for
probate of the will of Dr. De Santos is concerned, it does not bar other branches of the
same court from taking cognizance of the settlement of the estate of the testator after
his death. As held in the leading case of Bacalso v. Ramolote:[15]
The various branches of the Court of First Instance of Cebu under the
Fourteenth Judicial District, are a coordinate and co-equal courts, and the
totality of which is only one Court of First Instance. The jurisdiction is
vested in the court, not in the judges. And when a case is filed in one
branch, jurisdiction over the case does not attach to the branch or judge
alone, to the exclusion of the other branches. Trial may be held or
proceedings continue by and before another branch or judge. It is for this
reason that Section 57 of the Judiciary Act expressly grants to the

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Secretary of Justice, the administrative right or power to apportion the

cases among the different branches, both for the convenience of the
parties and for the coordination of the work by the different branches of
the same court. The apportionment and distribution of cases does not
involve a grant or limitation of jurisdiction, the jurisdiction attaches and
continues to be vested in the Court of First Instance of the province, and
the trials may be held by any branch or judge of the court.
Necessarily, therefore, Branch 65 of the RTC of Makati City has jurisdiction over Sp.
Proc. No. M-4343.
Second. Petitioner claims the right to intervene in and oppose the petition for issuance
of letters testamentary filed by private respondent. He argues that, as the nearest next
of kin and creditor of the testator, his interest in the matter is material and direct. In
ruling that petitioner has no right to intervene in the proceedings before Branch 65 of
RTC-Makati City, the Court of Appeals held:
The private respondent herein is not an heir or legatee under the will of
the decedent Arturo de Santos. Neither is he a compulsory heir of the
latter. As the only and nearest collateral relative of the decedent, he can
inherit from the latter only in case of intestacy. Since the decedent has left
a will which has already been probated and disposes of all his properties
the private respondent can inherit only if the said will is annulled. His
interest in the decedents estate is, therefore, not direct or
immediate. Maniks
His claim to being a creditor of the estate is a belated one, having been
raised for the first time only in his reply to the opposition to his motion to
intervene, and, as far as the records show, not supported by evidence.
. . . . [T]he opposition must come from one with a direct interest in the
estate or the will, and the private respondent has none. Moreover, the
ground cited in the private respondents opposition, that the petitioner has
deliberately misdeclared the truth worth and value of the estate, is not
relevant to the question of her competency to act as executor. Section 2,

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Rule 76 of the Rules of Court requires only an allegation of the probable

value and character of the property of the estate. The true value can be
determined later on in the course of the settlement of the estate. [16]
Rule 79, 1 provides:
Opposition to issuance of letters testamentary. Simultaneous petition for
administration. - Any person interested in a will may state in writing the
grounds why letters testamentary should not issue to the persons named
therein as executors, or any of them, and the court, after hearing upon
notice, shall pass upon the sufficiency of such grounds. A petition may, at
the same time, be filed for letters of administration with the will annexed.
Under this provision, it has been held that an "interested person" is one who would be
benefited by the estate, such as an heir, or one who has a claim against the estate,
such as a creditor, and whose interest is material and direct, not merely incidental or
contingent.[17]
Even if petitioner is the nearest next of kin of Dr. De Santos, he cannot be considered
an "heir" of the testator. It is a fundamental rule of testamentary succession that one
who has no compulsory or forced heirs may dispose of his entire estate by will. Thus,
Art. 842 of the Civil Code provides:
One who has no compulsory heirs may dispose by will of all his estate or
any part of it in favor of any person having capacity to succeed. Manikan
One who has compulsory heirs may dispose of his estate provided he
does not contravene the provisions of this Code with regard to the
legitimate of said heirs.
Compulsory heirs are limited to the testators (1)
Legitimate children and descendants, with respect to their
legitimate parents and ascendants;

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(2)
In default of the foregoing, legitimate parents and ascendants,
with respect to their legitimate children and descendants;
(3)
The widow or widower;
(4)
fiction;
Acknowledged natural children, and natural children by legal
(5) Other illegitimate children referred to in Article 287 of the Civil Code. [18]
Petitioner, as nephew of the testator, is not a compulsory heir who may have been
preterited in the testators will.
Nor does he have any right to intervene in the settlement proceedings based on his
allegation that he is a creditor of the deceased. Since the testator instituted or named an
executor in his will, it is incumbent upon the Court to respect the desires of the testator.
As we stated in Ozaeta v. Pecson:[19]
The choice of his executor is a precious prerogative of a testator, a
necessary concomitant of his right to dispose of his property in the manner
he wishes. It is natural that the testator should desire to appoint one of his
confidence, one who can be trusted to carry out his wishes in the disposal
of his estate. The curtailment of this right may be considered a curtailment
of the right to dispose.
Only if the appointed executor is incompetent, refuses the trust, or fails to give bond
may the court appoint other persons to administer the estate. [20] None of these
circumstances is present in this case.
Third. Petitioner contends that private respondent is guilty of forum shopping when she
filed the petition for issuance of letters testamentary (Sp. Proc. No. M-4343) while the
probate proceedings (Sp. Proc. No. M-4223) were still pending. According to petitioner,
there is identity of parties, rights asserted, and reliefs prayed for in the two actions
which are founded on the same facts, and a judgment in either will result in res
judicata in the other.

RULES COURT
This contention has no merit. As stated earlier, the petition for probate was filed by Dr.
De Santos, the testator, solely for the purpose of authenticating his will. Upon the
allowance of his will, the proceedings were terminated. Oldmis o
On the other hand, the petition for issuance of letters testamentary was filed by private
respondent, as executor of the estate of Dr. De Santos, for the purpose of securing
authority from the Court to administer the estate and put into effect the will of the
testator. The estate settlement proceedings commenced by the filing of the petition
terminates upon the distribution and delivery of the legacies and devises to the persons
named in the will. Clearly, there is no identity between the two petitions, nor was the
latter filed during the pendency of the former. There was, consequently, no forum
shopping.
WHEREFORE, the petition is DENIED and the decisions of the Court of Appeals are
hereby AFFIRMED.
SO ORDERED.
Bellosillo, (Chairman), Quisumbing, Buena, and De Leon, Jr., JJ., concur.

RULES COURT
FIRST DIVISION
[G.R. No. 115925. August 15, 2003]
SPOUSES RICARDO PASCUAL and CONSOLACION SIOSON, petitioners,
vs. COURT OF APPEALS and REMEDIOS S. EUGENIO-GINO,respondents.
DECISION
CARPIO, J.:
The Case
This is a petition for review of the Decision [1] dated 31 January 1994 of the Court of
Appeals ordering the Register of Deeds of Metro Manila, District III, to place TCT No.
(232252) 1321 in the name of respondent Remedios S. Eugenio-Gino. The Decision
ordered the Register of Deeds to cancel the names of petitioners Ricardo Pascual and
Consolacion Sioson (petitioners) in TCT No. (232252) 1321. The Decision also
directed petitioners to pay respondent moral and exemplary damages and attorneys
fees.
The Facts
Petitioner Consolacion Sioson (CONSOLACION) and respondent Remedios S.
Eugenio-Gino (REMEDIOS) are the niece and granddaughter, respectively, of the late

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Canuto Sioson (CANUTO). CANUTO and 11 other individuals, including his sister
Catalina Sioson (CATALINA) and his brother Victoriano Sioson (VICTORIANO), were
co-owners of a parcel of land in Tanza, Navotas, Metro Manila. The property, known as
Lot 2 of Plan Psu 13245, had an area of 9,347 square meters and was covered by
Original Certificate of Title No. 4207 issued by the Register of Deeds of Rizal.
CATALINA, CANUTO, and VICTORIANO each owned an aliquot 10/70 share or 1,335
square meters of Lot 2. [2]
On 20 November 1951, CANUTO had Lot 2 surveyed and subdivided into eight lots
(Lot Nos. 2-A to 2-H) through Subdivision Plan Psd 34713 which the Director of Lands
approved on 30 May 1952. Lot No. 2-A, with an area of 670 square meters, and Lot No.
2-E, with an area of 2,000 square meters, were placed under CANUTOs name. Three
other individuals took the remaining lots. [3]
On 26 September 1956, CANUTO and CONSOLACION executed a Kasulatan ng
Bilihang Tuluyan[4] (KASULATAN). Under the KASULATAN, CANUTO sold his 10/70
share in Lot 2 in favor of CONSOLACION for P2,250.00. The KASULATAN, notarized
by Notary Public Jose T. de los Santos of Navotas, provides:
Na ako, CANUTO SIOSON, mamamayang Pilipino, may katampatang gulang, kasal
kay Raymunda San Diego, at naninirahan sa Tanza, Navotas, Rizal, sa bisa at
pamamagitan ng kasulatang ito ay nagpapatunay at nagpapatibay:
1.
Na ako ang lubos at tunay na may-ari ng 10/70 bahaging hindi

hati (10/70 porcion pro-indiviso) ng isang lagay na lupa (Lote No.
2, Plano Psu-13245), na nasa sa nayon ng Tanza, Municipio ng
Navotas, Provincia ng Rizal, at ang descripcion o pagkakakilanlan
ng nasabing lote ay nakasaad sa Certificado Original, de Titulo No.
4207 ng Oficina ng Registrador de Titulos ng Rizal, gaya ng
sumusunod:
xxxx
2.
Na dahil at alang-alang sa halagang Dalawang Libo Dalawang

Daan at Limampung Piso (P2,250.00), salaping Pilipino, na sa akin

RULES COURT
ay ibinayad ni CONSOLACION SIOSON, kasal kay Ricardo S.

Pascual, may sapat na gulang, mamamayang Pilipino, at
naninirahan sa Dampalit, Malabon, Rizal at ang pagkakatanggap
ng nasabing halaga ay aking inaamin at pinatutunayan, ay aking
ipinagbili, inilipat at isinalin, sa pamamagitan ng bilihang tuluyan at
walang pasubali a favor [sic] sa nasabing si CONSOLACION
SIOSON, sa kanyang tagapagmana at mapaglilipatan ang lahat ng
aking titulo, karapatan at kaparti na binubuo ng 10/70 bahaging
hindi hati (10/70 porcion pro-indiviso) ng loteng descrito or
tinutukoy sa itaas nito. (Emphasis supplied)
CONSOLACION immediately took possession of Lot Nos. 2-A and 2-E. She later
declared the land for taxation purposes and paid the corresponding real estate taxes. [5]
On 23 October 1968, the surviving children of CANUTO, namely, Felicidad and
Beatriz, executed a joint affidavit [6] (JOINT AFFIDAVIT) affirming the KASULATAN in
favor of CONSOLACION. They also attested that the lots their father had sold to
CONSOLACION were Lot Nos. 2-A and 2-E of Subdivision Plan Psd 34713. The JOINT
AFFIDAVIT reads:
KAMING sina FELICIDAD SIOSON at BEATRIZ SIOSON, pawang mga Pilipino,
kapuwa may sapat na gulang at naninirahan, ang una sa Tanza, Navotas at ang
ikalawa sa Concepcion, Malabon, lalawigan ng Rizal, sa ilalim ng isang ganap na
panunumpa alinsunod sa batas, ay malayang nagsasalaysay ng mga sumusunod:
Na kami ang mga buhay na anak na naiwan ni CANUTO SIOSON na nagmamay-ari
ng 10/70 bahaging hindi hati (10/70 porcion pro-indiviso) ng isang lagay na lupa (Lote
No. 2, plano Psu-13245), na nasa Nayon ng Tanza, Navotas, Rizal, at ang mga
palatandaan nito ay nasasaad sa Certificado Original de Titulo No. 4207 ng Tanggapan
ng Registrador de Titulos ng Rizal;
Na sa lubos naming kaalaman, ay ipinagbili ng aming Ama na si Canuto Sioson ang
kaniyang buong bahagi na 10/70 sa nasabing Lote No. 2, kay CONSOLACION
SIOSON, may-bahay ni Ricardo S. Pascual, na taga Dampalit, Malabon, Rizal, sa
halagang P2,250.00, salaping pilipino, noong ika 16 [sic] ng Septiembre, 1956, sa

RULES COURT
pamamagitan ng isang KASULATAN NG BILIHANG TULUYAN na pinagtibay sa harap

ng Notario Publico Jose T. de los Santos nang pechang nabanggit, sa Navotas, Rizal,
(Doc. No. 194, Page No. 84; Book No. IV; Series of 1956);
Na ang nasabing lupa na ipinagbili ng aming Ama kay Consolacion Sioson ni Pascual,
ay nakikilala ngayong mga Lote No. 2-A at Lote 2-E ng Plano de Subdivision Psd34713; na pinagtibay ng Assistant Director of Lands noong Mayo 30, 1952;
Na aming ngayong pinatitibayan ang pagka-pagbili ng bahagi ng aming Ama kay
Consolacion Sioson ni Pascual ng ngayoy nakikilalang Lote No. 2-A at Lote No. 2-E ng
Plano de Subdivision Psd-34713. (Emphasis supplied)
On 28 October 1968, CONSOLACION registered the KASULATAN and the JOINT
AFFIDAVIT with the Office of the Register of Deeds of Rizal (Register of
Deeds). Based on these documents, the Register of Deeds issued to CONSOLACION
Transfer Certificate of Title No. (232252) 1321 covering Lot Nos. 2-A and 2-E of
Subdivision Plan Psd 34713 with a total area of 2,670 square meters.
On 4 February 1988, REMEDIOS filed a complaint against CONSOLACION and her
spouse Ricardo Pascual in the Regional Trial Court of Malabon, Branch 165, for
Annulment or Cancellation of Transfer Certificate [of Title] and Damages. REMEDIOS
claimed that she is the owner of Lot Nos. 2-A and 2-E because CATALINA devised
these lots to her in CATALINAs last will and testament [7] (LAST WILL) dated 29 May
1964. REMEDIOS added that CONSOLACION obtained title to these lots through
fraudulent means since the area covered by TCT (232252) 1321 is twice the size of
CANUTOs share in Lot 2. REMEDIOS prayed for the cancellation of CONSOLACIONs
title, the issuance of another title in her name, and the payment to her of damages.
Petitioners sought to dismiss the complaint on the ground of
prescription. Petitioners claimed that the basis of the action is fraud, and REMEDIOS
should have filed the action within four years from the registration of CONSOLACIONs
title on 28 October 1968 and not some 19 years later on 4 February 1988. REMEDIOS
opposed the motion, claiming that she became aware of CONSOLACIONs adverse title
only in February 1987. CONSOLACION maintained that she had timely filed her
complaint within the four-year prescriptive on 4 February 1988.

RULES COURT
In its order of 28 April 1988, the trial court denied petitioners motion to
dismiss. The trial court held that the reckoning of the prescriptive period for filing
REMEDIOS complaint is evidentiary in nature and must await the presentation of the
parties evidence during the trial. During the pre-trial stage, REMEDIOS clarified that
she was claiming only CATALINAs 10/70 share in Lot 2, or 1,335 square meters, which
constitute of the area of Lot Nos. 2-A and 2-E. [8] The trial of the case then ensued.
The Ruling of the Trial Court
On 26 November 1990, the trial court rendered judgment dismissing the case and
ordering REMEDIOS to pay petitioners P10,000 as attorneys fees and the cost of
suit. The trial court held that the action filed by REMEDIOS is based on fraud, covered
by the four-year prescriptive period. The trial court also held that REMEDIOS knew of
petitioners adverse title on 19 November 1982 when REMEDIOS testified against
petitioners in an ejectment suit petitioners had filed against their tenants in Lot Nos. 2-A
and 2-E. Thus, the complaint of REMEDIOS had already prescribed when she filed it on
4 February 1988.
The trial court further ruled that REMEDIOS has no right of action against
petitioners because CATALINAs LAST WILL from which REMEDIOS claims to derive
her title has not been admitted to probate. Under Article 838 of the Civil Code, no will
passes real or personal property unless it is allowed in probate in accordance with the
Rules of Court. The dispositive portion of the trial courts decision provides:
WHEREFORE, judgment is hereby rendered in favor of the defendants and against
plaintiff, ordering:
1.
The dismissal of this case;

2.
3.
The plaintiff to pay the defendants the sum of Ten Thousand (P10,000.00)
Pesos as and for attorneys fees; and
The plaintiff to pay the costs of suit.[9]

REMEDIOS appealed to the Court of Appeals.

RULES COURT
The Ruling of the Court of Appeals

On 31 January 1994, the Court of Appeals rendered judgment reversing the
decision of the trial court. The appellate court held that what REMEDIOS filed was a
suit to enforce an implied trust allegedly created in her favor when CONSOLACION
fraudulently registered her title over Lot Nos. 2-A and 2-E. Consequently, the
prescriptive period for filing the complaint is ten years, not four. The Court of Appeals
counted this ten-year period from 19 November 1982. Thus, when REMEDIOS filed her
complaint on 4 February 1988, the ten-year prescriptive period had not yet expired.
The appellate court held that CATALINAs unprobated LAST WILL does not
preclude REMEDIOS from seeking reconveyance of Lot Nos. 2-A and 2-E as the LAST
WILL may subsequently be admitted to probate. The dispositive portion of the appellate
courts ruling provides:
WHEREFORE, the decision appealed from is REVERSED and SET ASIDE. The
Registry of Deeds of Rizal or Metro Manila, District III, is ordered to place Transfer
Certificate of Title No. (232252) 1321 under the name of Remedios S. Eugenio-Gino as
executor of the will of Catalina Sioson and cancel the names of the Spouses Ricardo
Pascual and Consolacion Sioson inscribed over said title as owners of the covered
lot. Defendants-appellees spouses Ricardo Pascual and Consolacion Sioson are
ordered to pay plaintiff-appellant Remedios S. Eugenio-Gino moral damages in the
amount ofP50,000.00, exemplary damages of P20,000[.00] and attorneys fees
of P20,000.00 and P500.00 per appearance.[10]
Petitioners sought reconsideration of the ruling. However, the Court of Appeals
denied their motion in its order dated 15 June 1994.
Hence, this petition.
The Issues
Petitioners allege the following assignment of errors:

RULES COURT
I.
THE COURT OF APPEALS ERRED IN HOLDING THAT

PRIVATE RESPONDENTS CAUSE OF ACTION IS NOT BARRED
BY PRESCRIPTION WHICH FINDING IS MANIFESTLY CONTRARY
TO LAW AND THE APPLICABLE DECISIONS OF THIS
HONORABLE COURT.
II.
THE COURT OF APPEALS ERRED IN NOT HOLDING THAT

PRIVATE RESPONDENT DOES NOT HAVE ANY TITLE AND HAS
UTTERLY FAILED TO PROVE ANY TITLE TO THE LOTS
INVOLVED IN THIS CASE, AND IN ORDERING THE
CANCELLATION OF THE CERTIFICATE OF TITLE OF
PETITIONERS.
III. THE COURT OF APPEALS ACTED WITH GRAVE ABUSE OF

DISCRETION AMOUNTING TO LACK OF JURISDICTION AND IN
GROSS VIOLATION OF THE RULES OF COURT IN ORDERING
THE ENTIRE PROPERTY COVERED BY TRANSFER CERTIFICATE
OF TITLE NO. (232252) 1321 TO BE PLACED IN THE NAME OF
PRIVATE RESPONDENT, BECAUSE THE CLAIM OF PRIVATE
RESPONDENT IS LIMITED ONLY TO ONE-HALF (1/2) PORTION OF
THE PROPERTY, AND THE OTHER HALF THEREOF
UNQUESTIONABLY BELONGS TO PETITIONERS.
IV. THE COURT OF APPEALS ERRED IN HOLDING THAT
PETITIONERS ACTED FRAUDULENTLY AND IN BAD FAITH IN
SECURING THEIR CERTIFICATE OF TITLE TO THE PROPERTY
INVOLVED IN THIS CASE, AND IN ORDERING PETITIONERS TO
PAY PRIVATE RESPONDENTS MORAL DAMAGES, EXEMPLARY
DAMAGES AND ATTORNEYS FEES.[11]
The pivotal questions are: (1) whether prescription bars the action filed by
REMEDIOS, and (2) whether REMEDIOS is a real party-in-interest.
The Ruling of the Court

RULES COURT
The petition has merit.

