ARTICLE 830

MALOTO vs. CA

G.R. No. 76464 February 29, 1988

TESTATE ESTATE OF THE LATE ADRIANA MALOTO, ALDINA MALOTO CASIANO,

CONSTANCIO MALOTO, PURIFICACION MIRAFLOR, ROMAN CATHOLIC CHURCH OF MOLO,
AND ASILO DE MOLO, petitioners,
vs.
COURT OF APPEALS, PANFILO MALOTO AND FELINO MALOTO, respondents.

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

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

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

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

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

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

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

(1) By implication of law; or

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

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

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

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

The respondent appellate court in assessing the evidence presented by the private respondents as
oppositors in the trial court, concluded that the testimony of the two witnesses who testified in favor
of the will's revocation appear "inconclusive." We share the same view. Nowhere in the records
before us does it appear that the two witnesses, Guadalupe Vda. de Corral and Eladio Itchon, both
illiterates, were unequivocably positive that the document burned was indeed Adriana's will.
Guadalupe, we think, believed that the papers she destroyed was the will only because, according to
her, Adriana told her so. Eladio, on the other hand, obtained his information that the burned
document was the will because Guadalupe told him so, thus, his testimony on this point is double
hearsay.
At this juncture, we reiterate that "(it) is an important matter of public interest that a purported win is
not denied legalization on dubious grounds. Otherwise, the very institution of testamentary
succession will be shaken to its very foundations ...."4

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

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

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

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

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

This Decision is IMMEDIATELY EXECUTORY.

SO ORDERED.
Maloto v. Court of Appeals

G.R. No. 76464 February 29, 1988

Facts:

1. Petitioners and respondents are the neices/nephews or Adriana Maloto who died in 1963. The four
heirs believed that the deceased did not leave a will, hesnce they filed an intestate proceeding.
However, the parties executed an extrajudicial settlement of the estate dividing it into four equal parts.

2. In 1967, Atty. Sulpicio Palma, ex-associate of the deceased's counsel allegedly discovered her last will
which was purportedly dated 1940, inside a cabinet. Hence the annulment of the proceedings and a
probate petition was filed by the devisees and legatees. The said will was allegedly burned by the
househelp under the instruction of the deceased

3. The lower court denied the probate on the ground that the animus revocandi in the burning of the
will was sufficiently proven.

Issue: Whether or not there was valid revocation of the will

RULING: No, there was no revocation. For a valid revocation to occur, the 'corpus' and 'animus' must
concur, one without the other will not produce a valid revocation. The physical act of destruction of a
will must come with an intention to revoke (animus revocandi). In this case, there's paucity of evidence
to comply with the said requirement. The paper burned was not established to be the will and the
burning though done under her express direction was not done in her presence.

Under Art. 830, the physical act of destruction, in this case the burning of the will, does not constitute
an effective revocation, unless it is coupled with animus revocandi on the part of the testator. Since
animus is a state of mind, it has to be accompanied by an overt physical act of burning, tearing,
obliterating or cancelling done by the testator himself or by another under his express direction and
presence.
GAGO VS. MAMUYAC

G.R. No. L-26317 January 29, 1927

Estate of Miguel Mamuyac, deceased.

FRANCISCO GAGO, petitioner-appellant,
vs.
CORNELIO MAMUYAC, AMBROSIO LARIOSA,

The purpose of this action was to obtain the probation of a last will and testament of Miguel
Mamuyac, who died on the 2d day of January, 1922, in the municipality of Agoo of the Province of
La Union. It appears from the record that on or about the 27th day of July, 1918, the said Miguel
Mamuyac executed a last will and testament (Exhibit A). In the month of January, 1922, the said
Francisco Gago presented a petition in the Court of First Instance of the Province of La Union for the
probation of that will. The probation of the same was opposed by Cornelio Mamuyac, Ambrosio
Lariosa, Feliciana Bauzon, and Catalina Mamuyac (civil cause No. 1144, Province of La Union).
After hearing all of the parties the petition for the probation of said will was denied by the Honorable
C. M. Villareal on the 2d day of November, 1923, upon the ground that the deceased had on the
16th day of April, 1919, executed a new will and testament.

On the 21st day of February, 1925, the present action was commenced. Its purpose was to secure
the probation of the said will of the 16th day of April, 1919 (Exhibit 1). To said petition Cornelio
Mamuyac, Ambrosio Lariosa, Feliciana Bauzon, and Catalina Mamuyac presented their oppositions,
alleging (a) that the said will is a copy of the second will and testament executed by the said Miguel
Mamuyac; (b) that the same had been cancelled and revoked during the lifetime of Miguel Mamuyac
and (c) that the said will was not the last will and testament of the deceased Miguel Mamuyac.

Upon the issue thus presented, the Honorable Anastacio R. Teodoro, judge, after hearing the
respective parties, denied the probation of said will of April 16, 1919, upon the ground that the same
had been cancelled and revoked in the year 1920. Judge Teodoro, after examining the evidence
adduced, found that the following facts had been satisfactorily proved:

That Exhibit A is a mere carbon of its original which remained in the possession of the
deceased testator Miguel Mamuyac, who revoked it before his death as per testimony of
witness Jose Fenoy, who typed the will of the testator on April 16, 1919, and Carlos Bejar,
who saw on December 30, 1920, the original Exhibit A (will of 1919) actually cancelled by the
testator Miguel Mamuyac, who assured Carlos Bejar that inasmuch as he had sold him a
house and the land where the house was built, he had to cancel it (the will of 1919),
executing thereby a new testament. Narcisa Gago in a way corroborates the testimony of
Jose Fenoy, admitting that the will executed by the deceased (Miguel Mamuyac) in 1919 was
found in the possession of father Miguel Mamuyac. The opponents have successfully
established the fact that father Miguel Mamuyac had executed in 1920 another will. The
same Narcisa Gago, the sister of the deceased, who was living in the house with him, when
cross-examined by attorney for the opponents, testified that the original Exhibit A could not
be found. For the foregoing consideration and for the reason that the original of Exhibit A has
been cancelled by the deceased father Miguel Mamuyac, the court disallows the probate of
Exhibit A for the applicant." From that order the petitioner appealed.

The appellant contends that the lower court committed an error in not finding from the evidence that
the will in question had been executed with all the formalities required by the law; that the same had
been revoked and cancelled in 1920 before his death; that the said will was a mere carbon copy and
that the oppositors were not estopped from alleging that fact.

With reference to the said cancellation, it may be stated that there is positive proof, not denied,
which was accepted by the lower court, that will in question had been cancelled in 1920. The law
does not require any evidence of the revocation or cancellation of a will to be preserved. It therefore
becomes difficult at times to prove the revocation or cancellation of wills. The fact that such
cancellation or revocation has taken place must either remain unproved of be inferred from evidence
showing that after due search the original will cannot be found. Where a will which cannot be found
is shown to have been in the possession of the testator, when last seen, the presumption is, in the
absence of other competent evidence, that the same was cancelled or destroyed. The same
presumption arises where it is shown that the testator had ready access to the will and it cannot be
found after his death. It will not be presumed that such will has been destroyed by any other person
without the knowledge or authority of the testator. The force of the presumption of cancellation or
revocation by the testator, while varying greatly, being weak or strong according to the
circumstances, is never conclusive, but may be overcome by proof that the will was not destroyed by
the testator with intent to revoke it.