The Action is Barred by Prescription
The trial court held that the action filed by REMEDIOS is one based on
fraud. REMEDIOS action seeks to recover real property that petitioners allegedly
acquired through fraud. Consequently, the trial court held that the action prescribes in
four years counted from REMEDIOS actual discovery of petitioners adverse title. The
trial court concluded that REMEDIOS belatedly filed her suit on 4 February 1988
because she actually knew of petitioners adverse title since 19 November 1982.
On the other hand, the Court of Appeals held that what REMEDIOS filed was a suit
to enforce an implied trust. REMEDIOS had ten years counted from actual notice of
the breach of trust, that is, the assertion of adverse title, within which to bring her
action. The appellate court held that REMEDIOS seasonably filed her complaint on 4
February 1988 because she allegedly discovered petitioners adverse title only on 19
November 1982.
What REMEDIOS filed was an action to enforce an implied trust but the same is
already barred by prescription.
Prescriptive Period is 10 Years Counted
From Registration of Adverse Title
The four-year prescriptive period relied upon by the trial court applies only if the
fraud does not give rise to an implied trust, and the action is to annul a voidable contract
under Article 1390[12] of the Civil Code. In such a case, the four-year prescriptive period
under Article 1391[13] begins to run from the time of discovery of the mistake, violence,
intimidation, undue influence or fraud.
In the present case, REMEDIOS does not seek to annul the
KASULATAN. REMEDIOS does not assail the KASULATAN as a voidable contract. In
fact, REMEDIOS admits the validity of the sale of 1,335 square meters of land under the
KASULATAN. However, REMEDIOS alleges that the excess area of 1,335 meters is

RULES COURT
not part of the sale under the KASULATAN. REMEDIOS seeks the removal of this
excess area from TCT No. (232252) 1321 that was issued to CONSOLACION.
Consequently, REMEDIOS action is for Annulment or Cancellation of Transfer
Certificate [of Title] and Damages.[14]
REMEDIOS action is based on an implied trust under Article 1456 since she claims
that the inclusion of the additional 1,335 square meters in TCT No. (232252) 1321
was without basis. In effect, REMEDIOS asserts that CONSOLACION acquired the
additional 1,335 square meters through mistake or fraud and thus CONSOLACION
should be considered a trustee of an implied trust for the benefit of the rightful owner of
the property. Clearly, the applicable prescriptive period is ten years under Article 1144
and not four years under Articles 1389 and 1391.
It is now well-settled that the prescriptive period to recover property obtained by
fraud or mistake, giving rise to an implied trust under Article 1456 [15] of the Civil Code, is
ten years pursuant to Article 1144. [16] This ten-year prescriptive period begins to run
from the date the adverse party repudiates the implied trust, which repudiation takes
place when the adverse party registers the land. [17]
REMEDIOS filed her complaint on 4 February 1988 or more than 19 years after
CONSOLACION registered her title over Lot Nos. 2-A and 2-E on 28 October
1968. Unquestionably, REMEDIOS filed the complaint late thus warranting its
dismissal. As the Court recently declared in Spouses Alfredo v. Spouses Borras,
[18]
Following Caro,[19] we have consistently held that an action for reconveyance based on
an implied trust prescribes in ten years. We went further by specifying the reference
point of the ten-year prescriptive period as the date of the registration of the deed or the
issuance of the title.
The Court of Appeals Reckoning of
Prescriptive Period from Actual Notice
of Adverse Title Not Justified

RULES COURT
In holding that the action filed by REMEDIOS has not prescribed, the Court of
Appeals invoked this Courts ruling in Adille v. Court of Appeals.[20] In Adille, the Court
reckoned the ten-year prescriptive period for enforcing implied trusts not from
registration of the adverse title but from actual notice of the adverse title by the cestui
que trust. However, the Court, in justifying its deviation from the general rule, explained:
[W]hile actions to enforce a constructive trust prescribes (sic) in ten years, reckoned
from the date of the registration of the property, we x x x are not prepared to count the
period from such date in this case.We note the petitioners sub rosa efforts to get hold of
the property exclusively for himself beginning with his fraudulent misrepresentation in
his unilateral affidavit of extrajudicial settlement that he is the only heir and child of his
mother Feliza[] with the consequence that he was able to secure title in his name also.
(Emphasis supplied)
Such commission of specific fraudulent conduct is absent in the present
case. Other than asserting that petitioners are guilty of fraud because they secured
title to Lot Nos. 2-A and 2-E with an area twice bigger than what CANUTO allegedly
sold to CONSOLACION, REMEDIOS did not present any other proof of petitioners
fraudulent conduct akin to Adille.
CONSOLACION obtained title to Lot Nos. 2-A and 2-E through the KASULATAN
executed by CANUTO and the JOINT AFFIDAVIT executed by his surviving children,
one of whom, Felicidad, is the mother of REMEDIOS. The KASULATAN referred to the
sale of CANUTOs 10/70 share in Lot 2 without specifying the area of the lot sold. The
JOINT AFFIDAVIT referred to the Plano de Subdivision Psd-34713 without also
specifying the area of the lot sold. However, Subdivision Plan Psd 34713, as certified
by the Assistant Director of Lands on 30 May 1952, showed an area of 2,670 square
meters in the name of CANUTO. Based on these documents, the Register of Deeds
issued TCT No. (232252) 1321 to CONSOLACION covering an area of 2,670 square
meters.
REMEDIOS does not assail the KASULATAN or the JOINT AFFIDAVIT as fictitious
or forged. REMEDIOS even admits the authenticity of Subdivision Plan Psd 34713 as
certified by the Assistant Director of Lands.[21] Moreover, REMEDIOS has not contested

RULES COURT
petitioners claim that CANUTO doubled his share in Lot 2 by acquiring VICTORIANOs
share.[22]
Plainly, the increase in the area sold from 1,335 square meters to 2,670 square
meters is a glaring mistake. There is, however, no proof whatsoever that this increase
in area was the result of fraud. Allegations of fraud in actions to enforce implied trusts
must be proved by clear and convincing evidence. [23] Adille, which is anchored on
fraud,[24] cannot apply to the present case.
At any rate, even if we apply Adille to this case, prescription still bars REMEDIOS
complaint. As executrix of CATALINAs LAST WILL, REMEDIOS submitted to the then
Court of First Instance of Caloocan in Special Proceedings Case No. C-208 the
inventory of all the property comprising CATALINAs estate, which included Lot Nos. 2-A
and 2-E. In a motion dated 7 November 1977, CONSOLACION sought the exclusion of
these lots from the inventory, invoking her title over them. REMEDIOS was served a
copy of the motion on 8 November 1977 against which she filed an opposition.
Nevertheless, the trial court overruled REMEDIOS objection. In its order of 3 January
1978, the trial court granted CONSOLACIONs motion and ordered the exclusion of Lot
Nos. 2-A and 2-E from the estate of CATALINA. REMEDIOS did not appeal from this
ruling.
REMEDIOS thus had actual notice of petitioners adverse title on 8 November 1977.
Even if, for the sake of argument, the ten-year prescriptive period begins to run upon
actual notice of the adverse title, still REMEDIOS right to file this suit has prescribed.
REMEDIOS had until 11 November 1987 within which to file her complaint. When she
did so on 4 February 1988, the prescriptive period had already lapsed.
Respondent is Not a Real Party-in-Interest
Not only does prescription bar REMEDIOS complaint. REMEDIOS is also not a
real party-in-interest who can file the complaint, as the trial court correctly ruled.
The 1997 Rules of Civil Procedure require that every action must be prosecuted or
defended in the name of the real party-in-interest who is the party who stands to benefit

RULES COURT
or suffer from the judgment in the suit. [25] If one who is not a real party-in-interest brings
the action, the suit is dismissible for lack of cause of action. [26]
REMEDIOS anchored her claim over Lot Nos. 2-A and 2-E (or over its one-half
portion) on the devise of these lots to her under CATALINAs LAST WILL. However, the
trial court found that the probate court did not issue any order admitting the LAST WILL
to probate. REMEDIOS does not contest this finding. Indeed, during the trial,
REMEDIOS admitted that Special Proceedings Case No. C-208 is still pending. [27]
Article 838 of the Civil Code states that [N]o will shall pass either real or personal
property unless it is proved and allowed in accordance with the Rules of Court. This
Court has interpreted this provision to mean, until admitted to probate, [a will] has no
effect whatever and no right can be claimed thereunder. [28] REMEDIOS anchors her
right in filing this suit on her being a devisee of CATALINAs LAST WILL. However,
since the probate court has not admitted CATALINAs LAST WILL, REMEDIOS has not
acquired any right under the LAST WILL. REMEDIOS is thus without any cause of
action either to seek reconveyance of Lot Nos. 2-A and 2-E or to enforce an implied
trust over these lots.
The appellate court tried to go around this deficiency by ordering the reconveyance
of Lot Nos. 2-A and 2-E to REMEDIOS in her capacity as executrix of CATALINAs LAST
WILL. This is inappropriate because REMEDIOS sued petitioners not in such capacity
but as the alleged owner of the disputed lots. Thus, REMEDIOS alleged in her
complaint:
3.
The plaintiff is a niece and compulsory heir of the late CATALINA SIOSON who
died single and without any child of her own and who, during her lifetime, was the
owner of those two (2) parcels of land located at Tanza, Navotas, Rizal (now Metro
Manila), formerly covered by Original Certificate of Title No. 4207 of the Registry of
Deeds for the Province of Rizal, x x x.
4.
The plaintiff, aside from being the compulsory heir of the deceased CATALINA
SIOSON, has sole and exclusive claim of ownership over the above-mentioned two (2)
parcels of land by virtue of a will or Huling Habilin at Pagpapasiya executed by
Catalina Sioson on May 19, 1964 before Notary Public Efren Y. Angeles at Navotas,

RULES COURT
Rizal, in which document the deceased Catalina Sioson specifically and exclusively
bequeathed to the plaintiff the above-mentioned Lots 2-A and 2-E of Psd-34713
approved by the Bureau of Lands on May 30, 1952. Copy of the Huling Habilin at
Pagpapasiya consisting of four (4) pages is hereto attached and forms an integral part
hereof as Annex A;
5.
Sometime on or about February, 1987, plaintiff discovered that the abovementioned Lots 2-A and 2-E of subdivision plan Psd-34713 are now registered or titled
in the name of the defendants under Transfer Certificate of Title No. (232252) 1321 of
the Registry of Deeds of Rizal, now Metro-Manila District III. Copy of the title is hereto
attached and forms an integral part hereof as Annex B;
6.
Upon further inquiry and investigation, plaintiff discovered that the defendants
were able to obtain title in their name of the said parcels of land by virtue of a
Kasulatan ng Bilihang Tuluyan allegedly executed by Canuto Sioson on September
26, 1956 before Notary Public Jose [T.] de los Santos of Navotas, Metro-Manila. Copy
of the said document is hereto attached and forms an integral part hereof as Annex C;
7.
The plaintiff also discovered that although x x x the original sale did not specify
the parcels of land sold by Canuto Sioson, the defendants submitted an alleged Affidavit
executed by Felicidad Sioson and Beatriz Sioson identifying the lots sold by Canuto
Sioson to the defendants as Lots 2-A and 2-E of subdivision plan Psd-34713. Copy of
the Affidavit dated October 3, 1968 on the basis of which the present Transfer
Certificate of Title No. (232252) 1321 was issued to the defendants is hereto attached
and forms an integral part hereof as Annex D;
8.
The defendants are clearly guilty of fraud in presenting the aforementioned
Affidavit (Annex D) to the Register of Deeds as the basis of their claim to Lots 2-A and
2-E in view of the fact that the parcels sold to them by Canuto Sioson, assuming
there was such a sale, were different parcels of land, Lots 2-A and 2-E being the
properties of the late Catalina Sioson who bequeathed the same to the plaintiff.
xxxx

RULES COURT
12. Because of the defendants fraudulent actuations on this matter, plaintiff suffered
and continious [sic] to suffer moral damages arising from anxiety, shock and wounded
feelings. Defendants should also be assessed exemplary damages by way of a lesson
to deter them from again committing the fraudulent acts, or acts of similar nature, by
virtue of which they were able to obtain title to the parcels of land
involved in this case x x x.[29] (Emphasis supplied)
Indeed, all throughout the proceedings below and even in her Comment to this petition,
REMEDIOS continued to pursue her claim as the alleged owner of one-half of the
disputed lots.
Other Matters Raised in the Petition
The Court deems it unnecessary to pass upon the other errors petitioners assigned
concerning the award of damages and attorneys fees to REMEDIOS. Such award
assumes that REMEDIOS is a real party-in-interest and that she timely filed her
complaint. As earlier shown, this is not the case.
WHEREFORE, we GRANT the petition. The Decision of the Court of Appeals dated
31 January 1994 and its Resolution dated 15 June 1994 are SET ASIDE. The complaint
filed by respondent Remedios Eugenio-Gino, dated 2 February 1988 is DISMISSED.
SO ORDERED.
Davide, Jr., C.J., (Chairman), Vitug, Ynares-Santiago and Azcuna, JJ., concur.

RULES COURT
THIRD DIVISION
[G.R. No. 144915. February 23, 2004]
CAROLINA CAMAYA, FERDINAND CAMAYA, EDGARDO CAMAYA and ANSELMO
MANGULABNAN, petitioners, vs. BERNARDO PATULANDONG, respondent.
DECISION
CARPIO-MORALES, J.:
Before this Court is a petition for review on certiorari under Rule 45 of the 1997
Revised Rules of Court seeking the reversal of the Court of Appeals Decision dated
June 19, 2000 in CA-G.R. CV No. 53757, In re: Petition for the Probate of the Codicil
(Will) of Rufina Reyes; Bernardo Patulandong v. Anselmo Mangulabnan v. Carolina G.
Camaya, Ferdinand Camaya and Edgardo Camaya.
On November 17, 1972, Rufina Reyes (testatrix) executed a notarized will wherein
she devised, among others, Lot No. 288-A to her grandson Anselmo Mangulabnan
(Mangulabnan). The pertinent portion of her will reads:
IKALIMA. - Aking inihahayag at ginagawa na tagapagmana, sa aking kusang loob,
ang pinalaki kong APO na si ANSELMO P. MANGULABNAN, may sapat na gulang,
kasal kay Flora Umagap, at naninirahan sa San Lorenzo, Gapan, Nueva Ecija, at anak
ng aking anak na si SIMPLICIA, at sa aking APO na si ANSELMO ay aking
ipinagkakaloob at ipinamamana, sa aking pagkamatay, ang mga sumusunod kong
pagaari:
LOT NO. TITLE NO.
KINALALAGYAN
NABANGGIT SA
288-A
NT-47089
Sta. Cruz
(1) p. 2
3348-A
100629
Poblacion
(2) p. 2
3349-B
100630
Poblacion
(3) p. 2

RULES COURT
xxx[1] (Underscoring in the original; emphasis supplied)

The testatrixs son Bernardo Patulandong (Patulandong), respondent herein, was in
the will appointed as the executor.
During her lifetime, the testatrix herself filed a petition for the probate of her will
before the then Court of First Instance (CFI) of Nueva Ecija where it was docketed as
Sp. Pro. No. 128.
By Order[2] of January 11, 1973, the CFI admitted the will to probate.
On June 27, 1973, the testatrix executed a codicil modifying above-quoted
paragraph five of her will in this wise:
UNA. - Ang Lote No. 288-A na nakalagay sa barrio ng Sta. Cruz, Gapan, Nueva Ecija,
magsukat 36,384 metro cuadrados, at nagtataglay ng TCT No. NT-47089, na aking
ipinamana sa aking apong si ANSELMO P. MANGULABNAN, sangayon sa Pangkat
IKA-LIMA, pp. 5-6, ng aking HULING HABILIN (Testamento), ay ipinasiya kong
ipagkaloob at ipamana sa aking mga anak na sina BERNARDO, SIMPLICIA,
GUILLERMA at JUAN nagaapellidong PATULANDONG, at sa aking apong si
ANSELMO P. MANGULABNAN, sa magkakaparehong bahagi na tig-ikalimang
bahagi bawat isa sa kanila.
IKALAWA. - Na maliban sa pagbabagong ito, ang lahat ng mga tadhana ng aking
HULING HABILIN ay aking pinagtitibay na muli.
x x x[3] (Underscoring in the original; emphasis supplied) On May 14, 1988, the testatrix
died.
Mangulabnan later sought the delivery to him by executor Patulandong of the title to
Lot 288-A. Patulandong refused to heed the request, however, in view of the codicil
which modified the testators will.

RULES COURT
Mangulabnan thus filed an action for partition against Patulandong with the
Regional Trial Court of Gapan, Nueva Ecija, docketed as Civil Case No. 552 (the
partition case).
On June 8, 1989, the trial court rendered a decision in the partition case, [4] the
dispositive portion of which reads:
WHEREFORE, the court orders the partitioning of the properties and the defendant to
deliver the copy of the Transfer Certificate of Title No. NT-47089.
However, in view of the case cited by the plaintiff himself, the court holds that the
partition is without prejudice [to]... the probate of the codicil in accordance with
the Rules of Court,[P]alacios vs. Catimbang Palacios cited by the plaintiff:
After a will has been probated during the lifetime of the testator, it does not necessarily
mean that he cannot alter or revoke the same before his death. Should he make a new
will, it would also be allowable of his petition and if he should die before he had a
chance to present such petition, the ordinary probate proceedings after the testators
death would be in order.
The Court also orders that the right of the tenants of the agricultural land in question
should be protected meaning to say that the tenants should not be ejected. (Emphasis
and underscoring supplied)
On July 17, 1989 Patulandong filed before the Regional Trial Court of Nueva Ecija a
petition[5] for probate of the codicil of the testatrix, docketed as Sp. Proc. No. 218.
On December 28, 1989, the probate court issued an Order [6] setting the petition for
hearing and ordering the publication of said order.
On February 7, 1991, by virtue of the decision in the partition case, Mangulabnan
caused the cancellation of the title of the testatrix over Lot No. 288-A and TCT No. NT215750[7]was issued in his name.

RULES COURT
Mangulabnan later sold to herein petitioners Camayas Lot No. 288-A by a Deed of
Sale dated February 19, 1991. [8] TCT No. NT-215750 was thus cancelled and TCT No.
NT-216446[9] was issued in the name of the Camayas.
On January 16, 1996, the trial rendered a decision [10] in Sp. Proc. No. 218 admitting
the codicil to probate and disposing as follows:
WHEREFORE, in view of all the foregoing, judgment is hereby rendered in the following
manner:
1.
Declaring Transfer Certificate of Title No. NT-215750 issued by the

Register of Deeds of Nueva Ecija in the name of Anselmo Mangulabnan
dated February 7, 1991 and the Deed of Absolute Sale executed by him in
favor of the intervenors Carolina, Ferdinand and Edgardo, all surnamed
Camaya on February 19, 1991 and Transfer Certificate of Title No. NT216446 under date March 18, 1991 issued in the names of the abovenamed intervenors as NULL and VOID and of no force and effect; and,
2.
Ordering the Register of Deeds of Nueva Ecija to cancel Transfer of

Certificate of Title Nos. NT-215750 and NT-216446 and reissue the
corresponding Certificate of Titles to Bernardo R. Patulandong, Filipino,
married to Gorgonia Mariano residing at San Vicente, Gapan, Nueva
Ecija, Juan R. Patulandong, Filipino, widower and residing at San
Lorenzo, Gapan, Nueva Ecija; Guillerma R. Patulandong Linsangan of
legal age, Filipino, widow and residing at San Vicente, Gapan, Nueva
Ecija, Simplicia R. Patulandong Mangulabnan, of legal age, widow, and
residing at San Lorenzo, Gapan, Nueva Ecija and her grandson, Anselmo
Mangulabnan with full personal circumstances stated herein to the extent
of one fifth (1/5) each pursuant to the approved codicil (will) of Rufina
Reyes dated June 27, 1973.[11]
The Camayas who had been allowed to intervene in Sp. Proc. No. 218, and
Mangulabnan, filed a Motion for Reconsideration of the above-said decision but it was
denied by Order[12] of February 28,1996.