In view of the fat that the original will of 1919 could not be found after the death of the testator Miguel
Mamuyac and in view of the positive proof that the same had been cancelled, we are forced to the
conclusion that the conclusions of the lower court are in accordance with the weight of the evidence.
In a proceeding to probate a will the burden of proofs is upon the proponent clearly to establish not
only its execution but its existence. Having proved its execution by the proponents, the burden is on
the contestant to show that it has been revoked. In a great majority of instances in which wills are
destroyed for the purpose of revoking them there is no witness to the act of cancellation or
destruction and all evidence of its cancellation perishes with the testator. Copies of wills should be
admitted by the courts with great caution. When it is proven, however, by proper testimony that a will
was executed in duplicate and each copy was executed with all the formalities and requirements of
the law, then the duplicate may be admitted in evidence when it is made to appear that the original
has been lost and was not cancelled or destroyed by the testator. (Borromeo vs. Casquijo, G.R. No.
L-26063.)1

After a careful examination of the entire record, we are fully persuaded that the will presented for
probate had been cancelled by the testator in 1920. Therefore the judgment appealed from is hereby
affirmed. And without any finding as to costs, it is so ordered.
Gago vs. Mamuyac
G.R. No. L-26317 January 29, 1927
Johnson, J. (Ponente)

Facts:
1. Previously, Francisco Gago filed a petition for the probate of a will of Miguel Mamuyac
executed on July 27, 1918. The oppositors alleged that the said will was already annulled and
revoked. It appeared that on April 16, 1919, the deceased executed another will. The lower
court denied the probate of the first will on the ground of the existence of the second will.

2. Another petition was filed to seek the probate of the second will. The oppositors alleged that
the second will presented was merely a copy. According to the witnesses, the said will was
allegedly revoked as per the testimony of Jose Tenoy, one of the witnesses who typed the
document. Another witness testified that on December 1920 the original will was actually
cancelled by the testator.

3. The lower court denied the probate and held that the same has been annulled and revoked.

Issue: Whether or not there was a valid revocation of the will

RULING: Yes. The will was already cancelled in 1920. This was inferred when after due search,
the original will cannot be found. When the will which cannot be found in shown to be in the
possession of the testator when last seen, the presumption is that in the absence of other
competent evidence, the same was deemed cancelled or destroyed. The same presumption
applies when it is shown that the testator has ready access to the will and it can no longer be
found after his death.
ARTICLE 832

MOLO vs. MOLO G.R. No. L-2538 September 21, 1951

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

This is an appeal from an order of the Court of First Instance of Rizal admitting to probate the last
will and testament of the deceased Mariano Molo y Legaspi executed on August 17, 1918. The
oppositors-appellants brought the case on appeal to this Court for the reason that the value of the
properties involved exceeds P50,000.

Mariano Molo y Legaspi died on January 24, 1941, in the municipality of Pasay, province of Rizal,
without leaving any forced heir either in the descending or ascending line. He was survived,
however, by his wife, the herein petitioner Juana Juan Vda. de Molo, and by his nieces and nephew,
the oppositors-appellants, Luz Gliceria and Cornelio, all surnamed Molo, who were the legitimate
children of Candido Molo y Legaspi, deceased brother of the testator. Mariano Molo y Legaspi left
two wills, one executed on August 17, 1918, (Exhibit A) and another executed on June 20, 1939.
(Exhibit I). The later will executed in 1918.

On February 7, 1941, Juana Juan Vda. de Molo, filed in the Court of First Instance of Rizal a
petition, which was docketed as special proceeding No. 8022 seeking the probate of the will
executed by the deceased on June 20, 1939. There being no opposition, the will was probated.
However, upon petition filed by the herein oppositors, the order of the court admitting the will to
probate was set aside and the case was reopened. After hearing, at which both parties presented
their evidence, the court rendered decision denying the probate of said will on the ground that the
petitioner failed to prove that the same was executed in accordance with law.

In view of the disallowance of the will executed on June 20, 1939, the widow on February 24, 1944,
filed another petition for the probate of the will executed by the deceased on August 17, 1918, which
was docketed as special proceeding No. 56, in the same court. Again, the same oppositors filed an
opposition to the petition based on three grounds: (1) that petitioner is now estopped from seeking
the probate of the will of 1918; (2) that said will has not been executed in the manner required by law
and (3) that the will has been subsequently revoked. But before the second petition could be heard,
the battle for liberation came and the records of the case were destroyed. Consequently, a petition
for reconstitution was filed, but the same was found to be impossible because neither petitioner nor
oppositors could produce the copies required for its reconstitution. As a result, petitioner filed a new
petition on September 14, 1946, similar to the one destroyed, to which the oppositors filed an
opposition based on the same grounds as those contained in their former opposition. Then, the case
was set for trial, and on May 28, 1948, the court issued an order admitting the will to probate already
stated in the early part of this decision. From this order the oppositors appealed assigning six errors,
to wit.

I. The probate court erred in not holding that the present petitioner voluntarily and
deliberately frustrated the probate of the will dated June 20, 1939, in special proceeding No.
8022, in order to enable her to obtain the probate of another alleged will of Molo dated 191.

II. The court a quo erred in not holding that the petitioner is now estopped from seeking the
probate of Molo's alleged will of 1918.
 III. The lower court erred in not holding that petitioner herein has come to court with "unclean
hands" and as such is not entitled to relief.

IV. The probate court erred in not holding that Molo's alleged will of August 17, 1918 was not
executed in the manner required by law.

V. The probate court erred in not holding that the alleged will of 1918 was deliberately
revoked by Molo himself.

VI. The lower court erred in not holding that Molo's will of 1918 was subsequently revoked by
the decedent's will of 1939.

In their first assignment of error, counsel for oppositors contend that the probate court erred in not
holding that the petitioner voluntarily and deliberately frustrated the probate of the will dated June 20,
1939, in order to enable her to obtain the probate of the will executed by the deceased on August
17, 1918, pointing out certain facts and circumstances with their opinion indicate that petitioner
connived with the witness Canuto Perez in an effort to defeat and frustrate the probate of the 1939
will because of her knowledge that said will intrinsically defective in that "the one and only
testamentory disposition thereof was a "disposicion captatoria". These circumstances, counsel for
the appellants contend, constitute a series of steps deliberately taken by petitioner with a view to
insuring the realization of her plan of securing the probate of the 1918 will which she believed would
better safeguard her right to inherit from the decease.

These imputations of fraud and bad faith allegedly committed in connection with special proceedings
No. 8022, now closed and terminated, are vigorously met by counsel for petitioner who contends
that to raise them in these proceedings which are entirely new and distinct and completely
independent from the other is improper and unfair as they find no support whatsoever in any
evidence submitted by the parties in this case. They are merely based on the presumptions and
conjectures not supported by any proof. For this reason, counsel, contends, the lower court was
justified in disregarding them and in passing them sub silentio in its decision.