RULES COURT
On appeal to the Court of Appeals, the Camayas and Mangulabnan (hereinafter

referred to as petitioners) raised the following errors:
1. THERE WERE SERIOUS SUBSTANTIAL DEPARTURES FROM THE
FORMALITIES REQUIRED BY THE RULES, THE LAW, AND THE
AUTHORITY OF THE REGIONAL TRIAL COURT SETTING AS A PROBATE
COURT.
2. THE OPPOSITOR DID NOT ONLY ACQUIRE LOT NO. 288-A BY WILL BUT
HE ALSO ACQUIRED THE SAME BY PARTITION IN A CIVIL CASE WHERE
THE DECISION HAS ALREADY REACHED ITS FINALITY AND
THEREFORE CAN NO LONGER BE NEGATED BY A QUESTIONABLE
CODICIL.
3. THAT THE SUBJECT LOT 288-A IS NO LONGER WITHIN THE REACHED
(sic) OF THE PETITIONER CONSIDERING THAT THE OPPOSITOR
VENDOR HAD A CLEAN TITLE AND THAT THE INTERVENORS-VENDEED
HAD ACQUIRED THE SAME BY WAY OF SALE AS INNOCENT
PURCHASER IN GOOD FAITH AND FOR VALUE.[13]
By Decision[14] of June 19, 2000, the Court of Appeals affirmed that of the trial court.
Hence, the present petition for Review on Certiorari proffering the following issues:
1. Whether the probate court exceeded its jurisdiction when it declared null and
void and ordered the cancellation of the TCTs of petitioners and the deed of
sale; and
2. Whether the final judgment in Civil Case No. 552 bars the allowance of the
codicil.
As to the first issue, petitioners contend that the under the law, the probate court
has no power, authority, and jurisdiction to declare null and void the sale and titles of
petitioners;[15] and that the probate court can only resolve the following issues:

RULES COURT
1. Whether or not the instrument which is offered for probate is the last will and
testament of the decedent; in other words, the question is one of identity[;]
2. Whether or not the will has been executed in accordance with the formalities
prescribed by law; in other words, the question is one of due execution[; and]
3. Whether the testator had testamentary capacity at the time of the execution
of the will; in other words, the question is one of capacity.[16]
In Cuizon v. Ramolete, [17] this Court elucidated on the limited jurisdiction of a
probate court, to wit:
It is well-settled rule that a probate court or one in charge of proceedings whether
testate or intestate cannot adjudicate or determine title to properties claimed to
be a part of the estate and which are equally claimed to belong to outside
parties. All that said court could do as regards said properties is to determine
whether they should or should not be included in the inventoryor list of properties
to be administered by the administrator. If there is no dispute, well and good; but if
there is, then the parties, the administrator, and the opposing parties have to
resort to an ordinary action for a final determination of the conflicting claims of
title because the probate court cannot do so.
xxx
Having been apprised of the fact that the property in question was in the possession of
third parties and more important, covered by a transfer certificate of title issued in the
name of such third parties, the respondent court should have denied the motion of the
respondent administrator and excluded the property in question from the inventory of
the property of the estate. It had no authority to deprive such third persons of their
possession and ownership of the property. x x x (Emphasis and underscoring
supplied)
Following Cuizon, the probate court exceeded its jurisdiction when it further
declared the deed of sale and the titles of petitioners null and void, it having had the
effect of depriving them possession and ownership of the property.

RULES COURT
Moreover, following Section 48 of the Property Registry Decree which reads:

SECTION 48. Certificate not subject to collateral attack. - A certificate of title shall not
be subject to collateral attack. It cannot be altered, modified, or cancelled except in a
direct proceeding in accordance with law,
petitioners titles cannot, under probate proceedings, be declared null and void.
As to the second issue, petitioners argue that by allowing the codicil to probate, it in
effect amended the final judgment in the partition case which is not allowed by law;
[18]
and that petitioner Camayas are innocent purchasers for value and enjoy the legal
presumption that the transfer was lawful. [19]
Petitioners first argument does not persuade.
Though the judgment in the partition case had become final and executory as it was
not appealed, it specifically provided in its dispositive portion that the decision
was without prejudice [to] ... the probate of the codicil. The rights of the prevailing
parties in said case were thus subject to the outcome of the probate of the codicil.
The probate court being bereft of authority to rule upon the validity of petitioners
titles, there is no longer any necessity to dwell on the merits of petitioners Camayas
claim that they are innocent purchasers for value and enjoy the legal presumption that
the transfer was lawful.
WHEREFORE, the petition is GRANTED IN PART.
The Decision of the Court of Appeals dated June 19, 2000 in CA-G.R. CV No.
53757 affirming the January 16, 1996 Decision of Regional Trial Court, Branch 35, of
Gapan, Nueva Ecija, is hereby AFFIRMED with MODIFICATION.
The decision allowing the codicil is AFFIRMED, but the 1) declaration as null and
void of Transfer Certificate of Title No. NT-215750 issued on February 7, 1991 by the
Register of Deeds of Nueva Ecija in the name of Anselmo Mangulabnan, the February
19, 1991 Deed of Absolute Sale executed by him in favor of the intervenors - herein

RULES COURT
petitioners Carolina, Ferdinand and Edgardo Camaya, and Transfer Certificate of Title
No. NT-216446 issued on March 18, 1991 in favor of the petitioners Camayas, and 2)
the order for the Register of Deeds of Nueva Ecija to cancel Transfer of Certificate of
Title Nos. NT-215750 and NT-216446 and reissue the corresponding Certificate of Titles
to Bernardo R. Patulandong, Juan R. Patulandong, Guillerma R. Patulandong
Linsangan, Simplicia R. Patulandong Mangulabnan, and Anselmo Mangulabnan to the
extent of one-fifth (1/5) each pursuant to the approved codicil are SET ASIDE, without
prejudice to respondent and his co-heirs ventilation of their right in an appropriate
action.
SO ORDERED.
Vitug, (Chairman), Sandoval-Gutierrez, and Corona, JJ., concur.
FIRST DIVISION
HEIRS OF ROSENDO LASAM, G.R. No. 168156
Represented by Rogelio Lasam
and Atty. Edward P. Llonillo,

RULES COURT
Petitioners,
- versus VICENTA UMENGAN,

Respondent.
Present:
PANGANIBAN, C. J., Chairperson,
YNARES-SANTIAGO,
AUSTRIA-MARTINEZ,
CALLEJO, SR., and
CHICO-NAZARIO, JJ.
Promulgated:
December 6, 2006
x-----------------------------------------------------------------------------------------x
DECISION
CALLEJO, SR., J.:
Before the Court is the petition for review on certiorari filed by the Heirs of
Rosendo Lasam, represented by Rogelio M. Lasam and Atty. Edward P. Llonillo,
seeking the reversal of the Decision [1] dated February 16, 2005 of the Court of Appeals
(CA) in CA-G.R. SP No. 80032. The assailed decision reversed and set aside the
decision of the Regional Trial Court (RTC) of Tuguegarao City, Cagayan and dismissed,
for lack of merit, the complaint for unlawful detainer file by the said heirs against
respondent Vicenta Umengan.
The RTC decision affirmed that of the Municipal Trial Court in Cities (MTCC) of
the same city, Branch III, which had rendered judgment in favor of the heirs of Rosendo
Lasam and directed the ejectment of respondent Vicenta Umengan from the lot subject
of litigation.
The present petition likewise seeks the reversal of the CA Resolution dated May
17, 2005 denying the motion for reconsideration filed by the heirs of Rosendo Lasam.
As culled from the records, the backdrop of the present case is as follows

RULES COURT
The lot subject of the unlawful detainer case is situated in Tuguegarao City,
Cagayan. It is the eastern half portion of Lot No. 5427 and Lot No. 990. The first
lot, Lot No. 5427 containing an area of 1,037 square meters, is covered by Original
Certificate of Title (OCT) No. 196. The second lot, Lot No. 990 containing an area of
118 sq m, is covered by OCT No. 1032. These lots are registered in the names of the
original owners, spouses Pedro Cuntapay and Leona Bunagan.
In an instrument denominated as Deed of Confirmation and acknowledged before
a notary public on June 14, 1979, the heirs of the said spouses conveyed the ownership
of Lots Nos. 990 and 5427 in favor of their two children, Irene Cuntapay and Isabel
Cuntapay. In another instrument entitled Partition Agreement and acknowledged before
a notary public on December 28, 1979, it was agreed that the eastern half portion
(subject lot) of Lots Nos. 990 and 5427 shall belong to the heirs of Isabel Cuntapay. On
the other hand, the remaining portion thereof (the west portion) shall belong to the heirs
of Irene Cuntapay. The subject lot (eastern half portion) has an area of 554 sq m.
Isabel Cuntapay had four children by her first husband, Domingo Turingan,
namely: Abdon, Sado (deceased), Rufo and Maria. When Domingo Turingan passed
away, Isabel Cuntapay remarried Mariano Lasam. She had two other children by him,
namely: Trinidad and Rosendo.
Sometime in January 2001, the heirs of Rosendo Lasam (son of Isabel Cuntapay
by her second husband) filed with the MTCC a complaint for unlawful detainer against
Vicenta Umengan, who was then occupying the subject lot. Vicenta Umengan is the
daughter of Abdon Turingan (son of Isabel Cuntapay by her first husband).
In their complaint, the heirs of Rosendo Lasam alleged that they are the owners
of the subject lot, having inherited it from their father. Rosendo Lasam was allegedly
the sole heir of the deceased Pedro Cuntapay through Isabel Cuntapay. During his
lifetime, Rosendo Lasam allegedly temporarily allowed Vicenta Umengan to occupy the
subject lot sometime in 1955. The latter and her husband allegedly promised that they
would vacate the subject lot upon demand. However, despite written notice and
demand by the heirs of Rosendo Lasam, Vicenta Umengan allegedly unlawfully refused

RULES COURT
to vacate the subject lot and continued to possess the same. Accordingly, the heirs of
Rosendo Lasam were constrained to institute the action for ejectment.
In her Answer with Counterclaim, Vicenta Umengan specifically denied the
material allegations in the complaint. She countered that when Isabel Cuntapay passed
away, the subject lot was inherited by her six children by her first and second marriages
through intestate succession. Each of the six children allegedly had a pro indiviso share
of 1/6 of the subject lot.
It was further alleged by Vicenta Umengan that her father, Abdon Turingan,
purchased the respective 1/6 shares in the subject lot of his siblings Maria and
Sado. These conveyances were allegedly evidenced by the Deed of Sale dated March
3, 1975, appearing as Doc. No. 88, Page No. 36, Book No. XIV, series of 1975 of the
notarial book of Atty. Pedro Lagui.
Prior thereto, Rufo already sold his 1/6 share in the subject lot to Vicenta
Umengan and her husband as evidenced by the Deed of Sale dated June 14, 1961,
appearing as Doc. No. 539, Page No. 41, Book No. V, series of 1961 of the notarial
book of Atty. Pedro Lagui. Also on June 14, 1961, Abdon donated his 1/6 share in the
subject lot to her daughter Vicenta Umengan as evidenced by the Deed of Donation
appearing as Doc. No. 538, Page No. 41, Book No. V, series of 1961 of the notarial
book of the same notary public.
According to Vicenta Umengan, the children of Isabel Cuntapay by her second
husband (Rosendo and Trinidad Lasam) own only 2/6 portion of the subject lot. She
thus prayed that the complaint for ejectment be dismissed and that the heirs of Rosendo
Lasam be ordered to pay her damages.
The MTCC rendered judgment in favor of the heirs of Rosendo Lasam and
directed the ejectment of Vicenta Umengan. In so ruling, the MTCC gave credence to
the newly discovered last will and testament (entitled Testamento Abierto) purportedly
executed by Isabel Cuntapay where she bequeathed the subject lot to her son,
Rosendo Lasam, thus:
x x x my share 1/5th (one-fifth) of the Cuntapay heirs, bordered on the
North by Sr. Elia Canapi; to the South, by Calle Aguinaldo; to the East, by
Calle P. Burgos and the West, by the late Don Luis Alonso; on the property

RULES COURT
which is my share stands a house of light materials where I presently

reside; this 1/5th (one-fifth) share of my inheritance from the Cuntapays I
leave to my son Rosendo Lasam and also the aforementioned house of
light material x x x[2]
The MTCC reasoned that the heirs of Rosendo Lasam anchored their claim over
the subject lot on the last will and testament of Isabel Cuntapay while Vicenta Umengan
hinged hers on intestate succession and legal conveyances. Citing jurisprudence[3] and
Article 1080[4] of the Civil Code, the MTCC opined that testacy was favored and that
intestacy should be avoided and the wishes of the testator should prevail. It observed
that the last will and testament of Isabel Cuntapay was not yet probated as required by
law; nonetheless, the institution of a probate proceeding was not barred by prescription.
With the finding that the subject lot was already bequeathed by Isabel Cuntapay
to Rosendo Lasam, the MTCC held that the siblings Abdon, Sado, Rufo and Maria
Turingan no longer had any share therein. Consequently, they could not convey to
Vicenta Umengan what they did not own. On the issue then of who was entitled to
possession of the subject lot, the MTCC ruled in favor of the heirs of Rosendo Lasam as
it found that Vicenta Umengans possession thereof was by mere tolerance. The
dispositive portion of the MTCC decision reads:
WHEREFORE, in the light of the foregoing considerations, this Court
Resolve[d] to order the EJECTMENT of VICENTA T. UMENGAN and in
her place INSTITUTE THE HEIRS OF ROSENDO LASAM.
It is further ordered the defendant shall pay the Heirs of Rosendo
Lasam the sum of P500.00 pesos representing the monthly rental of the
land from August 2000 to the time this case shall have been terminated.
Ordering the defendant to pay the plaintiffs the amount of P20,000.00
attorneys fees plus cost of this litigation.
So Ordered.[5]
On appeal, the RTC affirmed in toto the decision of the MTCC. The RTC echoed
the reasoning of the MTCC that the testamentary disposition of the property of Isabel
Cuntapay should be respected, and that the heirs of Rosendo Lasam have a better right
to possess the subject lot.

RULES COURT
Undaunted, Vicenta Umengan filed an appeal with the CA. She argued that the
MTCC had no jurisdiction over the case as it involved the recovery of ownership of the
subject lot, not merely recovery of possession or unlawful detainer. She also assailed
the RTCs and the MTCCs holding that the purported Testamento Abierto of Isabel
Cuntapay prevails over Vicenta Umengans muniments of title and, consequently, the
heirs of Rosendo Lasam have a better right to the subject lot than Vicenta Umengan.
In the assailed Decision dated February 16, 2005, the CA reversed and set aside
the decision of the RTC. The appellate court preliminarily upheld the jurisdiction of the
MTCC over the subject matter as it found that the allegations in the complaint made out
a case for unlawful detainer. The heirs of Rosendo Lasam in their complaint, according
to the CA, only sought for Vicenta Umengan to vacate and surrender possession of the
subject lot. The CA also rejected the contention of the heirs of Rosendo Lasam that the
issue of ownership of the subject lot had already been settled in another case, Civil
Case No. 4917, before RTC (Branch 3) of Tuguegarao City. The CA stated that the trial
courts order dismissing the said case was not a judgment on the merits as to
constitute res judicata.
However, the CA declared that the RTC, as well as the MTCC, erred in ruling that,
by virtue of the purported last will and testament of Isabel Cuntapay, the heirs of
Rosendo Lasam have a better right to the subject lot over Vicenta Umengan. The CA
explained that the said last will and testament did not comply with the formal
requirements of the law on wills.[6]
Specifically, the CA found that the pages of the purported last will and testament
were not numbered in accordance with the law. Neither did it contain the requisite
attestation clause. Isabel Cuntapay as testator and the witnesses to the will did not affix
their respective signatures on the second page thereof. The said instrument was
likewise not acknowledged before a notary public by the testator and the
witnesses. The CA even raised doubts as to its authenticity, noting that while Isabel
Cuntapay died in 1947 and the heirs of Rosendo Lasam claimed that they discovered
the same only in 1997, a date May 19, 1956 appears on the last page of the
purported will. The CA opined that if this was the date of execution, then the will was
obviously spurious. On the other hand, if this was the date of its discovery, then the CA
expressed bafflement as to why the heirs of Rosendo Lasam, through their mother,

RULES COURT
declared in the Partition Agreement dated December 28, 1979 that Isabel Cuntapay
died intestate.
It was observed by the CA that as against these infirmities in the claim of the heirs
of Rosendo Lasam, Vicenta Umengan presented a Deed of Sale and a Deed of
Donation to justify her possession of the subject lot. The CA noted that she has also
possessed the subject property since 1955. Such prior possession, the CA held, gave
Vicente Umengan the right to remain in the subject lot until a person with a better right
lawfully ejects her. The heirs of Rosendo Lasam do not have such a better right. The
CA stressed that the ruling on the issue of physical possession does not affect the title
to the subject lot nor constitute a binding and conclusive adjudication on the merits on
the issue of ownership. The parties are not precluded from filing the appropriate action
to directly contest the ownership of or the title to the subject lot.
The decretal portion of the assailed decision of the CA reads:
WHEREFORE, premises considered, the appeal is GRANTED. The
August 29, 2003 decision of the RTC, Branch 1, Tuguegarao City,
Cagayan in Civil Case No. 5924 is hereby REVERSED and SET
ASIDE. Private respondents complaint for unlawful detainer against
petitioner is dismissed for lack of merit.
SO ORDERED.[7]
The heirs of Rosendo Lasam sought the reconsideration thereof but their motion
was denied by the CA in its Resolution dated May 17, 2005.
The heirs of Rosendo Lasam (petitioners) now come to the Court alleging that the
CA committed reversible error in setting aside the decision of the RTC, which had
affirmed that of the MTCC, and dismissing their complaint for unlawful detainer against
respondent Vicenta Umengan.
Petitioners argue that the CA erred when it held, on one hand, that the MTCC had
jurisdiction over the subject matter of the complaint as the allegations therein make out
a case for unlawful detainer but, on the other hand, proceeded to discuss the validity of
the last will and testament of Isabel Cuntapay.

RULES COURT
Petitioners insist that respondent is holding the subject lot by mere tolerance and
that they, as the heirs of Rosendo Lasam who was the rightful owner of the subject lot,
have a better right thereto. It was allegedly error for the CA to declare the last will and
testament of Isabel Cuntapay as null and void for its non-compliance with the formal
requisites of the law on wills. The said matter cannot be resolved in an unlawful
detainer case, which only involves the issue of material or physical possession of the
disputed property. In any case, they maintain that the said will complied with the formal
requirements of the law.
It was allegedly also erroneous for the CA to consider in respondents favor the
deed of sale and deed of donation covering portions of the subject lot, when these
documents had already been passed upon by the RTC (Branch 3) of Tuguegarao City in
Civil Case No. 4917 when it dismissed the respondents complaint for partition of the
subject lot. The said order allegedly constituted res judicata and may no longer be
reviewed by the CA.
Petitioners emphasize that in an unlawful detainer case, the only issue to be
resolved is who among the parties is entitled to the physical or material possession of
the property in dispute. On this point, the MTCC held (and the same was affirmed by
the RTC) that petitioners have a better right since the merely tolerated possession of
the respondent had already expired upon the petitioners formal demand on her to
vacate. In support of this claim, they point to the affidavit of Heliodoro Turingan, full
brother of the respondent, attesting that the latters possession of the subject lot was by
mere tolerance of Rosendo Lasam who inherited the same from Isabel
Cuntapay.
According to petitioners, respondents predecessors-in-interest from whom she
derived her claim over the subject lot by donation and sale could not have conveyed
portions thereof to her, as she had claimed, because until the present, it is still covered
by OCT Nos. 196 and 1032 under the names of Pedro and Leona Cuntapay. Their
respective estates have not been settled up to now.
It is also the contention of petitioners that the CA should have dismissed outright
respondents petition filed therewith for failure to comply with the technical requirements

RULES COURT
of the Rules of Court. Specifically, the petition was not allegedly properly verified,
lacked statement of material dates and written explanation on why personal service was
not made.
This last contention of petitioners deserves scant consideration. The technical
requirements for filing an appeal are not sacrosanct. It has been held that while the
requirements for perfecting an appeal must be strictly followed as they are considered
indispensable interdictions against needless delays and for orderly discharge of judicial
business, the law does admit of exceptions when warranted by circumstances. [8] In the
present case, the CA cannot be faulted in choosing to overlook the technical defects
of respondents appeal. After all, technicality should not be allowed to stand in the way
of equitably and completely resolving the rights and obligations of the parties. [9]
The Court shall now resolve the substantive issues raised by petitioners.
It is well settled that in ejectment suits, the only issue for resolution is the physical
or material possession of the property involved, independent of any claim of ownership
by any of the party litigants. However, the issue of ownership may be provisionally ruled
upon for the sole purpose of determining who is entitled to possession de facto.[10]
In the present case, petitioners base their claim of right to possession on the
theory that their father, Rosendo Lasam, was the sole owner of the subject lot by virtue
of the newly discovered last will and testament of Isabel Cuntapay bequeathing the
same to him. Respondent is allegedly holding the subject lot by mere tolerance of
Rosendo Lasam and, upon the petitioners formal demand on her to vacate the same,
respondents right to possess it has expired.

RULES COURT
On the other hand, respondent hinges her claim of possession on the legal
conveyances made to her by the children of Isabel Cuntapay by her first husband,
namely, Maria, Rufo, Sado and Abdon. These conveyances were made through the
sale and donation by the said siblings of their respective portions in the subject lot to
respondent as evidenced by the pertinent deeds.
The CA correctly held that, as between the respective claims of petitioners and
respondent, the latter has a better right to possess the subject lot.
As earlier stated, petitioners rely on the last will and testament of Isabel
Cuntapay that they had allegedly newly discovered. On the basis of this instrument, the
MTCC and RTC ruled that petitioners have a better right to the possession of the
subject lot because, following the law on succession, it should be respected and should
prevail over intestate succession.
However, contrary to the ruling of the MTCC and RTC, the purported last will and
testament of Isabel Cuntapay could not properly be relied upon to establish petitioners
right to possess the subject lot because, without having been probated, the said last will
and testament could not be the source of any right.
Article 838 of the Civil Code is instructive:
Art. 838. No will shall pass either real or personal property unless it is
proved and allowed in accordance with the Rules of Court.
The testator himself may, during his lifetime, petition the court having
jurisdiction for the allowance of his will. In such case, the pertinent
provisions of the Rules of Court for the allowance of wills after the
testators death shall govern.
The Supreme Court shall formulate such additional Rules of Court as
may be necessary for the allowance of wills on petition of the testator.

RULES COURT
Subject to the right of appeal, the allowance of the will, either during
the lifetime of the testator or after his death, shall be conclusive as to its
due execution.
In Caiza v. Court of Appeals,[11] the Court ruled that: [a] will is essentially
ambulatory; at any time prior to the testators death, it may be changed or revoked; and
until admitted to probate, it has no effect whatever and no right can be claimed
thereunder, the law being quite explicit: No will shall pass either real or personal
property unless it is proved and allowed in accordance with the Rules of Court. [12]
Dr. Tolentino, an eminent authority on civil law, also explained that [b]efore any
will can have force or validity it must be probated. To probate a will means to prove
before some officer or tribunal, vested by law with authority for that purpose, that the
instrument offered to be proved is the last will and testament of the deceased person
whose testamentary act it is alleged to be, and that it has been executed, attested and
published as required by law, and that the testator was of sound and disposing mind. It
is a proceeding to establish the validity of the will. [13] Moreover, the presentation of the
will for probate is mandatory and is a matter of public policy.[14]
Following the above truisms, the MTCC and RTC, therefore, erroneously ruled
that petitioners have a better right to possess the subject lot on the basis of the
purported last will and testament of Isabel Cuntapay, which, to date, has not been
probated. Stated in another manner, Isabel Cuntapays last will and testament, which
has not been probated, has no effect whatever and petitioners cannot claim any right
thereunder.
Hence, the CA correctly held that, as against petitioners claim, respondent has
shown a better right of possession over the subject lot as evidenced by the deeds of
conveyances executed in her favor by the children of Isabel Cuntapay by her first
marriage.

RULES COURT
Contrary to the claim of petitioners, the dismissal of respondents action for

partition in Civil Case No. 4917 before the RTC (Branch 3) of Tuguegarao City does not
constitute res judicata on the matter of the validity of the said conveyances or even as
to the issue of the ownership of the subject lot. The order dismissing respondents
action for partition in Civil Case No. 4917 stated thus:
For resolution is a motion to dismiss based on defendants [referring
to the petitioners herein] affirmative defenses consisting inter alia in the
discovery of a last will and testament of Isabel Cuntapay, the original
owner of the land in dispute.
xxx
It appears, however, that the last will and testament of the late Isabel
Cuntapay has not yet been allowed in probate, hence, there is an
imperative need to petition the court for the allowance of said will to
determine once and for all the proper legitimes of legatees and devisees
before any partition of the property may be judicially adjudicated.
It is an elementary rule in law that testate proceedings take
precedence over any other action especially where the will evinces the
intent of the testator to dispose of his whole estate.
With the discovery of the will of the late Isabel Cuntapay in favor of
the defendants, the Court can order the filing of a petition for the probate
of the same by the interested party.
WHEREFORE, in light of the foregoing considerations, let the aboveentitled case be as it is hereby DISMISSED.
SO ORDERED.[15]
For there to be res judicata, the following elements must be present: (1) finality of
the former judgment; (2) the court which rendered it had jurisdiction over the subject
matter and the parties; (3) it must be a judgment on the merits; and (4) there must be,
between the first and second actions, identity of parties, subject matter and causes of
action.[16] The third requisite, i.e., that the former judgment must be a judgment on the

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merits, is not present between the action for partition and the complaint a quo for
unlawful detainer. As aptly observed by the CA:
Our reading of the Orders (dated June 16, 1997 and October 13,
1997) in Civil Case No. 4917 reveals that the RTC, Branch 3, Tuguegarao,
Cagayan, dismissed the complaint for partition because of the discovery of
the alleged last will and testament of Isabel Cuntapay. The court did not
declare respondents [referring to the petitioners herein] the owners of the
disputed property. It simply ordered them to petition the court for the
allowance of the will to determine the proper legitimes of the heirs prior to
any partition. Instead of filing the appropriate petition for the probate of
Isabel Cuntapays will, the respondents filed the present complaint for
unlawful detainer. Viewed from this perspective, we have no doubt that
the courts Orders cited by the respondents are not judgments on the
merits that would result in the application of the principle of res
judicata. Where the trial court merely refrained from proceeding with the
case and granted the motion to dismiss with some clarification without
conducting a trial on the merits, there is no res judicata.[17]

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Further, it is not quite correct for petitioners to contend that the children of Isabel
Cuntapay by her first marriage could not have conveyed portions of the subject lot to
respondent, as she had claimed, because until the present, it is still covered by OCT
Nos. 196 and 1032 under the names of Pedro and Leona Cuntapay. To recall, it was
already agreed by the heirs of the said spouses in a Partition Agreement
dated December 28, 1979 that the subject lot would belong to Isabel Cuntapay. The
latter died leaving her six children by both marriages as heirs. Considering that her
purported last will and testament has, as yet, no force and effect for not having been
probated, her six children are deemed to be co-owners of the subject lot having their
respective pro indiviso shares. The conveyances made by the children of Isabel
Cuntapay by her first marriage of their respective pro indiviso shares in the subject lot to
respondent are valid because the law recognizes the substantive right of heirs to
dispose of their ideal share in the co-heirship and/co-ownership among the heirs. The
Court had expounded the principle in this wise:
This Court had the occasion to rule that there is no doubt that an
heir can sell whatever right, interest, or participation he may have in the
property under administration. This is a matter which comes under the
jurisdiction of the probate court.
The right of an heir to dispose of the decedents property, even if
the same is under administration, is based on the Civil Code provision
stating that the possession of hereditary property is deemed transmitted to
the heir without interruption and from the moment of the death of the
decedent, in case the inheritance is accepted. Where there are however,
two or more heirs, the whole estate of the decedent is, before its partition,
owned in common by such heirs.
The Civil Code, under the provisions of co-ownership, further
qualifies this right. Although it is mandated that each co-owner shall have
the full ownership of his part and of the fruits and benefits pertaining
thereto, and thus may alienate, assign or mortgage it, and even substitute
another person in its enjoyment, the effect of the alienation or the
mortgage, with respect to the co-owners, shall be limited to the portion
which may be allotted to him in the division upon the termination of the co-

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ownership. In other words, the law does not prohibit a co-owner from
selling, alienating or mortgaging his ideal share in the property held in
common.
As early as 1942, this Court has recognized said right of an heir to
dispose of property under administration. In the case of Teves de
Jakosalem vs. Rafols, et al., it was said that the sale made by an heir of
his share in an inheritance, subject to the result of the pending
administration, in no wise, stands in the way of such administration. The
Court then relied on the provision of the old Civil Code, Article 440 and
Article 399 which are still in force as Article 533 and Article 493,
respectively, in the new Civil Code. The Court also cited the words of a
noted civilist, Manresa: Upon the death of a person, each of his heirs
becomes the undivided owner of the whole estate left with respect to the
part or portion which might be adjudicated to him, a community of
ownership being thus formed among the co-owners of the estate which
remains undivided.[18]
Contrary to the assertion of petitioners, therefore, the conveyances made by the

children of Isabel Cuntapay by her first marriage to respondent are valid insofar as
their pro indiviso shares are concerned. Moreover, the CA justifiably held that these
conveyances, as evidenced by the deed of donation and deed of sale presented by
respondent, coupled with the fact that she has been in possession of the subject lot
since 1955, establish that respondent has a better right to possess the same as against
petitioners whose claim is largely based on Isabel Cuntapays last will and testament
which, to date, has not been probated; hence, has no force and effect and under which
no right can be claimed by petitioners. Significantly, the probative value of the other
evidence relied upon by petitioners to support their claim, which was the affidavit of
Heliodoro Turingan, was not passed upon by the MTCC and the RTC. Their respective
decisions did not even mention the same.
In conclusion, it is well to stress the CAs admonition that

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x x x our ruling on the issue of physical possession does not affect

title to the property nor constitute a binding and conclusive adjudication on
the merits on the issue of ownership. The parties are not precluded from
filing the appropriate action directly contesting the ownership of or the title
to the property.[19]
Likewise, it is therefore in this context that the CAs finding on the validity of
Isabel Cuntapays last will and testament must be considered. Such is merely a
provisional ruling thereon for the sole purpose of determining who is entitled to
possession de facto.
WHEREFORE, premises considered, the petition is DENIED. The assailed

Decision dated February 16, 2005 and the Resolution dated May 17, 2005 of the Court
of Appeals in CA-G.R. SP No. 80032 are AFFIRMED.
SO ORDERED.
SECOND DIVISION
DY YIENG SEANGIO,
BARBARA D. SEANGIO
and VIRGINIA D. SEANGIO,
Petitioners,
-
versus -
G.R. Nos. 140371-72

Present:
PUNO, J., Chairperson,
SANDOVAL-GUTIERREZ,
CORONA,

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AZCUNA, and
HON. AMOR A. REYES, in her
GARCIA, JJ.
capacity as Presiding Judge,
Regional Trial Court, National
Capital Judicial Region, Branch 21,
Manila, ALFREDO D. SEANGIO,
ALBERTO D. SEANGIO, ELISA D.
Promulgated:
SEANGIO-SANTOS, VICTOR D.
SEANGIO, ALFONSO D. SEANGIO,
SHIRLEY D. SEANGIO-LIM,
November 27, 2006
BETTY D. SEANGIO-OBAS and
JAMES D. SEANGIO,
Respondents.
x ---------------------------------------------------------------------------------------- x
DECISION
AZCUNA, J.:
This is a petition for certiorari[1] with application for the issuance of a writ of
preliminary injunction and/or temporary restraining order seeking the nullification of the
orders, dated August 10, 1999 and October 14, 1999, of the Regional Trial Court of
Manila, Branch 21 (the RTC), dismissing the petition for probate on the ground of
preterition, in the consolidated cases, docketed as SP. Proc. No. 98-90870 and SP.
Proc. No. 99-93396, and entitled, In the Matter of the Intestate Estate of Segundo C.
Seangio v. Alfredo D. Seangio, et al. and In the Matter of the Probate of the Will of
Segundo C. Seangio v. Dy Yieng Seangio, Barbara D. Seangio and Virginia Seangio.
The facts of the cases are as follows:
On September 21, 1988, private respondents filed a petition for the settlement of
the intestate estate of the late Segundo Seangio, docketed as Sp. Proc. No. 9890870

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of the RTC, and praying for the appointment of private respondent Elisa D. Seangio
Santos as special administrator and guardian ad litem of petitioner Dy Yieng Seangio.
Petitioners Dy Yieng, Barbara and Virginia, all surnamed Seangio, opposed the
petition. They contended that: 1) Dy Yieng is still very healthy and in full command of
her faculties; 2) the deceased Segundo executed a general power of attorney in favor of
Virginia giving her the power to manage and exercise control and supervision over his
business in the Philippines; 3) Virginia is the most competent and qualified to serve as
the administrator of the estate of Segundo because she is a certified public accountant;
and, 4) Segundo left a holographic will, dated September 20, 1995, disinheriting one of
the private respondents, Alfredo Seangio, for cause. In view of the purported
holographic will, petitioners averred that in the event the decedent is found to have left a
will, the intestate proceedings are to be automatically suspended and replaced by the
proceedings for the probate of the will.
On April 7, 1999, a petition for the probate of the holographic will of Segundo,
docketed as SP. Proc. No. 9993396, was filed by petitioners before the RTC. They
likewise reiterated that the probate proceedings should take precedence over SP. Proc.
No. 9890870 because testate proceedings take precedence and enjoy priority over
intestate proceedings.[2]
The document that petitioners refer to as Segundos holographic will is quoted, as
follows:
Kasulatan sa pag-aalis ng mana
Tantunin ng sinuman
Ako si Segundo Seangio Filipino may asawa naninirahan sa 465-A
Flores St., Ermita, Manila at nagtatalay ng maiwanag na pag-iisip at
disposisyon ay tahasan at hayagang inaalisan ko ng lahat at anumang
mana ang paganay kong anak na si Alfredo Seangio dahil siya ay naging

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lapastangan sa akin at isan beses siya ng sasalita ng masama harapan ko

at mga kapatid niya na si Virginia Seangio labis kong kinasama ng
loob ko at sasabe rin ni Alfredo sa akin na ako nasa ibabaw gayon gunit
daratin ang araw na ako nasa ilalim siya at siya nasa ibabaw.
Labis kong ikinasama ng loob ko ang gamit ni Alfredo ng akin
pagalan para makapagutang na kuarta siya at kanya asawa na si Merna
de los Reyes sa China Bangking Corporation na millon pesos at hindi ng
babayad at hindi ng babayad ito ay nagdulot sa aking ng malaking
kahihiya sa mga may-ari at stockholders ng China Banking.
At ikinagalit ko pa rin ang pagkuha ni Alfredo at ng kanyang asawa
na mga custome[r] ng Travel Center of the Philippines na pinagasiwaan ko
at ng anak ko si Virginia.
Dito ako nagalit din kaya gayon ayoko na bilanin si Alfredo ng anak
ko at hayanan kong inaalisan ng lahat at anoman mana na si Alfredo at si
Alfredo Seangio ay hindi ko siya anak at hindi siya makoha mana.
Nila[g]daan ko ngayon ika 20 ng Setyembre 1995 sa longsod
ng Manila sa harap ng tatlong saksi. [3]
(signed)
Segundo Seangio
Nilagdaan sa harap namin
(signed)
Dy Yieng Seangio
Unang Saksi
(signed)
ikalawang saksi
(signed)
ikatlong saksi
On May 29, 1999, upon petitioners motion, SP. Proc. No. 9890870 and SP.
Proc. No. 9993396 were consolidated. [4]
On July 1, 1999, private respondents moved for the dismissal of the probate
proceedings[5] primarily on the ground that the document purporting to be the
holographic will of Segundo does not contain any disposition of the estate of the

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deceased and thus does not meet the definition of a will under Article 783 of the Civil
Code. According to private respondents, the will only shows an alleged act of
disinheritance by the decedent of his eldest son, Alfredo, and nothing else; that all other
compulsory heirs were not named nor instituted as heir, devisee or legatee, hence,
there is preterition which would result to intestacy. Such being the case, private
respondents maintained that while procedurally the court is called upon to rule only on
the extrinsic validity of the will, it is not barred from delving into the intrinsic validity of
the same, and ordering the dismissal of the petition for probate when on the face of the
will it is clear that it contains no testamentary disposition of the property of the decedent.
Petitioners filed their opposition to the motion to dismiss contending that: 1)
generally, the authority of the probate court is limited only to a determination of the
extrinsic validity of the will; 2) private respondents question the intrinsic and not the
extrinsic validity of the will; 3) disinheritance constitutes a disposition of the estate of a
decedent; and, 4) the rule on preterition does not apply because Segundos will does
not constitute a universal heir or heirs to the exclusion of one or more compulsory
heirs.[6]
On August 10, 1999, the RTC issued its assailed order, dismissing the petition for
probate proceedings:
A perusal of the document termed as will by oppositors/petitioners
Dy Yieng Seangio, et al., clearly shows that there is preterition, as the only
heirs mentioned thereat are Alfredo and Virginia. [T]he other heirs being
omitted, Article 854 of the New Civil Code thus applies. However, insofar
as the widow Dy Yieng Seangio is concerned, Article 854 does not apply,
she not being a compulsory heir in the direct line.
As such, this Court is bound to dismiss this petition, for to do
otherwise would amount to an abuse of discretion. The Supreme Court in
the case of Acain v. Intermediate Appellate Court [155 SCRA 100 (1987)]
has made its position clear: for respondents to have tolerated the
probate of the will and allowed the case to progress when, on its face, the
will appears to be intrinsically void would have been an exercise in
futility. It would have meant a waste of time, effort, expense, plus added

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futility. The trial court could have denied its probate outright or could have
passed upon the intrinsic validity of the testamentary provisions before the
extrinsic validity of the will was resolved (underscoring supplied).
WHEREFORE, premises considered, the Motion to Suspend
Proceedings is hereby DENIED for lack of merit. Special Proceedings No.
9993396 is hereby DISMISSED without pronouncement as to costs.
SO ORDERED.[7]
Petitioners motion for reconsideration was denied by the RTC in its order
dated October 14, 1999.
Petitioners contend that:
THE RESPONDENT JUDGE ACTED IN EXCESS OF HER
JURISDICTION OR WITH GRAVE ABUSE OF DISCRETION
AMOUNTING TO LACK OR EXCESS OF JURISDICTION AND
DECIDED A QUESTION OF LAW NOT IN ACCORD WITH LAW AND
JURISPRUDENCE IN ISSUING THE QUESTIONED ORDERS, DATED
10 AUGUST 1999 AND 14 OCTOBER 1999 (ATTACHMENTS A AND B
HEREOF) CONSIDERING THAT:
I
THE RESPONDENT JUDGE, WITHOUT EVEN COMPLYING
WITH SECTIONS 3 AND 4 OF RULE 76 OF THE RULES OF COURT ON
THE PROPER PROCEDURE FOR SETTING THE CASE FOR INITIAL
HEARING FOR THE ESTABLISHMENT OF THE JURISDICTIONAL
FACTS, DISMISSED THE TESTATE CASE ON THE ALLEGED GROUND
THAT THE TESTATORS WILL IS VOID ALLEGEDLY BECAUSE OF THE
EXISTENCE OF PRETERITION, WHICH GOES INTO THE INTRINSIC
VALIDITY OF THE WILL, DESPITE THE FACT THAT IT IS A SETTLED
RULE THAT THE AUTHORITY OF PROBATE COURTS IS LIMITED
ONLY TO A DETERMINATION OF THE EXTRINSIC VALIDITY OF THE
WILL, I.E., THE DUE EXECUTION THEREOF, THE TESTATORS
TESTAMENTARY CAPACITY AND THE COMPLIANCE WITH THE
REQUISITES OR SOLEMNITIES PRESCRIBED BY LAW;

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II
EVEN ASSUMING ARGUENDO THAT THE RESPONDENT
JUDGE HAS THE AUTHORITY TO RULE UPON THE INTRINSIC
VALIDITY OF THE WILL OF THE TESTATOR, IT IS INDUBITABLE FROM
THE FACE OF THE TESTATORS WILL THAT NO PRETERITON EXISTS
AND THAT THE WILL IS BOTH INTRINSICALLY AND EXTRINSICALLY
VALID; AND,
III
RESPONDENT JUDGE WAS DUTY BOUND TO SUSPEND THE
PROCEEDINGS IN THE INTESTATE CASE CONSIDERING THAT IT IS A
SETTLED RULE THAT TESTATE PROCEEDINGS TAKE PRECEDENCE
OVER INTESTATE PROCEEDINGS.
Petitioners argue, as follows:
First, respondent judge did not comply with Sections 3 and 4 of Rule 76 of the
Rules of Court which respectively mandate the court to: a) fix the time and place for
proving the will when all concerned may appear to contest the allowance thereof, and
cause notice of such time and place to be published three weeks successively previous
to the appointed time in a newspaper of general circulation; and, b) cause the mailing of
said notice to the heirs, legatees and devisees of the testator Segundo;
Second, the holographic will does not contain any institution of an heir, but rather,
as its title clearly states, Kasulatan ng Pag-Aalis ng Mana, simply contains a
disinheritance of a compulsory heir. Thus, there is no preterition in the decedents will
and the holographic will on its face is not intrinsically void;
Third, the testator intended all his compulsory heirs, petitioners and private
respondents alike, with the sole exception of Alfredo, to inherit his estate. None of the
compulsory heirs in the direct line of Segundo were preterited in the holographic will
since there was no institution of an heir;