A careful examination of the evidence available in this case seems to justify this contention. There is
indeed no evidence which may justify the insinuation that petitioner had deliberately intended to
frustrate the probate of the 1939 will of the deceased to enable her to seek the probate of another
will other than a mere conjecture drawn from the apparently unexpected testimony of Canuto Perez
that he went out of the room to answer an urgent call of nature when Artemio Reyes was signing the
will and the failure of petitioner later to impeach the character of said witness in spite of the
opportunity given her by the court to do so. Apart from this insufficiency of evidence, the record
discloses that this failure has been explained by petitioner when she informed the court that she was
unable to impeach the character of her witness Canuto Perez because of her inability to find
witnesses who may impeach him, and this explanation stands uncontradicted. Whether this
explanation is satisfactory or not, it is not now, for us to determine. It is an incident that comes within
the province of the former case. The failure of petitioner to present the testimony of Artemio Reyes
at the hearing has also been explained, and it appears that petitioner has filed because his
whereabouts could not be found. Whether this is true or not is also for this Court to determine. It is
likewise within the province and function of the court in the former case. And the unfairness of this
imputation becomes more glaring when we stock of the developments that had taken place in these
proceedings which show in bold relief the true nature of the conduct, behavior and character of the
petitioner so bitterly assailed and held in disrepute by the oppositors.

It should be recalled that the first petition for the probate of the will executed on June 20, 1939, was
filed on February 7, 1941, by the petitioner. There being no opposition, the will was probated.
Subsequently, however, upon petition of the herein oppositors, the order of the court admitting said
will to probate was set aside, over the vigorous opposition of the herein petitioner, and the case was
reopened. The reopening was ordered because of the strong opposition of the oppositors who
contended that he will had not been executed as required by law. After the evidence of both parties
had been presented, the oppositors filed an extensive memorandum wherein they reiterated their
view that the will should be denied probate. And on the strenght of this opposition, the court
disallowed the will.

If petitioner then knew that the 1939 will was inherently defective and would make the testamentary
disposition in her favor invalid and ineffective, because it is a "disposicion captatoria", which
knowledge she may easily acquire through consultation with a lawyer, there was no need her to go
through the order of filing the petition for the probate of the will. She could accomplish her desire by
merely suppressing the will or tearing or destroying it, and then take steps leading to the probate of
the will executed in 1918. But for her conscience was clear and bade her to take the only proper step
possible under the circumstances, which is to institute the necessary proceedings for the probate of
the 1939 will. This she did and the will was admitted to probate. But then the unexpected happened.
Over her vigorous opposition, the herein appellants filed a petition for reopening, and over her
vigorous objection, the same was granted and the case was reopened. Her motion for
reconsideration was denied. Is it her fault that the case was reopened? Is it her fault that the order
admitting the will to probate was set aside? That was a contingency which petitioner never expected.
Had appellants not filed their opposition to the probate of the will and had they limited their objection
to the intrinsic validity of said will, their plan to defeat the will and secure the intestacy of the
deceased would have perhaps been accomplished. But they failed in their strategy. If said will was
denied probate it is due to their own effort. It is now unfair to impute bad faith petitioner simply
because she exerted every effort to protect her own interest and prevent the intestacy of the
deceased to happen.

Having reached the foregoing conclusions, it is obvious that the court did not commit the second and
third errors imputed to it by the counsel for appellants. Indeed, petitioner cannot be considered guilty
or estoppel which would prevent her from seeking the probate of the 1918 will simply because of her
effort to obtain the allowance of the 1939 will has failed considering that in both the 1918 and 1939
wills she was in by her husband as his universal heir. Nor can she be charged with bad faith far
having done so because of her desire to prevent the intestacy of her husband. She cannot be
blamed being zealous in protecting her interest.

The next contention of appellants refers to the revocatory clause contained in 1939 will of the
deceased which was denied probate. They contend that, notwithstanding the disallowance of said
will, the revocatory clause is valid and still has the effect of nullifying the prior of 1918.

Counsel for petitioner meets this argument by invoking the doctrine laid down in the case of Samson
vs. Naval, (41 Phil., 838). He contends that the facts involved in that case are on all fours with the
facts of this case. Hence, the doctrine is that case is here controlling.

There is merit in this contention. We have carefully read the facts involved in the Samson case we
are indeed impressed by their striking similarity with the facts of this case. We do not need to recite
here what those facts are; it is enough to point out that they contain many points and circumstances
in common. No reason, therefore, is seen by the doctrine laid down in that case (which we quote
hereunder) should not apply and control the present case.

A subsequent will, containing a clause revoking a previous will, having been disallowed, for
the reason that it was not executed in conformity with the provisions of section 618 of the
 Code of Civil Procedure as to the making of wills, cannot produce the effect of annulling the
previous will, inasmuch as said revocatory clause is void. (41 Phil., 838.)

Apropos of this question, counsel for oppositors make the remark that, while they do not disagree
with the soundness of the ruling laid down in the Samson case, there is reason to abandon said
ruling because it is archaic or antiquated and runs counter to the modern trend prevailing in
American jurisprudence. They maintain that said ruling is no longer controlling but merely represents
the point of view of the minority and should, therefore, be abandoned, more so if we consider the
fact that section 623 of our Code of Civil Procedure, which governs the revocation of wills, is of
American origin and as such should follow the prevailing trend of the majority view in the United
States. A long line of authorities is cited in support of this contention. And these authorities hold the
view, that "an express revocation is immediately effective upon the execution of the subsequent will,
and does not require that it first undergo the formality of a probate proceeding". (p. 63, appellants'
brief .

While they are many cases which uphold the view entertained by counsel for oppositors, and that
view appears to be in controlling the states where the decisions had been promulgated, however, we
are reluctant to fall in line with the assertion that is now the prevailing view in the United States. In
the search we have made of American authorities on the subject, we found ourselves in a pool of
conflicting opinions perhaps because of the peculiar provisions contained in the statutes adopted by
each State in the subject of revocation of wills. But the impression we gathered from a review and
the study of the pertinent authorities is that the doctrine laid down in the Samson case is still a good
law. On page 328 of the American Jurisprudence Vol. 57, which is a revision Published in 1948, we
found the following passages which in our opinion truly reflect the present trend of American
jurisprudence on this matter affecting the revocation of wills:

SEC. 471. Observance of Formalities in Execution of Instrument. — Ordinarily, statutes

which permit the revocation of a will by another writing provide that to be effective as a
revocation, the writing must be executed with the same formalities which are required to be
observed in the execution of a will. Accordingly, where, under the statutes, attestation is
necessary to the making of a valid will, an unattested non testamentary writing is not
effective to revoke a prior will. It has been held that a writing fails as a revoking instrument
where it is not executed with the formalities requisite for the execution of a will, even though
it is inscribed on the will itself, although it may effect a revocation by cancellation or
obliteration of the words of the will. A testator cannot reserve to himself the power to modify
a will by a written instrument subsequently prepared but not executed in the manner required
for a will.