RULES COURT
Fourth, inasmuch as it clearly appears from the face of the holographic will that it
is both intrinsically and extrinsically valid, respondent judge was mandated to proceed
with the hearing of the testate case; and,
Lastly, the continuation of the proceedings in the intestate case will work injustice
to petitioners, and will render nugatory the disinheritance of Alfredo.
The purported holographic will of Segundo that was presented by petitioners was
dated, signed and written by him in his own handwriting. Except on the ground of
preterition, private respondents did not raise any issue as regards the authenticity of the
document.
The document, entitled Kasulatan ng Pag-Aalis ng Mana, unmistakably showed
Segundos intention of excluding his eldest son, Alfredo, as an heir to his estate for the
reasons that he cited therein. In effect, Alfredo was disinherited by Segundo.
For disinheritance to be valid, Article 916 of the Civil Code requires that the same
must be effected through a will wherein the legal cause therefor shall be specified. With
regard to the reasons for the disinheritance that were stated by Segundo in his
document, the Court believes that the incidents, taken as a whole, can be considered a
form of maltreatment of Segundo by his son, Alfredo, and that the matter presents a
sufficient cause for the disinheritance of a child or descendant under Article 919 of the
Civil Code:
Article 919. The following shall be sufficient causes for the
disinheritance of children and descendants, legitimate as well as
illegitimate:
(1)
When a child or descendant has been found guilty of an

attempt against the life of the testator, his or her spouse,
descendants, or ascendants;

RULES COURT
(2)
(3)
(4)
(5)
(6)
(7)
(8)
When a child or descendant has accused the testator of a

crime for which the law prescribes imprisonment for six years or
more, if the accusation has been found groundless;
When a child or descendant has been convicted of adultery or
concubinage with the spouse of the testator;
When a child or descendant by fraud, violence, intimidation, or
undue influence causes the testator to make a will or to change one
already made;
A refusal without justifiable cause to support the parents or
ascendant who disinherit such child or descendant;
Maltreatment of the testator by word or deed, by the child or
descendant;[8]
When a child or descendant leads a dishonorable or
disgraceful life;
Conviction of a crime which carries with it the penalty of civil
interdiction.
Now, the critical issue to be determined is whether the document executed by

Segundo can be considered as a holographic will.
A holographic will, as provided under Article 810 of the Civil Code, must be
entirely written, dated, and signed by the hand of the testator himself. It is subject to no
other form, and may be made in or out of the Philippines, and need not be witnessed.
Segundos document, although it may initially come across as a mere
disinheritance instrument, conforms to the formalities of a holographic will prescribed by
law. It is written, dated and signed by the hand of Segundo himself. An intent to
dispose mortis causa[9] can be clearly deduced from the terms of the instrument, and
while it does not make an affirmative disposition of the latters property, the
disinheritance of Alfredo, nonetheless, is an act of disposition in itself. In other words,
the disinheritance results in the disposition of the property of the testator Segundo in
favor of those who would succeed in the absence of Alfredo. [10]

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Moreover, it is a fundamental principle that the intent or the will of the testator,
expressed in the form and within the limits prescribed by law, must be recognized as the
supreme law in succession. All rules of construction are designed to ascertain and give
effect to that intention. It is only when the intention of the testator is contrary to law,
morals, or public policy that it cannot be given effect. [11]
Holographic wills, therefore, being usually prepared by one who is not learned in
the law, as illustrated in the present case, should be construed more liberally than the
ones drawn by an expert, taking into account the circumstances surrounding the
execution of the instrument and the intention of the testator. [12] In this regard, the Court
is convinced that the document, even if captioned as Kasulatan ng Pag-Aalis ng
Mana, was intended by Segundo to be his last testamentary act and was executed by
him in accordance with law in the form of a holographic will. Unless the will is probated,
[13]
the disinheritance cannot be given effect.[14]

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With regard to the issue on preterition,[15] the Court believes that the compulsory
heirs in the direct line were not preterited in the will. It was, in the Courts opinion,
Segundos last expression to bequeath his estate to all his compulsory heirs, with the
sole exception of Alfredo. Also, Segundo did not institute an heir[16] to the exclusion of
his other compulsory heirs. The mere mention of the name of one of the petitioners,
Virginia, in the document did not operate to institute her as the universal heir. Her name
was included plainly as a witness to the altercation between Segundo and his son,
Alfredo.
Considering that the questioned document is Segundos holographic will, and that
the law favors testacy over intestacy, the probate of the will cannot be dispensed with.
Article 838 of the Civil Code provides that no will shall pass either real or personal
property unless it is proved and allowed in accordance with the Rules of Court. Thus,
unless the will is probated, the right of a person to dispose of his property may be
rendered nugatory.[17]
In view of the foregoing, the trial court, therefore, should have allowed the
holographic will to be probated. It is settled that testate proceedings for the settlement of
the estate of the decedent take precedence over intestate proceedings for the same
purpose.[18]
WHEREFORE, the petition is GRANTED. The Orders of the Regional Trial Court
of Manila, Branch 21, dated August 10, 1999 and October 14, 1999, are set aside.
Respondent judge is directed to reinstate and hear SP Proc. No. 99-93396 for the
allowance of the holographic will of Segundo Seangio. The intestate case or SP. Proc.
No. 98-90870 is hereby suspended until the termination of the aforesaid testate
proceedings.
No costs.

RULES COURT
SO ORDERED.
SECOND DIVISION
[G.R. No. 46078. May 25, 1939.]
In the matter of the will of the deceases Mauro Salvacion. GREGORIA REYNOSO,
administratrix-appellant, v. JOSE E. TOLENTINO, guardian ad litem of the minors
Maurito and Remedios Aguila, JOAQUIN CAMPOSANO, guardian ad litem of the
minor Corazon Camposano, VALERIO SALVACION, NUMERIANO SALVACION,
AMADEO SALVAClON, and MARTINA ALLA, legatees-appellants.
Feria & La O for administratrix and Appellant.
Andres Laredo, Sumulong, Lavides & Sumulong, and Elias C. Desembrana for
legatees and appellants.
SYLLABUS
1. PARTITION OF CONJUGAL PROPERTY; RIGHT OF EACH SPOUSE IN
CONJUGAL PROPERTY. The widow opposed the approval of the partition as to the
coconut trees, alleging that it is unequal not only as to the number of trees but also as to
the quality thereof. The court should have substantiated the opposition of the widow and
should have given her an opportunity to adduce evidence in its support. However, the
court, relying only upon the fact that the partition was made in accordance with the will
of the deceased, approved it. The will, in so far as the testator alone made therein a
partition of the conjugal properties by assigning to himself those which he liked and to
the wife those which she did not like, is illegal. The conjugal property is one between
husband and wife wherein each one, except as to the administration thereof, has equal
rights. Each one has a right to one-half of these properties and each one occupies the
same position as to its ownership. It . is an encroachment upon these rights of each of
the spouses if one of them could designate which and how much of these properties
should correspond to him. Any of the spouses is entitled to be heard in the partition of
the conjugal properties in order to defend his or her equal share.

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2. ID.; ID.; USUFRUCT OF THE WIDOW UNDER ARTICLE 837 OF THE CIVIL CODE.
The usufruct which article 837 of the Civil Code gives to the widow is upon one-half
of the properties of the deceased spouse and not upon the properties of the widow
herself, such as the half of the conjugal properties corresponding to her.
3. ID.; ID.; ALLOWANCE RECEIVED BY THE WIDOW. The contention that the
allowance received by the widow should be charged against her share in the conjugal
properties in so far as it exceeds the fruits of the properties corresponding to her, is
perfectly legal. But we are precluded from ruling upon this point, because there is
neither showing nor allegation as to the amount of the fruit of the properties during the
liquidation. Without this, we are not in a position to decide whether or not the widow
received by way of allowance more than that corresponding to her from the fruits of the
properties.
DECISION
AVANCEA, C.J. :
Mauro Salvacion died on June 30, 1932 in the municipality of Lucena, Province of
Tayabas, without leaving any descendant or ascendant. His widow, Gregoria Reynoso,
who survived him, is now the administratrix appointed in this testate proceeding.
The properties left by the deceased are conjugal in nature because they were acquired
during his marriage with his widow. He left a will and a codicil upon his death, wherein
he made a partition of the conjugal properties between him and his widow, and
disposed by way of legacy of the half corresponding to him.
The attorney of the administration of this testate thereafter prepared the partition of the
properties left by the deceased between the widow and the legatees.
The widow opposed the approval of this partition as to the coconut trees, alleging that it
is unequal not only as to the number of trees but also as to the quality thereof. Over this
opposition of the widow, the court, without affording her an opportunity to substantiate
her opposition and present evidence in support thereof, approved the partition. To this
resolution the widow excepted.
The legatees, on the other hand, also opposed the approval of the partition in so far as

RULES COURT
it casts the burden of the widows usufruct upon one-half of what corresponds to each
one. Moreover, these legatees contend that the allowance received by the widow during
the liquidation of the conjugal properties should be charged against her in so far as it
exceeds the products of the properties allotted to her. The court also overruled this
opposition and approved the partition in this respect.
In so far as it refers to the appeal of the widow, we are of the opinion that the resolution
of the court, approving the partition, is erroneous. The court should have substantiated
the opposition of the widow and should have given her an opportunity to adduce
evidence in its support. However, the court, relying only upon the fact that the partition
was made in accordance with the will of the deceased, approved it. The will, in so far as
the testator alone made therein a partition of the conjugal properties by assigning to
himself those which he liked and to the wife those which she did not like, is illegal. The
conjugal property is one between husband and wife wherein each one, except as to the
administration thereof, has equal rights. Each one has a right to one-half of these
properties and each one occupies the same position as to its ownership. It is an
encroachment upon these rights of each of the spouses if one of them could designate
which and how much of these properties should correspond to him. Any of the spouses
is entitled to be heard in the partition of the conjugal properties in order to defend his or
her equal share.
As to the appeal of the legatees, the theory upon which it is based is plainly erroneous.
The usufruct which article 837 of the Civil Code gives to the widow is upon one-half of
the properties of the deceased spouse and not upon the properties of the widow herself,
such as the half of the conjugal properties corresponding to her.
The contention that the allowance received by the widow should be charged against her
share in the conjugal properties in so far as it exceeds the fruits of the properties
corresponding to her, is perfectly legal. But we are precluded from ruling upon this point,
because there is neither showing nor allegation as to the amount of the fruits of the
properties during the liquidation. Without this, we are not in a position to decide whether
or not the widow received by way of allowance more than that corresponding to her
from the fruits of the properties.
In view of the foregoing, the appealed judgment is modified in the sense that the court
should permit the widow to substantiate her opposition and to present evidence in
support thereof, and is affirmed in all other respects, with the costs to the defendants as
appellants and legatees. So ordered.

RULES COURT
Villa-Real, Imperial, Diaz, Laurel, Concepcion, and Moran, JJ., concur.

SUPREME COURT
Manila
EN BANC
G.R. No. L-12207
December 24, 1959
JUAN PALACIOS, petitioner-appellant,

vs.
MARIA CATIMBANG PALACIOS, oppositor-appellee.
Augusto Francisco and Vicente Reyes Villavicencio for appellant.
Laureano C. Alano and Enrique A. Amador for appellee.
BAUTISTA ANGELO, J.:

RULES COURT
Juan Palacios executed his last will and testament on June 25, 1946 and availing
himself of the provisions of the new Civil Code, he filed on May 23, 1956 before the
Court of First Instance of Batangas a petition for its approval. In said will, he instituted
as his sole heirs his natural children Antonio C. Palacios and Andrea C. Palacios.
On June 21, 1956, Maria Catimbang filed a opposition to the probate of the will alleging
that she is the acknowledged natural daughter of petitioner but that she was completely
ignored in said will thus impairing here legitime.
After the presentation of petitioner's evidence relative to the essential requisites and
formalities provided by law for the validity of a will, the court on July 6, 1956 issued an
order admitting the will to probate. The court, however, set a date for the hearing of the
opposition relative to the intrinsic validity of the will and, after proper hearing concerning
this incident, the court issued another order declaring oppositor to be the natural child of
petitioner and annulling the will insofar as it impairs her legitime, with costs against
petitioner.
From this last order, petitioner gave notice of his intention to appeal directly to the
Supreme Court, and accordingly, the record was elavated to this Court.
It should be noted that petition instituted the present proceeding in order to secure the
probate of his will availing himself of the provisions of Article 838, paragraph 2, of the
new Civil Code, which permit a testator to petition the proper court during his lifetime for
the allowance of his will, but to such petition on Maria Catimbang filed an opposition
alleging that she is the acknowledged natural daughter of petitioner but that she was
completely ignored in the will thus impairing her object to the probate of the will insofar
as it due execution is concerned or on the ground that it has not complied with the
formalities prescribed by law; rather she objects to its intrinsic validity or to the legality of
the provisions of the will.
We hold that such opposition cannot be entertained in this proceeding because its only
purpose is merely to determine if the will has been executed in accordance with the
requirements of the law, much less if the purpose of the opposition is to show that the
oppositor is an acknowledged natural child who allegedly has been ignored in the will
for issue cannot be raised here but in a separate action. This is especially so when the
testator, as in the present case, is still alive and has merely filed a petition for the
allowance of his will leaving the effects thereof after his death.lawphi1.net

RULES COURT
This is in line with our ruling in Montaano vs. Suesa, 14 Phil., 676, wherein we said:
"The authentication of the will decides no other questions than such as touch upon the
capacity of the testator and the compliance with those requisites or solemnities which
the law prescribes for the validity of a will. It does not determine nor even by implication
prejudge the validity or efficiency of the provisions; that may be impugned as being
vicious or null, notwithstanding its authentication. The questions relating to these points
remain entirely un-affected, and may be raised even after the will has been
authenticated."
On the other hand, "after a will has been probated during the lifetime of a testator, it
does not necessarily mean that he cannot alter or revoke the same before he has had a
chance to present such petition, the ordinary probate proceedings after the testator's
death would be in order" (Report of the Code Commission, pp. 53-54).The reason for
this comment is that the rights to the succession are transmitted from the moment of the
death of the decedent (Article 777, new Civil Code.).
It is clear that the trial court erred in entertaining the opposition and in annulling the
portion of the will which allegedly impairs the legitime of the oppositor on the ground
that, as it has found, she is an extraneous matter which should be treshed out in a
separate action.
Wherefore, the order appealed from is set aside, without pronouncement as to costs.
Paras, C.J., Bengzon, Padilla, Labrador, Concepcion, Endencia, Barrera and Gutierrez
David., JJ., concur.

SUPREME COURT
Manila
EN BANC
G.R. No. L-23445
June 23, 1966

RULES COURT
REMEDIOS NUGUID, petitioner and appellant,

vs.
FELIX NUGUID and PAZ SALONGA NUGUID, oppositors and appellees.
Custodio O. Partade for petitioner and appellant.
Beltran, Beltran and Beltran for oppositors and appellees.
SANCHEZ, J.:
Rosario Nuguid, a resident of Quezon City, died on December 30, 1962, single, without
descendants, legitimate or illegitimate. Surviving her were her legitimate parents, Felix
Nuguid and Paz Salonga Nuguid, and six (6) brothers and sisters, namely: Alfredo,
Federico, Remedios, Conrado, Lourdes and Alberto, all surnamed Nuguid.
On May 18, 1963, petitioner Remedios Nuguid filed in the Court of First Instance of
Rizal a holographic will allegedly executed by Rosario Nuguid on November 17, 1951,
some 11 years before her demise. Petitioner prayed that said will be admitted to probate
and that letters of administration with the will annexed be issued to her.
On June 25, 1963, Felix Nuguid and Paz Salonga Nuguid, concededly the legitimate
father and mother of the deceased Rosario Nuguid, entered their opposition to the
probate of her will. Ground therefor, inter alia, is that by the institution of petitioner
Remedios Nuguid as universal heir of the deceased, oppositors who are compulsory
heirs of the deceased in the direct ascending line were illegally preterited and that in
consequence the institution is void.
On August 29, 1963, before a hearing was had on the petition for probate and objection
thereto, oppositors moved to dismiss on the ground of absolute preterition.
On September 6, 1963, petitioner registered her opposition to the motion to
dismiss.1wph1.t
The court's order of November 8, 1963, held that "the will in question is a complete
nullity and will perforce create intestacy of the estate of the deceased Rosario Nuguid"
and dismissed the petition without costs.
A motion to reconsider having been thwarted below, petitioner came to this Court on
appeal.

RULES COURT
1. Right at the outset, a procedural aspect has engaged our attention. The case is for
the probate of a will. The court's area of inquiry is limited to an examination of, and
resolution on, the extrinsic validity of the will. The due execution thereof, the testatrix's
testamentary capacity, and the compliance with the requisites or solemnities by law
prescribed, are the questions solely to be presented, and to be acted upon, by the court.
Said court at this stage of the proceedings is not called upon to rule on
the intrinsic validity or efficacy of the provisions of the will, the legality of any devise or
legacy therein.1
A peculiar situation is here thrust upon us. The parties shunted aside the question of
whether or not the will should be allowed probate. For them, the meat of the case is the
intrinsic validity of the will. Normally, this comes only after the court has declared that
the will has been duly authenticated.2 But petitioner and oppositors, in the court below
and here on appeal, travelled on the issue of law, to wit: Is the will intrinsically a nullity?
We pause to reflect. If the case were to be remanded for probate of the will, nothing will
be gained. On the contrary, this litigation will be protracted. And for aught that appears
in the record, in the event of probate or if the court rejects the will, probability exists that
the case will come up once again before us on the same issue of the intrinsic validity or
nullity of the will. Result: waste of time, effort, expense, plus added anxiety. These are
the practical considerations that induce us to a belief that we might as well meet headon the issue of the validity of the provisions of the will in question. 3 After all, there exists
a justiciable controversy crying for solution.
2. Petitioner's sole assignment of error challenges the correctness of the conclusion
below that the will is a complete nullity. This exacts from us a study of the disputed will
and the applicable statute.
Reproduced hereunder is the will:
Nov. 17, 1951
I, ROSARIO NUGUID, being of sound and disposing mind and memory, having
amassed a certain amount of property, do hereby give, devise, and bequeath all of the
property which I may have when I die to my beloved sister Remedios Nuguid, age 34,
residing with me at 38-B Iriga, Q.C. In witness whereof, I have signed my name this
seventh day of November, nineteen hundred and fifty-one.
(Sgd.) Illegible

RULES COURT
T/ ROSARIO NUGUID
The statute we are called upon to apply in Article 854 of the Civil Code which, in part,
provides:
ART. 854. The preterition or omission of one, some, or all of the compulsory heirs
in the direct line, whether living at the time of the execution of the will or born
after the death of the testator, shall annul the institution of heir; but the devises
and legacies shall be valid insofar as they are not inofficious. ...
Except for inconsequential variation in terms, the foregoing is a reproduction of Article
814 of the Civil Code of Spain of 1889, which is similarly herein copied, thus
Art. 814. The preterition of one or all of the forced heirs in the direct line, whether
living at the time of the execution of the will or born after the death of the testator,
shall void the institution of heir; but the legacies and betterments 4 shall be valid,
in so far as they are not inofficious. ...
A comprehensive understanding of the term preterition employed in the law becomes a
necessity. On this point Manresa comments:
La pretericion consiste en omitar al heredero en el testamento. O no se le
nombra siquiera o aun nombrandole como padre, hijo, etc., no se le instituya
heredero ni se le deshereda expresamente ni se le asigna parte alguna de los
bienes, resultando privado de un modo tacito de su derecho a legitima.
Para que exista pretericion, con arreglo al articulo 814, basta que en el
testamento omita el testador a uno cualquiera de aquellos a quienes por su
muerte corresponda la herencia forzosa.
Se necesita, pues, a) Que la omision se refiera a un heredero forzoso. b) Que la
omision sea completa; que el heredero forzoso nada reciba en el testamento.
It may now appear trite bat nonetheless helpful in giving us a clear perspective of the
problem before us, to have on hand a clear-cut definition of the word annul:
To "annul" means to abrogate, to make void ... In re Morrow's Estate, 54 A. 342,
343, 204 Pa. 484.6