SEC, 472. Subsequent Unexecuted, Invalid, or Ineffective Will or Codicil. — A will which is
invalid because of the incapacity of the testator, or of undue influence can have no effect
whatever as a revoking will. Moreover, a will is not revoked by the unexecuted draft of a later
one. Nor is a will revoked by a defectively executed will or codicil, even though the latter
contains a clause expressly revoking the former will, in a jurisdiction where it is provided by a
controlling statute that no writing other than a testamentary instrument is sufficient to revoke
a will, for the simple reason that there is no revoking will. Similarly where the statute provides
that a will may be revoked by a subsequent will or other writing executed with the same
formalities as are required in the execution of wills, a defectively executed will does not
revoke a prior will, since it cannot be said that there is a writing which complies with the
statute. Moreover, a will or codicil which, on account of the manner in which it is executed, is
sufficient to pass only personally does not affect dispositions of real estate made by a former
will, even though it may expressly purport to do so. The intent of the testator to revoke is
immaterial, if he has not complied with the statute. (57 Am. Jur., 328, 329.)
We find the same opinion in the American Law Reports, Annotated, edited in 1939. On page 1400,
Volume 123, there appear many authorities on the "application of rules where second will is invalid",
among which a typical one is the following:

It is universally agreed that where the second will is invalid on account of not being executed
in accordance with the provisions of the statute, or where the testator who has not sufficient
mental capacity to make a will or the will is procured through undue influence, or the such, in
other words, where the second will is really no will, it does not revoke the first will or affect it
in any manner. Mort vs. Baker University (193-5) 229 Mo. App., 632, 78 S.W. (2d), 498.

These treaties cannot be mistaken. They uphold the view on which the ruling in the Samson case is
predicated. They reflect the opinion that this ruling is sound and good and for this reason, we see no
justification for abondoning it as now suggested by counsel for the oppositors.

It is true that our law on the matter (sec. 623, Code Civil Procedure) provides that a will may be
some will, codicil, or other writing executed as proved in case of wills" but it cannot be said that the
1939 will should be regarded, not as a will within the meaning of said word, but as "other writing
executed as provided in the case of wills", simply because it was denied probate. And even if it be
regarded as any other writing within the meaning of said clause, there is authority for holding that
unless said writing is admitted to probate, it cannot have the effect of revocation. (See 57 Am. Jur.
pp. 329-330).

But counsel for oppositors contemned that, regardless of said revocatory clause, said will of 1918
cannot still be given effect because of the presumption that it was deliberately revoked by the
testator himself. The oppositors contend that the testator, after executing the 1939 will, and with full
knowledge of the recovatory clause contained said will, himself deliberately destroyed the original of
the 1918 will, and for that reason the will submitted by petitioner for probate in these proceedings is
only a duplicate of said original.

There is no evidence which may directly indicate that the testator deliberately destroyed the original
of the 1918 will because of his knowledge of the revocatory clause contained in the will he executed
in 1939. The only evidence we have is that when the first will was executed in 1918, Juan Salcedo,
who prepared it, gave the original and copies to the testator himself and apparently they remained in
his possession until he executed his second will in 1939. And when the 1939 will was denied probate
on November 29, 1943, and petitioner was asked by her attorney to look for another will, she found
the duplicate copy (Exhibit A) among the papers or files of the testator. She did not find the original.

If it can be inferred that the testator deliberately destroyed the 1918 will because of his knowledge of
the revocatory clause of the 1939 will, and it is true that he gave a duplicate copy thereof to his wife,
the herein petitioner, the most logical step for the testator to take is to recall said duplicate copy in
order that it may likewise be destroyed. But this was not done as shown by the fact that said
duplicate copy remained in the possession of petitioner. It is possible that because of the long lapse
of twenty-one (21) years since the first will was executed, the original of the will had been misplaced
or lost, and forgetting that there was a copy, the testator deemed it wise to execute another will
containing exactly the same testamentary dispositions. Whatever may be the conclusion we may
draw from this chain of circumstances, the stubborn fact is that there is no direct evidence of
voluntary or deliberate destruction of the first will by the testator. This matter cannot be inference or
conjectur.

Granting for the sake of argument that the earlier will was voluntarily destroyed by the testator after
the execution of the second will, which revoked the first, could there be any doubt, under this theory,
that said earlier will was destroyed by the testator in the honest belief that it was no longer
necessary because he had expressly revoked it in his will of 1939? In other words, can we not say
that the destruction of the earlier will was but the necessary consequence of the testator's belief that
the revocatory clause contained in the subsequent will was valid and the latter would be given
effect? If such is the case, then it is our opinion that the earlier will can still be admitted to probate
under the principle of "dependent relative revocation".

This doctrine is known as that of dependent relative revocation, and is usually applied where
the testator cancels or destroys a will or executes an instrument intended to revoke a will
with a present intention to make a new testamentary disposition as a substitute for the old,
and the new disposition is not made or, if made, fails of effect for same reason. The doctrine
is n limited to the existence of some other document, however, and has been applied where
a will was destroyed as a consequence of a mistake of law. . . . (68 C.J.P. 799).

The rule is established that where the act of destruction is connected with the making of
another will so as fairly to raise the inference that the testator meant the revocation of the old
to depend upon the efficacy of a new disposition intended to be substituted, the revocation
will be conditional and dependent upon the efficacy of the new disposition; and if, for any
reason, the new will intended to be made as a substitute is inoperative, the revocation fails
and the original will remains in full force. (Gardner, pp. 232, 233.)

This is the doctrine of dependent relative revocation. The failure of a new testamentary
disposition upon whose validity the revocation depends, is equivalent to the non-fulfillment of
a suspensive conditions, and hence prevents the revocation of the original will. But a mere
intent to make at some time a will in the place of that destroyed will not render the
destruction conditional. It must appear that the revocation is dependent upon the valid
execution of a new will. (1 Alexander, p. 751; Gardner, p. 253.)

We hold therefore, that even in the supposition that the destruction of the original will by the testator
could be presumed from the failure of the petitioner to produce it in court, such destruction cannot
have the effect of defeating the prior will of 1918 because of the fact that it is founded on the
mistaken belief that the will of 1939 has been validly executed and would be given due effect. The
theory on which this principle is predicated is that the testator did not intend to die intestate. And this
intention is clearly manifest when he executed two wills on two different occasion and instituted his
wife as his universal heir. There can therefore be no mistake as to his intention of dying testate.

The remaining question to be determined refers to the sufficiency of the evidence to prove the due
execution of the will.

The will in question was attested, as required by law, by three witnesses, Lorenzo Morales, Rufino
Enriquez, and Angel Cuenca. The first two witnesses died before the commencement of the present
proceedings. So the only instrumental witness available was Angel Cuenca and under our law and
precedents, his testimony is sufficient to prove the due execution of the will. However, petitioner
presented not only the testimony of Cuenca but placed on the witness stand Juan Salcedo, the
notary public who prepared and notarized the will upon the express desire and instruction of the
testator, The testimony of these witnesses shows that the will had been executed in the manner
required by law. We have read their testimony and we were impressed by their readiness and
sincerity. We are convinced that they told the truth.