RULES COURT
The word "annul" as used in statute requiring court to annul alimony provisions of
divorce decree upon wife's remarriage means to reduce to nothing; to annihilate;
obliterate; blot out; to make void or of no effect; to nullify; to abolish. N.J.S.A.
2:50 38 (now N.J.S. 2A:34-35). Madden vs. Madden, 40 A. 2d 611, 614, 136
N..J Eq. 132.7
ANNUL. To reduce to nothing; annihilate; obliterate; to make void or of no effect;
to nullify; to abolish; to do away with. Ex parte Mitchell, 123 W. Va. 283, 14 S.E.
2d. 771, 774.8
And now, back to the facts and the law. The deceased Rosario Nuguid left no
descendants, legitimate or illegitimate. But she left forced heirs in the direct ascending
line her parents, now oppositors Felix Nuguid and Paz Salonga Nuguid. And, the will
completely omits both of them: They thus received nothing by the testament; tacitly, they
were deprived of their legitime; neither were they expressly disinherited. This is a clear
case of preterition. Such preterition in the words of Manresa "anulara siempre la
institucion de heredero, dando caracter absoluto a este ordenamiento referring to the
mandate of Article 814, now 854 of the Civil Code. 9 The one-sentence will here
institutes petitioner as the sole, universal heir nothing more. No specific legacies or
bequests are therein provided for. It is in this posture that we say that the nullity is
complete. Perforce, Rosario Nuguid died intestate. Says Manresa:
En cuanto a la institucion de heredero, se anula. Lo que se anula deja de existir,
en todo o en parte? No se aade limitacion alguna, como en el articulo 851, en el
que se expresa que se anulara la institucion de heredero en cuanto prejudique a
la legitima del deseheredado Debe, pues, entenderse que la anulacion es
completa o total, y que este articulo como especial en el caso que le motiva rige
con preferencia al 817. 10
The same view is expressed by Sanchez Roman:
La consecuencia de la anulacion o nulidad de la institucion de heredero por
pretericion de uno, varios o todos los forzosos en linea recta, es la apertura de la
sucesion intestada total o parcial. Sera total, cuando el testador que comete la
pretericion, hubiese dispuesto de todos los bienes por titulo universal de
herencia en favor de los herederos instituidos, cuya institucion se anula, porque
asi lo exige la generalidad del precepto legal del art. 814, al determinar, como
efecto de la pretericion, el de que "anulara la institucion de heredero." ... 11

RULES COURT
Really, as we analyze the word annul employed in the statute, there is no escaping the
conclusion that the universal institution of petitioner to the entire inheritance results
in totally abrogating the will. Because, the nullification of such institution of universal heir
without any other testamentary disposition in the will amounts to a declaration that
nothing at all was written. Carefully worded and in clear terms, Article 854 offers no
leeway for inferential interpretation. Giving it an expansive meaning will tear up by the
roots the fabric of the statute. On this point, Sanchez Roman cites the "Memoria annual
del Tribunal Supreme, correspondiente a 1908", which in our opinion expresses the rule
of interpretation, viz:
... El art. 814, que preceptua en tales casos de pretericion la nulidad de la
institucion de heredero, no consiente interpretacion alguna favorable a la
persona instituida en el sentido antes expuesto aun cuando parezca, y en algun
caso pudiera ser, mas o menos equitativa, porque una nulidad no significa en
Derecho sino la suposicion de que el hecho o el acto no se ha realizado,
debiendo por lo tanto procederse sobre tal base o supuesto, y
consiguientemente, en un testamento donde falte la institucion, es obligado
llamar a los herederos forzosos en todo caso, como habria que llamar a los de
otra clase, cuando el testador no hubiese distribudo todos sus bienes en
legados, siendo tanto mas obligada esta consecuencia legal cuanto que, en
materia de testamentos, sabido es, segun tiene declarado la jurisprudencia, con
repeticion, que no basta que sea conocida la voluntad de quien testa si esta
voluntad no aparece en la forma y en las condiciones que la ley ha exigido para
que sea valido y eficaz, por lo que constituiria una interpretacion arbitraria,
dentro del derecho positivo, reputar como legatario a un heredero cuya
institucion fuese anulada con pretexto de que esto se acomodaba mejor a la
voluntad del testador, pues aun cuando asi fuese, sera esto razon para modificar
la ley, pero no autoriza a una interpretacion contraria a sus terminos y a los
principios que informan la testamentifaccion, pues no porque parezca mejor una
cosa en el terreno del Derecho constituyente, hay razon para convereste juicio
en regla de interpretacion, desvirtuando y anulando por este procedimiento lo
que el legislador quiere establecer. 12
3. We should not be led astray by the statement in Article 854 that, annullment
notwithstanding, "the devises and legacies shall be valid insofar as they are not
inofficious". Legacies and devises merit consideration only when they are so expressly
given as such in a will. Nothing in Article 854 suggests that the mere institution of a
universal heir in a will void because of preterition would give the heir so instituted
a share in the inheritance. As to him, the will is inexistent. There must be, in addition to

RULES COURT
such institution, a testamentary disposition granting him bequests or legacies apart and
separate from the nullified institution of heir. Sanchez Roman, speaking of the two
component parts of Article 814, now 854, states that preterition annuls the institution of
the heir "totalmente por la pretericion"; but added (in reference to legacies and
bequests) "pero subsistiendo ... todas aquellas otras disposiciones que no se refieren a
la institucion de heredero ... . 13 As Manresa puts it, annulment throws open to intestate
succession the entire inheritance including "la porcion libre (que) no hubiese dispuesto
en virtud de legado, mejora o donacion. 14
As aforesaid, there is no other provision in the will before us except the institution of
petitioner as universal heir. That institution, by itself, is null and void. And, intestate
succession ensues.
4. Petitioner's mainstay is that the present is "a case of ineffective disinheritance rather
than one of preterition". 15From this, petitioner draws the conclusion that Article 854
"does not apply to the case at bar". This argument fails to appreciate the distinction
between pretention and disinheritance.
Preterition "consists in the omission in the testator's will of the forced heirs or anyone of
them, either because they are not mentioned therein, or, though mentioned, they are
neither instituted as heirs nor are expressly disinherited." 16 Disinheritance, in turn, "is
a testamentary disposition depriving any compulsory heir of his share in the legitime for
a cause authorized by law. " 17 In Manresa's own words: "La privacion expresa de la
legitima constituye la desheredacion. La privacion tacita de la misma se
denomina pretericion." 18 Sanchez Roman emphasizes the distinction by stating that
disinheritance "es siempre voluntaria"; preterition, upon the other hand, is presumed to
be "involuntaria". 19 Express as disinheritance should be, the same must be supported
by a legal cause specified in the will itself. 20
The will here does not explicitly disinherit the testatrix's parents, the forced heirs. It
simply omits their names altogether. Said will rather than be labeled ineffective
disinheritance is clearly one in which the said forced heirs suffer from preterition.
On top of this is the fact that the effects flowing from preterition are totally different from
those of disinheritance. Preterition under Article 854 of the Civil Code, we repeat, "shall
annul the institution of heir". This annulment is in toto, unless in the will there are, in
addition, testamentary dispositions in the form of devises or legacies. In ineffective
disinheritance under Article 918 of the same Code, such disinheritance shall also "annul
the institution of heirs", put only "insofar as it may prejudice the person disinherited",

RULES COURT
which last phrase was omitted in the case of preterition. 21 Better stated yet, in
disinheritance the nullity is limited to that portion of the estate of which the disinherited
heirs have been illegally deprived. Manresa's expressive language, in commenting on
the rights of the preterited heirs in the case of preterition on the one hand and legal
disinheritance on the other, runs thus: "Preteridos, adquiren el derecho a
todo; desheredados, solo les corresponde un tercio o dos tercios, 22 el caso.23
5. Petitioner insists that the compulsory heirs ineffectively disinherited are entitled to
receive their legitimes, but that the institution of heir "is not invalidated," although the
inheritance of the heir so instituted is reduced to the extent of said legitimes. 24
This is best answered by a reference to the opinion of Mr. Chief Justice Moran in
the Neri case heretofore cited,viz:
But the theory is advanced that the bequest made by universal title in favor of the
children by the second marriage should be treated as legado and mejora and,
accordingly, it must not be entirely annulled but merely reduced. This theory, if
adopted, will result in a complete abrogation of Articles 814 and 851 of the Civil
Code. If every case of institution of heirs may be made to fall into the concept of
legacies and betterments reducing the bequest accordingly, then the provisions
of Articles 814 and 851 regarding total or partial nullity of the institution, would. be
absolutely meaningless and will never have any application at all. And the
remaining provisions contained in said article concerning the reduction of
inofficious legacies or betterments would be a surplusage because they would be
absorbed by Article 817. Thus, instead of construing, we would be destroying
integral provisions of the Civil Code.
The destructive effect of the theory thus advanced is due mainly to a failure to
distinguish institution of heirs from legacies and betterments, and a general from
a special provision. With reference to article 814, which is the only provision
material to the disposition of this case, it must be observed that the institution of
heirs is therein dealt with as a thing separate and distinct from legacies or
betterments. And they are separate and distinct not only because they are
distinctly and separately treated in said article but because they are in
themselves different. Institution of heirs is a bequest by universal title of property
that is undetermined. Legacy refers to specific property bequeathed by a
particular or special title. ... But again an institution of heirs cannot be taken as a
legacy. 25

RULES COURT
The disputed order, we observe, declares the will in question "a complete nullity". Article
854 of the Civil Code in turn merely nullifies "the institution of heir". Considering,
however, that the will before us solely provides for the institution of petitioner as
universal heir, and nothing more, the result is the same. The entire will is null.
Upon the view we take of this case, the order of November 8, 1963 under review is
hereby affirmed. No costs allowed. So ordered.
Concepcion, C.J., Reyes, J.B.L., Barrera, Dizon, Regala, Makalintal, Bengzon, J.P. and
Zaldivar, JJ., concur.

SUPREME COURT
Manila
SECOND DIVISION
G.R. No. L-39247 June 27, 1975

In the Matter of the Petition to Approve the Will of Leodegaria Julian. FELIX
BALANAY, JR., petitioner,
vs.
HON. ANTONIO M. MARTINEZ, Judge of the Court of First Instance of Davao,
Branch VI; AVELINA B. ANTONIO and DELIA B. LANABAN, respondents.

RULES COURT
Roberto M. Sarenas for petitioner.

Jose B. Guyo for private respondents.
AQUINO, J.:
Felix Balanay, Jr. appealed by certiorari from the order of the Court of First Instance of
Davao dated February 28, 1974, declaring illegal and void the will of his mother,
Leodegaria Julian, converting the testate proceeding into an intestate proceeding and
ordering the issuance of the corresponding notice to creditors (Special Case No. 1808).
The antecedents of the appeal are as follows:
Leodegaria Julian, a native of Sta. Maria, Ilocos Sur, died on February 12, 1973 in
Davao City at the age of sixty-seven. She was survived by her husband, Felix Balanay,
Sr., and by their six legitimate children named Felix Balanay, Jr., Avelina B. Antonio,
Beatriz B. Solamo, Carolina B. Manguiob, Delia B. Lanaban and Emilia B. Pabaonon.
Felix J. Balanay, Jr. filed in the lower court a petition dated February 27, 1973 for the
probate of his mother's notarial will dated September 5, 1970 which is written in English.
In that will Leodegaria Julian declared (a) that she was the owner of the "southern half
of nine conjugal lots (par. II); (b) that she was the absolute owner of two parcels of land
which she inherited from her father (par. III), and (c) that it was her desire that her
properties should not be divided among her heirs during her husband's lifetime and that
their legitimes should be satisfied out of the fruits of her properties (Par. IV).
Then, in paragraph V of the will she stated that after her husband's death (he was
eighty-two years old in 1973) her paraphernal lands and all the conjugal lands (which
she described as "my properties") should be divided and distributed in the manner set
forth in that part of her will. She devised and partitioned the conjugal lands as if they
were all owned by her. She disposed of in the will her husband's one half share of the
conjugal assets. *
Felix Balanay, Sr. and Avelina B. Antonio opposed the probate of the will on the grounds
of lack of testamentary capacity, undue influence, preterition of the husband and alleged
improper partition of the conjugal estate. The oppositors claimed that Felix Balanay, Jr.
should collate certain properties which he had received from the testatrix.

RULES COURT
Felix Balanay, Jr., in his reply to the opposition, attached thereto an affidavit of Felix
Balanay, Sr. dated April 18, 1973 wherein he withdrew his opposition to the probate of
the will and affirmed that he was interested in its probate. On the same date Felix
Balanay, Sr. signed an instrument captioned "Conformation (sic) of Division and
Renunciation of Hereditary Rights" wherein he manifested that out of respect for his
wife's will he "waived and renounced' his hereditary rights in her estate in favor of their
six children. In that same instrument he confirmed the agreement, which he and his wife
had perfected before her death, that their conjugal properties would be partitioned in the
manner indicated in her will.
Avelina B. Antonio, an oppositor, in her rejoinder contended that the affidavit and
"conformation" of Felix Balanay, Sr. were void. The lower court in its order of June 18,
1973 "denied" the opposition and reset for hearing the probate of the will. It gave effect
to the affidavit and conformity of Felix Balanay, Sr. In an order dated August 28, 1973 it
appointed its branch clerk of court as special administrator of the decedent's estate.
Mrs. Antonio moved for the reconsideration of the lower court's order of June 18, 1973
on the grounds (a) that the testatrix illegally claimed that she was the owner of the
southern half of the conjugal lots and (b) that she could not partition the conjugal estate
by allocating portions of the nine lots to her children. Felix Balanay, Jr., through his
counsel, Hermenegildo Cabreros, opposed that motion. The lower court denied it in its
order of October 15, 1973.
In the meanwhile, another lawyer appeared in the case. David O. Montaa, Sr., claiming
to be the lawyer of petitioner Felix Balanay, Jr. (his counsel of record was Atty.
Cabreros), filed a motion dated September 25, 1973 for "leave of court to withdraw
probate of alleged will of Leodegaria Julian and requesting authority to proceed by
intestate estate proceeding." In that motion Montaa claimed to be the lawyer not only
of the petitioner but also of Felix Balanay, Sr., Beatriz B. Solamo, Carolina B. Manguiob
and Emilia B. Pabaonon.
Montaa in his motion assailed the provision of the will which partitioned the conjugal
assets or allegedly effected a compromise of future legitimes. He prayed that the
probate of the will be withdrawn and that the proceeding be converted into an intestate
proceeding. In another motion of the same date he asked that the corresponding notice
to creditors be issued.
Avelina B. Antonio and Delia B. Lanaban, through Atty. Jose B. Guyo, in their comments
dated October 15, 1973 manifested their conformity with the motion for the issuance of

RULES COURT
a notice to creditors. They prayed that the will be declared void for being contrary to law
and that an intestacy be declared.
The lower court, acting on the motions of Atty. Montaa, assumed that the issuance of a
notice to creditors was in order since the parties had agreed on that point. It adopted the
view of Attys. Montaa and Guyo that the will was void. So, in its order of February 28,
1974 it dismissed the petition for the probate, converted the testate proceeding into an
intestate proceeding, ordered the issuance of a notice to creditors and set the intestate
proceeding for hearing on April 1 and 2, 1974. The lower court did not abrogate its prior
orders of June 18 and October 15, 1973. The notice to creditors was issued on April 1,
1974 and published on May 2, 9 and 16 in the Davao Star in spite of petitioner's motion
of April 17, 1974 that its publication be held in abeyance.
Felix Balanay, Jr., through a new counsel, Roberto M. Sarenas, in a verified motion
dated April 15, 1974, asked for the reconsideration of the lower court's order of February
28, 1974 on the ground that Atty. Montaa had no authority to withdraw the petition for
the allowance of the will. Attached to the motion was a copy of a letter dated March 27,
1974 addressed to Atty. Montaa and signed by Felix Balanay, Jr., Beatriz V. Solamo,
Carolina B. Manguiob and Emilia B. Pabaonon, wherein they terminated Montaa's
services and informed him that his withdrawal of the petition for the probate of the will
was without their consent and was contrary to their repeated reminder to him that their
mother's will was "very sacred" to them.
Avelina B. Antonio and Delia B. Lanaban opposed the motion for reconsideration. The
lower court denied the motion in its order of June 29, 1974. It clarified that it declared
the will void on the basis of its own independent assessment of its provisions and not
because of Atty. Montaa's arguments.
The basic issue is whether the probate court erred in passing upon the intrinsic validity
of the will, before ruling on its allowance or formal validity, and in declaring it void.
We are of the opinion that in view of certain unusual provisions of the will, which are of
dubious legality, and because of the motion to withdraw the petition for probate (which
the lower court assumed to have been filed with the petitioner's authorization), the trial
court acted correctly in passing upon the will's intrinsic validity even before its formal
validity had been established. The probate of a will might become an idle ceremony if
on its face it appears to be intrinsically void. Where practical considerations demand
that the intrinsic validity of the will be passed upon, even before it is probated, the court
should meet the issue (Nuguid vs. Nuguid, 64 O.G. 1527, 17 SCRA 449. Compare with

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Sumilang vs. Ramagosa, L-23135, December 26, 1967, 21 SCRA 1369; Cacho vs.
Udan, L-19996, April 30, 1965, 13 SCRA 693).1wph1.t
But the probate court erred in declaring, in its order of February 28, 1974 that the will
was void and in converting the testate proceeding into an intestate proceeding
notwithstanding the fact that in its order of June 18, 1973 , it gave effect to the surviving
husband's conformity to the will and to his renunciation of his hereditary rights which
presumably included his one-half share of the conjugal estate.
The rule is that "the invalidity of one of several dispositions contained in a will does not
result in the invalidity of the other dispositions, unless it is to be presumed that the
testator would not have made such other dispositions if the first invalid disposition had
not been made" (Art. 792, Civil Code). "Where some of the provisions of a will are valid
and others invalid, the valid parts will be upheld if they can be separated from the invalid
without defeating the intention of the testator or interfering with the general testamentary
scheme, or doing injustice to the beneficiaries" (95 C.J.S. 873).
The statement of the testatrix that she owned the "southern half of the conjugal lands is
contrary to law because, although she was a coowner thereof, her share was inchoate
and proindiviso (Art. 143, Civil Code; Madrigal and Paterno vs. Rafferty and
Concepcion, 38 Phil. 414). But That illegal declaration does not nullify the entire will. It
may be disregarded.
The provision of the will that the properties of the testatrix should not be divided among
her heirs during her husband's lifetime but should be kept intact and that the legitimes
should be paid in cash is contrary to article 1080 of the Civil Code which reads:
ART. 1080. Should a person make a partition of his estate by an act inter
vivos, or by will, such partition shall be respected, insofar as it does not
prejudice the legitime of the compulsory heirs.
A parent who, in the interest of his or her family, to keep any agricultural,
industrial, or manufacturing enterprise intact, may avail himself of the right
granted him in this article, by ordering that the legitime of the other
children to whom the property is not assigned be paid in cash. (1056a)
The testatrix in her will made a partition of the entire conjugal estate among her six
children (her husband had renounced his hereditary rights and his one-half conjugal
share). She did not assign the whole estate to one or more children as envisaged in

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article 1080. Hence, she had no right to require that the legitimes be paid in cash. On
the other hand, her estate may remain undivided only for a period of twenty years. So,
the provision that the estate should not be divided during her husband's lifetime would
at most be effective only for twenty years from the date of her death unless there are
compelling reasons for terminating the coownership (Art. 1083, Civil Code).
Felix Balanay, Sr. could validly renounce his hereditary rights and his one-half share of
the conjugal partnership (Arts. 179[1] and 1041, Civil Code) but insofar as said
renunciation partakes of a donation of his hereditary rights and his one-half share in the
conjugal estate (Art. 1060[1] Civil Code), it should be subject to the limitations
prescribed in articles 750 and 752 of the Civil Code. A portion of the estate should be
adjudicated to the widower for his support and maintenance. Or at least his legitime
should be respected.
Subject to the foregoing observations and the rules on collation, the will is intrinsically
valid and the partition therein may be given effect if it does not prejudice the creditors
and impair the legitimes. The distribution and partition would become effective upon the
death of Felix Balanay, Sr. In the meantime, the net income should be equitably divided
among the children and the surviving spouse.
It should be stressed that by reason of the surviving husband's conformity to his wife's
will and his renunciation of his hereditary rights, his one-half conjugal share became a
part of his deceased wife's estate. His conformity had the effect of validating the
partition made in paragraph V of the will without prejudice, of course, to the rights of the
creditors and the legitimes of the compulsory heirs.
Article 793 of the Civil Code provides that "property acquired after the making of a will
shall only pass thereby, as if the testator had it at the time of making the will, should it
expressly appear by the will that such was his intention". Under article 930 of the Civil
Code "the legacy or devise of a thing belonging to another person is void, if the testator
erroneously believed that the thing pertained to him. But if the thing bequeathed, though
not belonging to the testator when he made the will, afterwards becomes his, by
whatever title, the disposition shall take effect."
In the instant case there is no doubt that the testatrix and her husband intended to
partition the conjugal estate in the manner set forth in paragraph V of her will. It is true
that she could dispose of by will only her half of the conjugal estate (Art. 170, Civil
Code) but since the husband, after the dissolution of the conjugal partnership, had

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assented to her testamentary partition of the conjugal estate, such partition has become
valid, assuming that the will may be probated.
The instant case is different from the Nuguid case, supra, where the testatrix instituted
as heir her sister and preterited her parents. Her will was intrinsically void because it
preterited her compulsory heirs in the direct line. Article 854 of the Civil Code provides
that "the preterition or omission of one, some, or all of the compulsory heirs in
the direct line, whether living at the time of the execution of the will or born after the
death of the testator, shall annul the institution of heir; but the devises and legacies,
shall be valid insofar as they are not inofficious." Since the preterition of the parents
annulled the institution of the sister of the testatrix and there were no legacies and
devises, total intestacy resulted (.Art. 960[2], Civil Code).1wph1.t
In the instant case, the preterited heir was the surviving spouse. His preterition did not
produce intestacy. Moreover, he signified his conformity to his wife's will and renounced
his hereditary rights. .
It results that the lower court erred in not proceeding with the probate of the will as
contemplated in its uncancelled order of June 18, 1973. Save in an extreme case where
the will on its face is intrinsically void, it is the probate court's duty to pass first upon the
formal validity of the will. Generally, the probate of the will is mandatory (Art. 838, Civil
Code; Guevara vs. Guevara, 74 Phil. 479 and 98 Phil. 249; Fernandez vs. Dimagiba, L23638, October 12, 1967, 21 SCRA 428).
As aptly stated by Mr. Justice Barredo, "the very existence of a purported testament is in
itself prima facie proof that the supposed testator has willed that his estate should be
distributed in the manner therein provided, and it is incumbent upon the state that, if
legally tenable, such desire be given effect independent of the attitude of the parties
affected thereby" (Resolution, Vda. de Precilla vs. Narciso, L-27200, August 18, 1972,
46 SCRA 538, 565).
To give effect to the intention and wishes of the testatrix is the first and principal law in
the matter of testaments (Dizon-Rivera vs. Dizon, L-24561, June 30, 1970, 33 SCRA
554, 561). Testacy is preferable to intestacy. An interpretation that will render a
testamentary disposition operative takes precedence over a construction that will nullify
a provision of the will (Arts. 788 and 791, Civil Code).
Testacy is favored. Doubts are resolved in favor of testacy especially where the will
evinces an intention on the part of the testator to dispose of practically his whole estate.