Wherefore, the order appealed from is hereby affirmed, with costs against the appellants. 1âwphïl.nêt
Molo vs. Molo
G.R. No. L-2538 September 21, 1951

Bautista Angelo, J. (Ponente)

Doctrine of Dependent Relative Revocation

Facts:
1. Marcos Molo executed 2 wills, one in August 1918 and another in June 1939. The latter will
contained a revocation clause which expressly revoked the will in 1918. He died without any
forced heirs but he was survived by his wife, herein petitioner Juana. The oppositors to the
probate were his nephews and nieces.

2. Only a carbon copy of the second will was found. The widow filed a petition for the probate of
the 1939 will. It was admitted to probate but subsequently set aside on ground that the petitioner
failed to prove its due execution.

3. As a result, the petitioner filed another petition for the probate of the 1918 will this time. Again
the oppositors alleged that said will had already been revoked under the 1939 will. They
contended that despite the disallowance of the 1939 will, the revocation clause is valid and thus
effectively nullified the 1918 will.

Issue: Whether or not the 1918 will can still be valid despite the revocation in the
subsequent disallowed 1939 will

RULING: Yes. The court applied the doctrine laid down in Samson v. Naval that a subsequent
will,containing a clause revoking a previous will, having been disallowed for the reason that it
was not executed in accordance with law cannot produce the effect of annulling the previous
will, inasmuch as the said revocatory clause is void.

There was no valid revocation in this case. No evidence was shown that the testator deliberately
destroyed the original 1918 will because of his knowledge of the revocatory clause contained in
the will executed in 1939.The earlier will can still be probated under the principle of
dependent relative revocation. The doctrine applies when a testator cancels or destroys
a will or executes an instrument intended to revoke a will with the intention to make a
new testamentary disposition as substitute for the old, and the new disposition fails of
effect for some reason.
DIAZ vs. DE LEON

G.R. No. 17714 May 31, 1922

In the mater of the estate of Jesus de Leon.

IGNACIA DIAZ, petitioner-appellant,
vs.
ANA DE LEON, opponent-appellee.

The only question raised in this case is whether or to the will executed by Jesus de Leon, now, was
revoked by him.

The petitioner denies such revocation, while the contestant affirms the same by alleging that the
testator revoked his will by destroying it, and by executing another will expressly revoking the former.

We find that the second will Exhibit 1 executed by the deceased is not cloth with all the necessary
requisites to constitute a sufficient revocation.

But according to the statute governing the subject in this jurisdiction, the destruction of a will animo
revocandi constitutes, in itself, a sufficient revocation. (Sec. 623, Code of Civil Procedure.)lävvphì1·né+

From the evidence submitted in this case, it appears that the testator, shortly after the execution of
the first will in question, asked that the same be returned to him. The instrument was returned to the
testator who ordered his servant to tear the document. This was done in his presence and before a
nurse who testified to this effect. After some time, the testator, being asked by Dr. Cornelio Mapa
about the will, said that it had been destroyed.

The intention of revoking the will is manifest from the established fact that the testator was anxious
to withdraw or change the provisions he had made in his first will. This fact is disclosed by the
testator's own statements to the witnesses Canto and the Mother Superior of the Hospital where he
was confined.

The original will herein presented for probate having been destroyed with animo revocandi, cannot
now be probated as the will and last testament of Jesus de Leon.

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

Diaz v. De Leon
G.R. No. 17714 May 31, 1922

Facts:
1. Jesus de Leon executed 2 wills, the second will was not deemed in conformance to
the requirements under the law. After executing his first will, he asked it to be
immediately returned to him. As it was returned, he instructed his servant to tear it. This
was done in the testator's presence and his nurse. After sometime, he was asked by his
physician about the incident wherein he replied that the will has already been destroyed.

Issue: Whether or not there was a valid revocation of the will

RULING: Yes. His intention to revoke is manifest from the facts that he was anxious to
withdraw or change the provisions he made in the first will. This fact was shown from his
own statements to the witnesses and the mother superior of the hospital where he was
subsequently confined. The original will which was presented for probate is deemed
destroyed hence, it cannot be probated as the last will and testament of testator.
ARTICLE 838

G.R. No. L-48840 December 29, 1943

ERNESTO M. GUEVARA, petitioner-appellant,

vs.
ROSARIO GUEVARA and her husband PEDRO BUISON, respondent-appellees.

OZAETA, J.:

Ernesto M. Guevarra and Rosario Guevara, ligitimate son and natural daughter, respectively, of the
deceased Victorino L. Guevara, are litigating here over their inheritance from the latter. The action
was commenced on November 12, 1937, by Rosario Guevara to recover from Ernesto Guevara
what she claims to be her strict ligitime as an acknowledged natural daughter of the deceased — to
wit, a portion of 423,492 square meters of a large parcel of land described in original certificate of
title No. 51691 of the province of Pangasinan, issued in the name of Ernesto M. Guervara — and to
order the latter to pay her P6,000 plus P2,000 a year as damages for withholding such legitime from
her. The defendant answered the complaint contending that whatever right or rights the plaintiff
might have had, had been barred by the operation of law.

It appears that on August 26, 1931, Victorino L. Guevara executed a will (exhibit A), apparently with
all the formalities of the law, wherein he made the following bequests: To his stepdaughter Candida
Guevara, a pair of earrings worth P150 and a gold chain worth P40; to his son Ernesto M. Guevara,
a gold ring worth P180 and all the furniture, pictures, statues, and other religious objects found in the
residence of the testator in Poblacion Sur, Bayambang, Pangasinan; "a mi hija Rosario Guevara," a
pair of earrings worth P120; to his stepson Piuo Guevara, a ring worth P120; and to his wife by
second marriage, Angustia Posadas, various pieces of jewelry worth P1,020.

He also made the following devises: "A mis hijos Rosario Guevara y Ernesto M. Guevara y a mis
hijastros, Vivencio, Eduviges, Dionisia, Candida y Pio, apellidados Guevara," a residential lot with its
improvements situate in the town of Bayambang, Pangasinan, having an area of 960 square meters
and assessed at P540; to his wife Angustia Posadas he confirmed the donation propter
nuptias theretofore made by him to her of a portion of 25 hectares of the large parcel of land of 259-
odd hectares described in plan Psu-66618. He also devised to her a portion of 5 hectares of the
same parcel of land by way of complete settlement of her usufructurary right. 1aw phil.net

He set aside 100 hectares of the same parcel of land to be disposed of either by him during his
lifetime or by his attorney-in-fact Ernesto M. Guevara in order to pay all his pending debts and to
degray his expenses and those of his family us to the time of his death.

The remainder of said parcel of land his disposed of in the following manner:

(d). — Toda la porcion restante de mi terreno arriba descrito, de la extension superficial

aproximada de ciento veintinueve (129) hectareas setenta (70) areas, y veiticinco (25)
centiares, con todas sus mejoras existentes en la misma, dejo y distribuyo, pro-indiviso, a
mis siguientes herederos como sigue:

A mi hijo legitimo, Ernesto M. Guevara, ciento ocho (108) hectareas, ocho (8) areas y
cincuenta y cuatro (54) centiareas, hacia la parte que colinda al Oeste de las cien (100)
hectareas referidas en el inciso (a) de este parrafo del testamento, como su propiedad
absoluta y exclusiva, en la cual extension superficial estan incluidas cuarenta y tres (43)
 hectareas, veintitres (23) areas y cuarenta y dos (42) centiareas que le doy en concepto de
mejora.