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So compelling is the principle that intestacy should be avoided and that the wishes of
the testator should prevail that sometimes the language of the will can be varied for the
purpose of giving it effect (Austria vs. Reyes, L-23079, February 27, 1970, 31 SCRA
754, 762).
As far as is legally possible, the expressed desire of the testator must be followed and
the dispositions of the properties in his will should be upheld (Estorque vs. Estorque, L19573, June 30, 1970, 33 SCRA 540, 546).
The law has a tender regard for the wishes of the testator as expressed in his will
because any disposition therein is better than that which the law can make (Castro vs.
Bustos, L-25913, February 28, 1969, 27 SCRA 327, 341).
Two other errors of the lower court may be noticed. It erred in issuing a notice to
creditors although no executor or regular administrator has been appointed. The record
reveals that it appointed a special administrator. A notice to creditors is not in order if
only a special administrator has been appointed. Section 1, Rule 86 of the Rules of
Court, in providing that "immediately after granting letters of testamentary or of
administration, the court shall issue a notice requiring all persons having money claims
against the decedent to file them in the office of the clerk of said court" clearly
contemplates the appointment of an executor or regular administrator and not that of a
special administrator.
It is the executor or regular administrator who is supposed to oppose the claims against
the estate and to pay such claims when duly allowed (See. 10, Rule 86 and sec. 1, Rule
88, Rules of Court).
We also take this occasion to point out that the probate court's appointment of its
branch clerk of court as special administrator (p. 30, Rollo) is not a salutary practice
because it might engender the suspicion that the probate Judge and his clerk of court
are in cahoots in milking the decedent's estate. Should the branch clerk of court commit
any abuse or devastavit in the course of his administration, the probate Judge might find
it difficult to hold him to a strict accountability. A court employee should devote his
official time to his official duties and should not have as a sideline the administration of a
decedent's estate.
WHEREFORE, the lower court's orders of February 28, and June 29, 1974 are set
aside and its order of June 18, 1973, setting for hearing the petition for probate, is

RULES COURT
affirmed. The lower court is directed to conduct further proceedings in Special Case No.
1808 in consonance with this opinion. Costs, against the private respondents.
SO ORDERED.
Fernando (Chairman), Barredo, Antonio and Concepcion, Jr., JJ., concur.

SUPREME COURT
Manila
FIRST DIVISION
G.R. No. L-62952 October 9, 1985
SOFIA J. NEPOMUCENO, petitioner,
vs.
THE HONORABLE COURT OF APPEALS, RUFINA GOMEZ, OSCAR JUGO ANG,
CARMELITA JUGO,respondents.
GUTIERREZ, JR., J.:

This is a petition for certiorari to set aside that portion of the decision of the respondent
Court of Appeals (now intermediate Appellate Court) dated June 3, 1982, as amended
by the resolution dated August 10, 1982, declaring as null and void the devise in favor of
the petitioner and the resolution dated December 28, 1982 denying petitioner's motion
for reconsideration.

RULES COURT
Martin Jugo died on July 16, 1974 in Malabon, Rizal. He left a last Will and Testament
duly signed by him at the end of the Will on page three and on the left margin of pages
1, 2 and 4 thereof in the presence of Celestina Alejandro, Myrna C. Cortez, and Leandro
Leano, who in turn, affixed their signatures below the attestation clause and on the left
margin of pages 1, 2 and 4 of the Will in the presence of the testator and of each other
and the Notary Public. The Will was acknowledged before the Notary Public Romeo
Escareal by the testator and his three attesting witnesses.
In the said Will, the testator named and appointed herein petitioner Sofia J.
Nepomuceno as his sole and only executor of his estate. It is clearly stated in the Will
that the testator was legally married to a certain Rufina Gomez by whom he had two
legitimate children, Oscar and Carmelita, but since 1952, he had been estranged from
his lawfully wedded wife and had been living with petitioner as husband and wife. In
fact, on December 5, 1952, the testator Martin Jugo and the petitioner herein, Sofia J.
Nepomuceno were married in Victoria, Tarlac before the Justice of the Peace. The
testator devised to his forced heirs, namely, his legal wife Rufina Gomez and his
children Oscar and Carmelita his entire estate and the free portion thereof to herein
petitioner. The Will reads in part:
Art. III. That I have the following legal heirs, namely: my aforementioned
legal wife, Rufina Gomez, and our son, Oscar, and daughter Carmelita,
both surnamed Jugo, whom I declare and admit to be legally and properly
entitled to inherit from me; that while I have been estranged from my
above-named wife for so many years, I cannot deny that I was legally
married to her or that we have been separated up to the present for
reasons and justifications known fully well by them:
Art. IV. That since 1952, 1 have been living, as man and wife with one
Sofia J. Nepomuceno, whom I declare and avow to be entitled to my love
and affection, for all the things which she has done for me, now and in the
past; that while Sofia J. Nepomuceno has with my full knowledge and
consent, did comport and represent myself as her own husband, in truth
and in fact, as well as in the eyes of the law, I could not bind her to me in
the holy bonds of matrimony because of my aforementioned previous
marriage;
On August 21, 1974, the petitioner filed a petition for the probate of the last Will and
Testament of the deceased Martin Jugo in the Court of First Instance of Rizal, Branch
XXXIV, Caloocan City and asked for the issuance to her of letters testamentary.

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On May 13, 1975, the legal wife of the testator, Rufina Gomez and her children filed an
opposition alleging inter alia that the execution of the Will was procured by undue and
improper influence on the part of the petitioner; that at the time of the execution of the
Will, the testator was already very sick and that petitioner having admitted her living in
concubinage with the testator, she is wanting in integrity and thus, letters testamentary
should not be issued to her.
On January 6, 1976, the lower court denied the probate of the Will on the ground that as
the testator admitted in his Will to cohabiting with the petitioner from December 1952
until his death on July 16, 1974, the Will's admission to probate will be an Idle exercise
because on the face of the Will, the invalidity of its intrinsic provisions is evident.
The petitioner appealed to the respondent-appellate court.
On June 2, 1982, the respondent court set aside the decision of the Court of First
Instance of Rizal denying the probate of the will. The respondent court declared the Will
to be valid except that the devise in favor of the petitioner is null and void pursuant to
Article 739 in relation with Article 1028 of the Civil Code of the Philippines. The
dispositive portion of the decision reads:
WHEREFORE, the decision a quo is hereby set aside, the will in question
declared valid except the devise in favor of the appellant which is declared
null and void. The properties so devised are instead passed on in
intestacy to the appellant in equal shares, without pronouncement as to
cost.
On June 15, 1982, oppositors Rufina Gomez and her children filed a "Motion for
Correction of Clerical Error" praying that the word "appellant" in the last sentence of the
dispositive portion of the decision be changed to "appellees" so as to read: "The
properties so devised are instead passed on intestacy to the appellees in equal shares,
without pronouncement as to costs." The motion was granted by the respondent court
on August 10, 1982.
On August 23, 1982, the petitioner filed a motion for reconsideration. This was denied
by the respondent court in a resolution dated December 28, 1982.
The main issue raised by the petitioner is whether or not the respondent court acted in
excess of its jurisdiction when after declaring the last Will and Testament of the

RULES COURT
deceased Martin Jugo validly drawn, it went on to pass upon the intrinsic validity of the
testamentary provision in favor of herein petitioner.
The petitioner submits that the validity of the testamentary provision in her favor cannot
be passed upon and decided in the probate proceedings but in some other proceedings
because the only purpose of the probate of a Will is to establish conclusively as against
everyone that a Will was executed with the formalities required by law and that the
testator has the mental capacity to execute the same. The petitioner further contends
that even if the provisions of paragraph 1 of Article 739 of the Civil Code of the
Philippines were applicable, the declaration of its nullity could only be made by the
proper court in a separate action brought by the legal wife for the specific purpose of
obtaining a declaration of the nullity of the testamentary provision in the Will in favor of
the person with whom the testator was allegedly guilty of adultery or concubinage.
The respondents on the other hand contend that the fact that the last Will and
Testament itself expressly admits indubitably on its face the meretricious relationship
between the testator and the petitioner and the fact that petitioner herself initiated the
presentation of evidence on her alleged ignorance of the true civil status of the testator,
which led private respondents to present contrary evidence, merits the application of the
doctrine enunciated in Nuguid v. Felix Nuguid, et al. (17 SCRA 449) and Felix
Balanay, Jr. v. Hon. Antonio Martinez, et al.(G.R. No. L- 39247, June 27, 1975).
Respondents also submit that the admission of the testator of the illicit relationship
between him and the petitioner put in issue the legality of the devise. We agree with the
respondents.
The respondent court acted within its jurisdiction when after declaring the Will to be
validly drawn, it went on to pass upon the intrinsic validity of the Will and declared the
devise in favor of the petitioner null and void.
The general rule is that in probate proceedings, the court's area of inquiry is limited to
an examination and resolution of the extrinsic validity of the Will. The rule is expressed
thus:
xxx xxx xxx
... It is elementary that a probate decree finally and definitively settles all
questions concerning capacity of the testator and the proper execution
and witnessing of his last Will and testament, irrespective of whether its

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provisions are valid and enforceable or otherwise. (Fernandez v.

Dimagiba,21 SCRA 428)
The petition below being for the probate of a Will, the court's area of
inquiry is limited to the extrinsic validity thereof. The testators
testamentary capacity and the compliance with the formal requisites or
solemnities prescribed by law are the only questions presented for the
resolution of the court. Any inquiry into the intrinsic validity or efficacy of
the provisions of the will or the legality of any devise or legacy is
premature.
xxx xxx xxx
True or not, the alleged sale is no ground for the dismissal of the petition
for probate. Probate is one thing; the validity of the testamentary
provisions is another. The first decides the execution of the document and
the testamentary capacity of the testator; the second relates to descent
and distribution (Sumilang v. Ramagosa, 21 SCRA 1369)
xxx xxx xxx
To establish conclusively as against everyone, and once for all, the facts
that a will was executed with the formalities required by law and that the
testator was in a condition to make a will, is the only purpose of the
proceedings under the new code for the probate of a will. (Sec. 625). The
judgment in such proceedings determines and can determine nothing
more. In them the court has no power to pass upon the validity of any
provisions made in the will. It can not decide, for example, that a certain
legacy is void and another one valid. ... (Castaneda v. Alemany, 3 Phil.
426)
The rule, however, is not inflexible and absolute. Given exceptional circumstances, the
probate court is not powerless to do what the situation constrains it to do and pass upon
certain provisions of the Will.
In Nuguid v. Nuguid (17 SCRA 449) cited by the trial court, the testator instituted the
petitioner as universal heir and completely preterited her surviving forced heirs. A will of
this nature, no matter how valid it may appear extrinsically, would be null and void.

RULES COURT
Separate or latter proceedings to determine the intrinsic validity of the testamentary

provisions would be superfluous.
Even before establishing the formal validity of the will, the Court in Balanay .Jr. v.
Martinez (64 SCRA 452) passed upon the validity of its intrinsic provisions.
Invoking "practical considerations", we stated:
The basic issue is whether the probate court erred in passing upon the
intrinsic validity of the will, before ruling on its allowance or formal validity,
and in declaring it void.
We are of the opinion that in view of certain unusual provisions of the will,
which are of dubious legality, and because of the motion to withdraw the
petition for probate (which the lower court assumed to have been filed with
the petitioner's authorization) the trial court acted correctly in passing upon
the will's intrinsic validity even before its formal validity had been
established. The probate of a will might become an Idle ceremony if on its
face it appears to be intrinsically void. Where practical considerations
demand that the intrinsic validity of the will be passed upon, even before it
is probated, the court should meet the issue (Nuguid v. Nuguid, 64 O.G.
1527, 17 SCRA 449. Compare with Sumilang vs. Ramagosa L-23135,
December 26, 1967, 21 SCRA 1369; Cacho v. Udan L-19996, April 30,
1965, 13 SCRA 693).
There appears to be no more dispute at this time over the extrinsic validity of the Will.
Both parties are agreed that the Will of Martin Jugo was executed with all the formalities
required by law and that the testator had the mental capacity to execute his Will. The
petitioner states that she completely agrees with the respondent court when in resolving
the question of whether or not the probate court correctly denied the probate of Martin
Jugo's last Will and Testament, it ruled:
This being so, the will is declared validly drawn. (Page 4, Decision, Annex
A of Petition.)
On the other hand the respondents pray for the affirmance of the Court of Appeals'
decision in toto.

RULES COURT
The only issue, therefore, is the jurisdiction of the respondent court to declare the
testamentary provision in favor of the petitioner as null and void.
We sustain the respondent court's jurisdiction. As stated in Nuguid v. Nuguid, (supra):
We pause to reflect. If the case were to be remanded for probate of the
will, nothing will be gained. On the contrary, this litigation will be
protracted. And for aught that appears in the record, in the record, in the
event of probate or if the court rejects the will, probability exists that the
case will come up once again before us on the same issue of the intrinsic
validity or nullity of the will. Result, waste of time, effort, expense, plus
added anxiety. These are the practical considerations that induce us to a
belief that we might as well meet head-on the issue of the validity of the
provisions of the will in question. (Section 2, Rule 1, Rules of Court. Case,
et al. v. Jugo, et al., 77 Phil. 517, 522). After all, there exists a justiciable
controversy crying for solution.
We see no useful purpose that would be served if we remand the nullified provision to
the proper court in a separate action for that purpose simply because, in the probate of
a will, the court does not ordinarily look into the intrinsic validity of its provisions.
Article 739 of the Civil Code provides:
The following donations shall be void:
(1) Those made between persons who were guilty of adultery or
concubinage at the time of the donation;
(2) Those made between persons found guilty of the same criminal
offense, in consideration thereof;
(3) Those made to a public officer or his wife, descendants and
ascendants, by reason of his office.
In the case referred to in No. 1, the action for declaration of nullity may be
brought by the spouse of the donor or donee; and the guilt of the donor
and donee may be proved by preponderance of evidence in the same
action.

RULES COURT
Article 1028 of the Civil Code provides:

The prohibitions mentioned in Article 739, concerning donations inter
vivos shall apply to testamentary provisions.
In Article III of the disputed Will, executed on August 15, 1968, or almost six years
before the testator's death on July 16, 1974, Martin Jugo stated that respondent Rufina
Gomez was his legal wife from whom he had been estranged "for so many years." He
also declared that respondents Carmelita Jugo and Oscar Jugo were his legitimate
children. In Article IV, he stated that he had been living as man and wife with the
petitioner since 1952. Testator Jugo declared that the petitioner was entitled to his love
and affection. He stated that Nepomuceno represented Jugo as her own husband but
"in truth and in fact, as well as in the eyes of the law, I could not bind her to me in the
holy bonds of matrimony because of my aforementioned previous marriage.
There is no question from the records about the fact of a prior existing marriage when
Martin Jugo executed his Will. There is also no dispute that the petitioner and Mr. Jugo
lived together in an ostensible marital relationship for 22 years until his death.
It is also a fact that on December 2, 1952, Martin Jugo and Sofia J. Nepomuceno
contracted a marriage before the Justice of the Peace of Victoria, Tarlac. The man was
then 51 years old while the woman was 48. Nepomuceno now contends that she acted
in good faith for 22 years in the belief that she was legally married to the testator.
The records do not sustain a finding of innocence or good faith. As argued by the
private respondents:
First. The last will and testament itself expressly admits indubitably on its
face the meretricious relationship between the testator and petitioner, the
devisee.
Second. Petitioner herself initiated the presentation of evidence on her
alleged ignorance of the true civil status of the testator, which led private
respondents to present contrary evidence.
In short, the parties themselves dueled on the intrinsic validity of the
legacy given in the will to petitioner by the deceased testator at the start of
the proceedings.

RULES COURT
Whether or not petitioner knew that testator Martin Jugo, the man he had
lived with as man and wife, as already married, was an important and
specific issue brought by the parties before the trial court, and passed
upon by the Court of Appeals.
Instead of limiting herself to proving the extrinsic validity of the will, it was
petitioner who opted to present evidence on her alleged good faith in
marrying the testator. (Testimony of Petitioner, TSN of August 1, 1982, pp.
56-57 and pp. 62-64).
Private respondents, naturally, presented evidence that would refute the
testimony of petitioner on the point.
Sebastian Jugo, younger brother of the deceased testator, testified at
length on the meretricious relationship of his brother and petitioner. (TSN
of August 18,1975).
Clearly, the good faith of petitioner was by option of the parties made a
decisive issue right at the inception of the case.
Confronted by the situation, the trial court had to make a ruling on the
question.
When the court a quo held that the testator Martin Jugo and petitioner
'were deemed guilty of adultery or concubinage', it was a finding that
petitioner was not the innocent woman she pretended to be.
xxx xxx xxx
3. If a review of the evidence must be made nonetheless, then private
respondents respectfully offer the following analysis:
FIRST: The secrecy of the marriage of petitioner with the deceased
testator in a town in Tarlac where neither she nor the testator ever resided.
If there was nothing to hide from, why the concealment' ? Of course, it
maybe argued that the marriage of the deceased with private respondent
Rufina Gomez was likewise done in secrecy. But it should be remembered
that Rufina Gomez was already in the family way at that time and it would
seem that the parents of Martin Jugo were not in favor of the marriage so

RULES COURT
much so that an action in court was brought concerning the marriage.