A mi hija natural reconocida, Rosario Guevara, veintiun (21) hectareas, sesenta y un (61)
areas y setenta y un (71) centiareas, que es la parte restante.

Duodecimo. — Nombro por la presente como Albacea Testamentario a mi hijo Ernesto M.

Guevara, con relevacion de fianza. Y una vez legalizado este testamento, y en cuanto sea
posible, es mi deseo, que los herederos y legatarios aqui nombrados se repartan
extrajudicialmente mis bienes de conformidad con mis disposiciones arriba consignadas.

Subsequently, and on July 12, 1933, Victorino L. Guevarra executed whereby he conveyed to him
the southern half of the large parcel of land of which he had theretofore disposed by the will above
mentioned, inconsideration of the sum of P1 and other valuable considerations, among which were
the payment of all his debts and obligations amounting to not less than P16,500, his maintenance up
to his death, and the expenses of his last illness and funeral expenses. As to the northern half of the
same parcel of land, he declared: "Hago constar tambien que reconozco a mi referido hijo Ernesto
M. guevara como dueño de la mitad norte de la totalidad y conjunto de los referidos terrenos por
haberlos comprado de su propio peculio del Sr. Rafael T. Puzon a quien habia vendido con
anterioridad."

On September 27, 1933, final decree of registration was issued in land registration case No. 15174
of the Court of First Instance of Pangasinan, and pursuant thereto original certificate of title No.
51691 of the same province was issued on October 12 of the same year in favor of Ernesto M.
Guevara over the whole parcel of land described in the deed of sale above referred to. The
registration proceeding had been commenced on November 1, 1932, by Victorino L. Guevara and
Ernesto M. Guevara as applicants, with Rosario, among others, as oppositor; but before the trial of
the case Victorino L. Guevara withdrew as applicant and Rosario Guevara and her co-oppositors
also withdrew their opposition, thereby facilitating the issuance of the title in the name of Ernesto M.
Guevara alone.

On September 27, 1933, Victorino L. Guevarra died. His last will and testament, however, was never
presented to the court for probate, nor has any administration proceeding ever been instituted for the
settlement of his estate. Whether the various legatees mentioned in the will have received their
respective legacies or have even been given due notice of the execution of said will and of the
dispositions therein made in their favor, does not affirmatively appear from the record of this case.
Ever since the death of Victorino L. Guevara, his only legitimate son Ernesto M. Guevara appears to
have possessed the land adjudicated to him in the registration proceeding and to have disposed of
various portions thereof for the purpose of paying the debts left by his father.

In the meantime Rosario Guevara, who appears to have had her father's last will and testament in
her custody, did nothing judicially to invoke the testamentary dispositions made therein in her favor,
whereby the testator acknowledged her as his natural daughter and, aside from certain legacies and
bequests, devised to her a portion of 21.6171 hectares of the large parcel of land described in the
will. But a little over four years after the testor's demise, she (assisted by her husband) commenced
the present action against Ernesto M. Guevara alone for the purpose hereinbefore indicated; and it
was only during the trial of this case that she presented the will to the court, not for the purpose of
having it probated but only to prove that the deceased Victirino L. Guevara had acknowledged her
as his natural daughter. Upon that proof of acknowledgment she claimed her share of the
inheritance from him, but on the theory or assumption that he died intestate, because the will had not
been probated, for which reason, she asserted, the betterment therein made by the testator in favor
of his legitimate son Ernesto M. Guevara should be disregarded. Both the trial court and the Court of
appeals sustained that theory.

Two principal questions are before us for determination: (1) the legality of the procedure adopted by
the plaintiff (respondent herein) Rosario Guevara; and (2) the efficacy of the deed of sale exhibit 2
and the effect of the certificate of title issued to the defendant (petitioner herein) Ernesto M.
Guevara.

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

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

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

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

Sec. 628. Penalty. — A person who neglects any of the duties required in the two proceeding
sections, unless he gives a satisfactory excuse to the court, shall be subject to a fine not
exceeding one thousand dollars.

Sec. 629. Person Retaining Will may be Committed. — If a person having custody of a will
after the death of the testator neglects without reasonable cause to deliver the same to the
court having jurisdiction, after notice by the court so to do, he may be committed to the
prison of the province by a warrant issued by the court, and there kept in close confinement
until he delivers the will.

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

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

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

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

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

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

Section 1. Extrajudicial settlement by agreement between heirs. — If the decedent left no

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

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

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

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

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

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

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

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

In resolving that question this Court said:

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

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

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

1. EXTRAJUDICIAL PARTITION; NOT PROPER IN TESTATE SUCCESSION. — Section

596 of the Code of Civil Procedure, authorizing the heirs of a person who dies intestate to
make extrajudicial partition of the property of the deceased, without going into any court of
justice, makes express reference to intestate succession, and therefore excludes testate
succession.

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

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

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

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

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

II

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

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

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

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

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

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

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

Upon this phase of the litigation, we affirm the finding of the Court of Appeals that the northern half
of the land described in the will exhibit A and in original certificate of title No. 51691 still belongs to
the estate of the deceased Victorino L. Guevara. In the event the petitioner Ernesto M. Guevara has
alienated any portion thereof, he is under obligation to compensate the estate with an equivalent
portion from the southern half of said land that has not yet been sold. In other words, to the estate of
Victorino L. Guevara still belongs one half of the total area of the land described in said original
certificate of title, to be taken from such portions as have not yet been sold by the petitioner, the
other half having been lawfully acquired by the latter in consideration of his assuming the obligation
to pay all the debts of the deceased.

Wherefore, that part of the decision of the Court of Appeals which declares in effect that
notwithstanding exhibit 2 and the issuance of original certificate of title No. 51691 in the name of
Ernesto M. Guevara, one half of the land described in said certificate of title belongs to the estate of
Victorino L. Guevara and the other half to Ernesto M. Guevara in consideration of the latter's
assumption of the obligation to pay all the debts of the deceased, is hereby affirmed; but the
judgment of said court insofar as it awards any relief to the respondent Rosario Guevara in this
action is hereby reversed and set aside, and the parties herein are hereby ordered to present the
document exhibit A to the proper court for probate in accordance with law, without prejudice to such
action as the provincial fiscal of Pangasinan may take against the responsible party or parties under
section 4 of Rule 76. After the said document is approved and allowed by the court as the last will
and testament of the deceased Victorino L. Guevara, the heirs and legatees therein named may take
such action, judicial or extrajudicial, as may be necessary to partition the estate of the testator,
taking into consideration the pronouncements made in part II of this opinion. No finding as to costs in
any of the three instances.