(Testimony of Sebastian Jugo, TSN of August 18, 1975, pp. 29-30)
SECOND: Petitioner was a sweetheart of the deceased testator when they
were still both single. That would be in 1922 as Martin Jugo married
respondent Rufina Gomez on November 29, 1923 (Exh. 3). Petitioner
married the testator only on December 5, 1952. There was a space of
about 30 years in between. During those 30 years, could it be believed
that she did not even wonder why Martin Jugo did not marry her nor
contact her anymore after November, 1923 - facts that should impel her to
ask her groom before she married him in secrecy, especially so when she
was already about 50 years old at the time of marriage.
THIRD: The fact that petitioner broke off from Martin Jugo in 1923 is by
itself conclusive demonstration that she new that the man she had openly
lived for 22 years as man and wife was a married man with already two
children.
FOURTH: Having admitted that she knew the children of respondent
Rufina Gomez, is it possible that she would not have asked Martin Jugo
whether or not they were his illegitimate or legitimate children and by
whom? That is un-Filipino.
FIFTH: Having often gone to Pasig to the residence of the parents of the
deceased testator, is it possible that she would not have known that the
mother of private respondent Oscar Jugo and Carmelita Jugo was
respondent Rufina Gomez, considering that the houses of the parents of
Martin Jugo (where he had lived for many years) and that of respondent
Rufina Gomez were just a few meters away?
Such pretentions of petitioner Sofia Nepomuceno are unbelievable. They
are, to say the least, inherently improbable, for they are against the
experience in common life and the ordinary instincts and promptings of
human nature that a woman would not bother at all to ask the man she
was going to marry whether or not he was already married to another,
knowing that her groom had children. It would be a story that would strain
human credulity to the limit if petitioner did not know that Martin Jugo was
already a married man in view of the irrefutable fact that it was precisely

RULES COURT
his marriage to respondent Rufina Gomez that led petitioner to break off
with the deceased during their younger years.
Moreover, the prohibition in Article 739 of the Civil Code is against the making of a
donation between persons who are living in adultery or concubinage. It is
the donation which becomes void. The giver cannot give even assuming that the
recipient may receive. The very wordings of the Will invalidate the legacy because the
testator admitted he was disposing the properties to a person with whom he had been
living in concubinage.
WHEREFORE, the petition is DISMISSED for lack of merit. The decision of the Court of
Appeals, now Intermediate Appellate Court, is AFFIRMED. No costs.
SO ORDERED.
Teehankee (Chairman), Melencio-Herrera, Plana, Relova, De la Fuente and Patajo, JJ.,
concur.

SUPREME COURT
Manila
EN BANC
G.R. No. L-16763 December 22, 1921
PASCUAL COSO, petitioner-appellant,
vs.
FERMINA FERNANDEZ DEZA, ET AL., objectors-appellees.
Eduardo Gutierrez Repide & Felix Socias for appellant.
Jose Varela Calderon & Benito Jimenez Zoboli for appellees.

RULES COURT
OSTRAND, J.:
This is an appeal from a decision of the Court of First Instance of Manila setting aside a
will on the ground of undue influence alleged to have been exerted over the mind of a
testator by one Rosario Lopez. The will gives thetercio de libre disposicion to an
illegitimate son had by the testator with said Rosario Lopez, and also provides for the
payment to her of nineteen hundred Spanish duros by way the reimbursement for
expenses incurred by her in taking care of the testator in Barcelona during the years
1909 to 1916, when he is alleged to have suffered from a severe illness.
The evidence shows that the testator, a married man and resident of the Philippine
Islands, became acquainted with Rosario Lopez in Spain in 1898 and that he had illicit
returns with her for many years thereafter. After his return to the Philippines she
followed him, arriving in Manila in February, 1918, and remained in close
communication with him until his death in February, 1919. There is no doubt that she
exercised some influence over him and the only question for our determination is
whether this influence was of such a character as to vitiate the will.
The English and American rule in regard to undue influence is thus stated in 40 Cyc.,
1144-1149.
Mere general or reasonable influence over a testator is not sufficient to invalidate
a will; to have that effect the influence must be "undue." The rule as to what
constitutes "undue influence" has been variously stated, but the substance of the
different statements is that, to be sufficient to avoid a will, the influence exerted
must be of a kind that so overpowers and subjugates the mind of the testator as
to destroy his free agency and make his express the will of another, rather than
his own.1awphil.net
. . . such influence must be actually exerted on the mind of the testator in regard
to the execution of the will in question, either at time of the execution of the will,
or so near thereto as to be still operative, with the object of procuring a will in
favor of particular parties, and it must result in the making of testamentary
dispositions which the testator would not otherwise have made. . . .
. . . and while the same amount of influence may become "undue" when
exercised by one occupying an improper and adulterous relation to testator, the
mere fact that some influence is exercised by a person sustaining that relation

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does not invalidate a will, unless it is further shown that the influence destroys
the testator's free agency.
The burden is upon the parties challenging the will to show that undue influence, in the
sense above expressed, existed at the time of its execution and we do not think that this
burden has been carried in the present case. While it is shown that the testator
entertained strong affections for Rosario Lopez, it does not appear that her influence so
overpowered and subjugated his mind as to "destroy his free agency and make him
express the will of another rather than his own." He was an intelligent man, a lawyer by
profession, appears to have known his own mind, and may well have been actuated
only by a legitimate sense of duty in making provisions for the welfare of his illegitimate
son and by a proper feeling of gratitude in repaying Rosario Lopez for the sacrifices she
had made for him. Mere affection, even if illegitimate, is not undue influence and does
not invalidate a will. No imposition or fraud has been shown in the present case.
Influence gained by kindness and affection will not be regarded as `undue,' if no
imposition or fraud be practiced, even though it induces the testator to make an
unequal and unjust disposition of his property in favor of those who have
contributed to his comfort and ministered to his wants, if such disposition is
voluntarily made. (Mackall vs. Mackall, 135 U. S., 1677.)
It may be further observed that under the Civil Law the right of a person with legal heirs
to dispose of his property by will is limited to only a portion of his estate, and that under
the law in force in these Islands before the enactment of the Code of Civil Procedure,
the only outside influences affecting the validity of a will were duress, deceit, and fraud.
The present doctrine of undue influence originated in a legal system where the right of
the testator to dispose of his property by will was nearly unlimited. Manifestly, greater
safeguards in regard to execution of wills may be warranted when the right to so
dispose of property is unlimited than when it is restricted to the extent it is in this
jurisdiction. There is, therefore, certainly no reason for giving the doctrine of undue
influence a wider scope here than it enjoys in the United States.
For the reasons stated, the decision of the lower court disallowing the will of Federico
Gimenez Zoboli is hereby reversed and it is ordered that the will be admitted to probate.
No costs will be allowed. So ordered.
Johnson, Street, Malcolm, Avancea, Villamor, Johns and Romualdez, JJ., concur.
Article 839-when will shall be disallowed

RULES COURT

SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 106720 September 15, 1994

SPOUSES ROBERTO AND THELMA AJERO, petitioners,
vs.
THE COURT OF APPEALS AND CLEMENTE SAND, respondents.
Miguel D. Larida for petitioners.
Montilla Law Office for private respondent.
PUNO, J.:
This is an appeal by certiorari from the Decision of the Court of
Appeals 1 in CA-G.R. CV No. 22840, dated March 30, 1992, the dispositive portion of
which reads;
PREMISES CONSIDERED, the questioned decision of November 19,
1988 of the trial court is hereby REVERSED and SET ASIDE, and the
petition for probate is hereby DISMISSED. No costs.
The earlier Decision was rendered by the RTC of Quezon City, Branch 94, 2 in
Sp. Proc. No. Q-37171, and the instrument submitted for probate is the
holographic will of the late Annie Sand, who died on November 25, 1982.
In the will, decedent named as devisees, the following: petitioners Roberto and Thelma
Ajero, private respondent Clemente Sand, Meriam S. Arong, Leah Sand, Lilia Sand,
Edgar Sand, Fe Sand, Lisa S. Sand, and Dr. Jose Ajero, Sr., and their children.

RULES COURT
On January 20, 1983, petitioners instituted Sp. Proc. No. Q-37171, for allowance of
decedent's holographic will. They alleged that at the time of its execution, she was of
sound and disposing mind, not acting under duress, fraud or undue influence, and was
in every respect capacitated to dispose of her estate by will.
Private respondent opposed the petition on the grounds that: neither the testament's
body nor the signature therein was in decedent's handwriting; it contained alterations
and corrections which were not duly signed by decedent; and, the will was procured by
petitioners through improper pressure and undue influence. The petition was likewise
opposed by Dr. Jose Ajero. He contested the disposition in the will of a house and lot
located in Cabadbaran, Agusan Del Norte. He claimed that said property could not be
conveyed by decedent in its entirety, as she was not its sole owner.
Notwithstanding the oppositions, the trial court admitted the decedent's holographic will
to probate. It found, inter alia:
Considering then that the probate proceedings herein must decide only
the question of identity of the will, its due execution and the testamentary
capacity of the testatrix, this probate court finds no reason at all for the
disallowance of the will for its failure to comply with the formalities
prescribed by law nor for lack of testamentary capacity of the testatrix.
For one, no evidence was presented to show that the will in question is
different from the will actually executed by the testatrix. The only
objections raised by the oppositors . . . are that the will was not written in
the handwriting of the testatrix which properly refers to the question of its
due execution, and not to the question of identity of will. No other will was
alleged to have been executed by the testatrix other than the will herein
presented. Hence, in the light of the evidence adduced, the identity of the
will presented for probate must be accepted, i.e., the will submitted in
Court must be deemed to be the will actually executed by the testatrix.
xxx xxx xxx
While the fact that it was entirely written, dated and signed in the
handwriting of the testatrix has been disputed, the petitioners, however,
have satisfactorily shown in Court that the holographic will in question was
indeed written entirely, dated and signed in the handwriting of the testatrix.
Three (3) witnesses who have convincingly shown knowledge of the

RULES COURT
handwriting of the testatrix have been presented and have explicitly and
categorically identified the handwriting with which the holographic will in
question was written to be the genuine handwriting and signature of the
testatrix. Given then the aforesaid evidence, the requirement of the law
that the holographic will be entirely written, dated and signed in the
handwriting of the testatrix has been complied with.
xxx xxx xxx
As to the question of the testamentary capacity of the testratix, (private
respondent) Clemente Sand himself has testified in Court that the testatrix
was completely in her sound mind when he visited her during her birthday
celebration in 1981, at or around which time the holographic will in
question was executed by the testatrix. To be of sound mind, it is sufficient
that the testatrix, at the time of making the will, knew the value of the
estate to be disposed of, the proper object of her bounty, and
thecharacter of the testamentary act . . . The will itself shows that the
testatrix even had detailed knowledge of the nature of her estate. She
even identified the lot number and square meters of the lots she had
conveyed by will. The objects of her bounty were likewise identified
explicitly. And considering that she had even written a nursing book which
contained the law and jurisprudence on will and succession, there is more
than sufficient showing that she knows the character of the testamentary
act.
In this wise, the question of identity of the will, its due execution and the
testamentary capacity of the testatrix has to be resolved in favor of the
allowance of probate of the will submitted herein.
Likewise, no evidence was presented to show sufficient reason for the
disallowance of herein holographic will. While it was alleged that the said
will was procured by undue and improper pressure and influence on the
part of the beneficiary or of some other person, the evidence adduced
have not shown any instance where improper pressure or influence was
exerted on the testatrix. (Private respondent) Clemente Sand has testified
that the testatrix was still alert at the time of the execution of the will, i.e.,
at or around the time of her birth anniversary celebration in 1981. It was
also established that she is a very intelligent person and has a mind of her
own. Her independence of character and to some extent, her sense of

RULES COURT
superiority, which has been testified to in Court, all show the unlikelihood
of her being unduly influenced or improperly pressured to make the
aforesaid will. It must be noted that the undue influence or improper
pressure in question herein only refer to the making of a will and not as to
the specific testamentary provisions therein which is the proper subject of
another proceeding. Hence, under the circumstances, this Court cannot
find convincing reason for the disallowance of the will herein.
Considering then that it is a well-established doctrine in the law on
succession that in case of doubt, testate succession should be preferred
over intestate succession, and the fact that no convincing grounds were
presented and proven for the disallowance of the holographic will of the
late Annie Sand, the aforesaid will submitted herein must be admitted to
probate. 3 (Citations omitted.)
On appeal, said Decision was reversed, and the petition for probate of decedent's will
was dismissed. The Court of Appeals found that, "the holographic will fails to meet the
requirements for its validity." 4 It held that the decedent did not comply with Articles 813
and 814 of the New Civil Code, which read, as follows:
Art. 813: When a number of dispositions appearing in a holographic will
are signed without being dated, and the last disposition has a signature
and date, such date validates the dispositions preceding it, whatever be
the time of prior dispositions.
Art. 814: In case of insertion, cancellation, erasure or alteration in a
holographic will, the testator must authenticate the same by his full
signature.
It alluded to certain dispositions in the will which were either unsigned and undated, or
signed but not dated. It also found that the erasures, alterations and cancellations made
thereon had not been authenticated by decedent.
Thus, this appeal which is impressed with merit.
Section 9, Rule 76 of the Rules of Court provides that will shall be disallowed in any of
the following cases:
(a) If not executed and attested as required by law;

RULES COURT
(b) If the testator was insane, or otherwise mentally incapable to make a

will, at the time of its execution;
(c) If it was executed under duress, or the influence of fear, or threats;
(d) If it was procured by undue and improper pressure and influence, on
the part of the beneficiary, or of some other person for his benefit;
(e) If the signature of the testator was procured by fraud or trick, and he
did not intend that the instrument should be his will at the time of fixing his
signature thereto.
In the same vein, Article 839 of the New Civil Code reads:
Art. 839: The will shall be disallowed in any of the following cases;
(1) If the formalities required by law have not been complied
with;
(2) If the testator was insane, or otherwise mentally
incapable of making a will, at the time of its execution;
(3) If it was executed through force or under duress, or the
influence of fear, or threats;
(4) If it was procured by undue and improper pressure and
influence, on the part of the beneficiary or of some other
person;
(5) If the signature of the testator was procured by fraud;
(6) If the testator acted by mistake or did not intend that the
instrument he signed should be his will at the time of affixing
his signature thereto.
These lists are exclusive; no other grounds can serve to disallow a will. 5 Thus, in a
petition to admit a holographic will to probate, the only issues to be resolved are: (1)
whether the instrument submitted is, indeed, the decedent's last will and testament; (2)
whether said will was executed in accordance with the formalities prescribed by law; (3)

RULES COURT
whether the decedent had the necessary testamentary capacity at the time the will was
executed; and, (4) whether the execution of the will and its signing were the voluntary
acts of the decedent. 6
In the case at bench, respondent court held that the holographic will of Anne Sand was
not executed in accordance with the formalities prescribed by law. It held that Articles
813 and 814 of the New Civil Code, ante, were not complied with, hence, it disallowed
the probate of said will. This is erroneous.
We reiterate what we held in Abangan vs. Abangan, 40 Phil. 476, 479 (1919), that:
The object of the solemnities surrounding the execution of wills is to close
the door against bad faith and fraud, to avoid substitution of wills and
testaments and to guaranty their truth and authenticity. Therefore, the laws
on this subject should be interpreted in such a way as to attain these
primordial ends. But, on the other hand, also one must not lose sight of
the fact that it is not the object of the law to restrain and curtail the
exercise of the right to make a will. So when an interpretation already
given assures such ends, any other interpretation whatsoever, that adds
nothing but demands more requisites entirely unnecessary, useless and
frustrative of the testator's last will, must be disregarded.
For purposes of probating non-holographic wills, these formal solemnities include the
subscription, attestation, and acknowledgment requirements under Articles 805 and 806
of the New Civil Code.
In the case of holographic wills, on the other hand, what assures authenticity is the
requirement that they be totally autographic or handwritten by the testator himself, 7 as
provided under Article 810 of the New Civil Code, thus:
A person may execute a holographic will which must be entirely written,
dated, and signed by the hand of the testator himself. It is subject to no
other form, and may be made in or out of the Philippines, and need not be
witnessed. (Emphasis supplied.)
Failure to strictly observe other formalities will not result in the disallowance of a
holographic will that is unquestionably handwritten by the testator.

RULES COURT
A reading of Article 813 of the New Civil Code shows that its requirement affects the
validity of the dispositions contained in the holographic will, but not its probate. If the
testator fails to sign and date some of the dispositions, the result is that these
dispositions cannot be effectuated. Such failure, however, does not render the whole
testament void.
Likewise, a holographic will can still be admitted to probate, notwithstanding noncompliance with the provisions of Article 814. In the case of Kalaw vs. Relova 132
SCRA 237 242 (1984), this Court held:
Ordinarily, when a number of erasures, corrections, and interlineations
made by the testator in a holographic Will have not been noted under his
signature, . . . the Will is not thereby invalidated as a whole, but at most
only as respects the particular words erased, corrected or interlined.
Manresa gave an identical commentary when he said "la omission de la
salvedad no anula el testamento, segun la regla de jurisprudencia
establecida en la sentencia de 4 de Abril de 1985." 8 (Citations omitted.)
Thus, unless the unauthenticated alterations, cancellations or insertions were made on
the date of the holographic will or on testator's signature, 9 their presence does not
invalidate the will itself. 10 The lack of authentication will only result in disallowance of
such changes.
It is also proper to note that the requirements of authentication of changes and signing
and dating of dispositions appear in provisions (Articles 813 and 814) separate from that
which provides for the necessary conditions for the validity of the holographic will
(Article 810). The distinction can be traced to Articles 678 and 688 of the Spanish Civil
Code, from which the present provisions covering holographic wills are taken. They
read as follows:
Art. 678: A will is called holographic when the testator writes it himself in
the form and with the requisites required in Article 688.
Art. 688: Holographic wills may be executed only by persons of full age.
In order that the will be valid it must be drawn on stamped paper
corresponding to the year of its execution, written in its entirety by the
testator and signed by him, and must contain a statement of the year,
month and day of its execution.

RULES COURT
If it should contain any erased, corrected, or interlined words, the testator

must identify them over his signature.
Foreigners may execute holographic wills in their own language.
This separation and distinction adds support to the interpretation that only the
requirements of Article 810 of the New Civil Code and not those found in Articles 813
and 814 of the same Code are essential to the probate of a holographic will.
The Court of Appeals further held that decedent Annie Sand could not validly dispose of
the house and lot located in Cabadbaran, Agusan del Norte, in its entirety. This is
correct and must be affirmed.
As a general rule, courts in probate proceedings are limited to pass only upon the
extrinsic validity of the will sought to be probated. However, in exceptional instances,
courts are not powerless to do what the situation constrains them to do, and pass upon
certain provisions of the will. 11 In the case at bench, decedent herself indubitably stated
in her holographic will that the Cabadbaran property is in the name of her late father,
John H. Sand (which led oppositor Dr. Jose Ajero to question her conveyance of the
same in its entirety). Thus, as correctly held by respondent court, she cannot validly
dispose of the whole property, which she shares with her father's other heirs.
IN VIEW WHEREOF, the instant petition is GRANTED. The Decision of the Court of
Appeals in CA-G.R. CV No. 22840, dated March 30, 1992, is REVERSED and SET
ASIDE, except with respect to the invalidity of the disposition of the entire house and lot
in Cabadbaran, Agusan del Norte. The Decision of the Regional Trial Court of Quezon
City, Branch 94 in Sp. Proc. No. Q-37171, dated November 19, 1988, admitting to
probate the holographic will of decedent Annie Sand, is hereby REINSTATED, with the
above qualification as regards the Cabadbaran property. No costs.
SO ORDERED.
Narvasa, C.J., Padilla, Regalado and Mendoza, JJ., concur.

RULES COURT

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****NOTE ABOUT THIS CASE: (IN FULL SPANISH ORIGINAL TEXT)

Republic of the Philippines

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xxx xxx xxx

(Signed) ELEUTERIO Pilapil Testator ;

(Signed) WENCESLAO Pilapil Witness

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. . . consists of two items; CONTAINS

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December 19, 1932

In re Estate of the deceased Gregorio Tolentino. ADELAIDA

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Republic of the Philippines

September 22, 1938

ANTILANO G. MERCADO, petitioner,

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4. The judgment or order of a court, when declared by this code to be conclusive.

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Se infiere de los preceptos legales transcritos que todo acusado en causa

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Cainta, Rizal. Como consecuencia de las denuncias que contra el se

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Pampanga, which information was dismissed, after due investigation, because of

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Republic of the Philippines

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A mi hija natural reconocida, Rosario Guevara, veintiun (21) hectareas, sesenta y

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Sec. 625. Allowance Necessary, and Conclusive as to Execution. No will shall

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Section 1. Extrajudicial settlement by agreement between heirs. If the

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