Guevara v Guevara Digest

Guevara v. Guevara Digest

Facts:
1. Victorino Guevara executed a will in 1931 wherein he made various bequests t his wife, stepchildren,
wife in the 2nd marriage. He has a legitimate son Ernesto and a natural daughter Rosario. Therein, he
acknowledged Rosario as his natural daughter.

2. In 1933, Victorino died but his last will was never presented for probate nor was there any settlement
proceeding initiated. It appeared that only his son Ernest possessed the land which he adjudicated to
himself. While Rosario who had the will in her custody, did nothing to invoke the acknowledgment, as well
as the devise given to her.

3. Subsequently, Rosario filed an action for the recovery of her legitime from Ernesto, a portion of a large
parcel of land invoking the acknowledgment contained in the will and based on the assumption that the
decedent died intestate because his will was not probated. She alleged that the disposition in favor of
Ernesto should be disregarded.

4. The lower court and the Court of Appeals sustained Rosario's theory.

Issue: Whether or not the probate of a will can be dispensed with

RULING: No. Rosario's contention violates procedural law and considered an attempt to circumvent the
last will and testament of the decedent. The presentation of a will to the court for probate is mandatory
and its allowance is essential and indispensable to its efficacy.

Suppression of the will is contrary to law and public policy for without probate, the right of a person to
dispose of his property by will may be rendered nugatory.
DE LA CERNA vs. POTOT

G.R. No. L-20234 December 23, 1964

PAULA DE LA CERNA, ET AL., petitioners,

vs.
MANUELA REBACA POTOT, ET AL., and THE HONORABLE COURT OF

REYES, J.B.L., J.:

Appeal by Paula de la Cerna and others from a decision of the Court of Appeals, Sixth Division
(C.A.-G.R. No. 23763-R) reversing that of the Court of First Instance of Cebu (Civ. Case No. R-
3819) and ordering the dismissal of an action for partition.

The factual background appears in the following portion of the decision of the Court of Appeals
(Petition, Annex A, pp. 2-4):

It appears that on May 9, 1939, the spouses, Bernabe de la Serna and Gervasia Rebaca,
executed a joint last will and testament in the local dialect whereby they willed that "our two
parcels of land acquired during our marriage together with all improvements thereon shall be
given to Manuela Rebaca, our niece, whom we have nurtured since childhood, because God
did not give us any child in our union, Manuela Rebaca being married to Nicolas Potot", and
that "while each of the testators is yet living, he or she will continue to enjoy the fruits of the
two lands aforementioned", the said two parcels of land being covered by Tax No. 4676 and
Tax No. 6677, both situated in sitio Bucao, barrio Lugo, municipality of Borbon, province of
Cebu. Bernabe dela Serna died on August 30, 1939, and the aforesaid will was submitted to
probate by said Gervasia and Manuela before the Court of First Instance of Cebu which,
after due publication as required by law and there being no opposition, heard the evidence,
and, by Order of October 31, 1939; in Special Proceedings No. 499, "declara legalizado el
documento Exhibit A como el testamento y ultima voluntad del finado Bernabe de la Serna
con derecho por parte du su viuda superstite Gervasia Rebaca y otra testadora al propio
tiempo segun el Exhibit A de gozar de los frutos de los terranos descritos en dicho
documents; y habido consideracion de la cuantia de dichos bienes, se decreta la distribucion
sumaria de los mismos en favor de la logataria universal Manuela Rebaca de Potot previa
prestacion por parte de la misma de una fianza en la sum de P500.00 para responder de
cualesquiera reclamaciones que se presentare contra los bienes del finado Bernabe de la
Serna de los años desde esta fecha" (Act Esp. 499, Testamentaria Finado Bernabe de la
Serna) Upon the death of Gervasia Rebaca on October 14, 1952, another petition for the
probate of the same will insofar as Gervasia was concerned was filed on November 6, 1952,
being Special Proceedings No. 1016-R of the same Court of First Instance of Cebu, but for
failure of the petitioner, Manuela R. Potot and her attorney, Manuel Potot to appear, for the
hearing of said petition, the case was dismissed on March 30, 1954 Spec. Proc. No. 1016-R,
In the matter of the Probate of the Will of Gervasia Rebaca).

The Court of First Instance ordered the petition heard and declared the testament null and void, for
being executed contrary to the prohibition of joint wills in the Civil Code (Art. 669, Civil Code of 1889
and Art. 818, Civil Code of the Philippines); but on appeal by the testamentary heir, the Court of
Appeals reversed, on the ground that the decree of probate in 1939 was issued by a court of probate
jurisdiction and conclusive on the due execution of the testament. Further, the Court of Appeals
declared that:
 ... . It is true the law (Art. 669, old Civil Code; Art. 818, new Civil Code). prohibits the making
of a will jointly by two or more persons either for their reciprocal benefit or for the benefit of a
third person. However, this form of will has long been sanctioned by use, and the same has
continued to be used; and when, as in the present case, one such joint last will and
testament has been admitted to probate by final order of a Court of competent jurisdiction,
there seems to be no alternative except to give effect to the provisions thereof that are not
contrary to law, as was done in the case of Macrohon vs. Saavedra, 51 Phil. 267, wherein
our Supreme Court gave effect to the provisions of the joint will therein mentioned, saying,
"assuming that the joint will in question is valid."

Whence this appeal by the heirs intestate of the deceased husband, Bernabe de la Cerna.

The appealed decision correctly held that the final decree of probate, entered in 1939 by the Court of
First Instance of Cebu (when the testator, Bernabe de la Cerna, died), has conclusive effect as to his
last will and testament despite the fact that even then the Civil Code already decreed the invalidity of
joint wills, whether in favor of the joint testators, reciprocally, or in favor of a third party (Art. 669, old
Civil Code). The error thus committed by the probate court was an error of law, that should have
been corrected by appeal, but which did not affect the jurisdiction of the probate court, nor the
conclusive effect of its final decision, however erroneous. A final judgment rendered on a petition for
the probate of a will is binding upon the whole world (Manalo vs. Paredes, 47 Phil. 938; In re Estates
of Johnson, 39 Phil. 156); and public policy and sound practice demand that at the risk of occasional
errors judgment of courts should become final at some definite date fixed by law. Interest rei
publicae ut finis set litium (Dy Cay vs. Crossfield, 38 Phil, 521, and other cases cited in 2 Moran,
Comments on the Rules of Court (1963 Ed., p. 322).

Petitioners, as heirs and successors of the late Bernabe de la Cerna, are concluded by the 1939
decree admitting his will to probate. The contention that being void the will cannot be validated,
overlooks that the ultimate decision on Whether an act is valid or void rests with the courts, and here
they have spoken with finality when the will was probated in 1939. On this court, the dismissal of
their action for partition was correct.

But the Court of Appeals should have taken into account also, to avoid future misunderstanding, that
the probate decree in 1989 could only affect the share of the deceased husband, Bernabe de la
Cerna. It could not include the disposition of the share of the wife, Gervasia Rebaca, who was then
still alive, and over whose interest in the conjugal properties the probate court acquired no
jurisdiction, precisely because her estate could not then be in issue. Be it remembered that prior to
the new Civil Code, a will could not be probated during the testator's lifetime.

It follows that the validity of the joint will, in so far as the estate of the wife was concerned, must be,
on her death, reexamined and adjudicated de novo, since a joint will is considered a separate will of
each testator. Thus regarded, the holding of the court of First Instance of Cebu that the joint will is
one prohibited by law was correct as to the participation of the deceased Gervasia Rebaca in the
properties in question, for the reasons extensively discussed in our decision in Bilbao vs. Bilbao, 87
Phil. 144, that explained the previous holding in Macrohon vs. Saavedra, 51 Phil. 267.

Therefore, the undivided interest of Gervasia Rebaca should pass upon her death to her heirs
intestate, and not exclusively to the testamentary heir, unless some other valid will in her favor is
shown to exist, or unless she be the only heir intestate of said Gervasia.

It is unnecessary to emphasize that the fact that joint wills should be in common usage could not
make them valid when our Civil Codes consistently invalidated them, because laws are only
repealed by other subsequent laws, and no usage to the contrary may prevail against their
observance (Art. 5, Civ. Code of 1889; Art. 7, Civil Code of the Philippines of 1950).

WITH THE FOREGOING MODIFICATION, the judgment of the Court of Appeals in CA-G.R. No.
23763-R is affirmed. No Costs.

Dela Cerna v. Potot Digest

Facts:
1. The spouses Bernabe Dela Serna and Gerasisa Rebabca executed a joint will where they
gave two (2) parcels of land to manuela Rebaca, a niece, as they didn't have their own child.
When Bernabe died, the said will was probated in 1939.

2. Another petition for probate of the same will insofar as Gervasia was concerned was filed in
1952 but due to the failure of the petitioner (Manuela) to appears, the same was dismissed in
1954.

3. The CFI held the petition (Bernabe probate) to be null and void as it is contrary to law. While
the Court of Appeals reversed and held that the decree of probate in 1939 was issued by a
court of probate jurisdiction and conclusive as to the due execution of the will. Hence this
appeal.

Issue: Whether or not the will is valid

RULING: The Supreme Court affirmed the CA decision and held that Once a decree of probate
becomes final in accordance with the rules of procedure, it is res judicata. The final decree of
probate entered in 1939 in the CFI of Cebu is conclusive as to the last will of Bernabe despite
the fact that even then the Civil Code already decreed the invalidity of joint wills. (There was an
error on the court but the decree has now become final.)

The probate court committed an error of law which should have been corrected on appeals but
which did not affect the jurisdiction of the probate court, nor the conclusive effect of its final
decision. A decision which is binding upon the whole world.

Nevertheless, the probate in 1939 only affected the share of Bernabe and could not include the
disposition of the share of his wife which was still alive then, her properties were still not within
the jurisdiction of the court. Hence, the validity of the will with respect to her, must be on her
death, be re-examined and adjudicated de novo -- since a joint will is considered a separate will
of each testator.
GALLANOSA vs. ARCANGEL

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

In this special civil action of certiorari, filed on July 29, 1968, the petitioners seek to annul the orders
of respondent Judge dated May 3 trial June 17, 1968, wherein he reconsidered his order of January
10, 1968, dismissing, on the ground of prescription, the complaint in Civil Case No. 2233 of the
Court of First Instance of Sorsogon.

The case involves the sixty-one parcels of land in Sorsogon left by Florentino Hitosis, with an
estimated value of P50,000, trial claims for damages exceeding one million pesos. The undisputed
facts are as follows:

1. Florentino Hitosis executed a will in the Bicol dialect on June 19, 1938 when he was eighty years
old. He died on May 26, 1939 at Irosin, Sorsogon. A childless widower, he as survived by his
brother, Leon Hitosis. His other brothers, named Juan, Tito (Juancito), Leoncio (Aloncio) trial
Apolonio and only sister, Teodora, were all dead.

2. On June 24, 1939 a petition for the probate of his will was filed in the Court of First Instance of
Sorsogon (Special Proceeding No. 3171). The notice of hearing was duly published. In that will,
Florentino bequeathed his one-half share in the conjugal estate to his second wife, Tecla Dollentas,
and, should Tecla predecease him, as was the case, his one-half share would be assigned to the
spouses Pedro Gallanosa and Corazon Grecia, the reason being that Pedro, Tecla's son by her first
marriage, grew up under the care of Florentino; he had treated Pedro as his foster child, and Pedro
has rendered services to Florentino and Tecla. Florentino likewise bequeathed his separate
properties consisting of three parcels of abaca land and parcel of riceland to his protege
(sasacuyang ataman), Adolfo Fortajada, a minor.

3. Opposition to the probate of the will was registered by the testator's legal heirs, namely, his
surviving brother, Leon, trial his nephews trial nieces. After a hearing, wherein the oppositors did not
present any evidence in support of their opposition, Judge Pablo S. Rivera, in his decision of
October 27, 1939, admitted the will to probate and appointed Gallanosa as executor. Judge Rivera
specifically found that the testator executed his last will "gozando de buena salud y facultades
mentales y no obrando en virtud de amenaza, fraude o influencia indebida."

4. On October 24, 1941, the testamentary heirs, the Gallanosa spouses trial Adolfo Fortajada,
submitted a project of partition covering sixty-one parcels of land located in various parts of
Sorsogon, large cattle trial several pieces of personal property which were distributed in accordance
with Florentino's will. The heirs assumed the obligations of the estate amounting to P7,129.27 in the
portion of P2,376.42 for Adolfo Fortajada and P4,752.85 for the Gallanosa spouses. The project of
partition was approved by Judge Doroteo Amador in his order of March 13, 1943, thus confirming
the heirs' possession of their respective shares. The testator's legal heirs did not appeal from the
decree of probate trial from the order of partition trial distribution.

5. On February 20, 1952, Leon Hitosis trial the heirs of Florentino's deceased brothers trial sisters
instituted an action in the Court of First Instance of Sorsogon against Pedro Gallanosa for the
recovery of the said sixty-one parcels of land. They alleged that they, by themselves or through their
predecessors-in-interest, had been in continuous possession of those lands en concepto de
dueño trial that Gallanosa entered those lands in 1951 trial asserted ownership over the lands. They
prayed that they be declared the owners of the lands trial that they be restored to the possession
thereof. They also claimed damages (Civil Case No. 696).
6. Gallanosa moved to dismiss the above complaint for lack of cause of action trial on the ground of
bar by the prior judgment in the probate proceeding. Judge Anatolio C. Mañalac dismiss the
complaint on the ground of res judicatain his order of August 14, 1952 wherein he said:

It also appears that the plaintiffs and/or their predecessors-in-interest had intervened
in the testate proceedings in Civil Case No. 3171 of this Court for- the purpose of
contesting the probate of the will of (the) late Florentino Hitosis; trial had their
opposition prospered trial the will denied of probate, the proceedings would have
been converted into one of intestacy (Art. 960 Civil Code) and the settlement of the
estate of the said deceased would have been made in accordance with the
provisions of law governing legal or intestate succession ... , in which case the said
plaintiffs, as the nearest of kin or legal heirs of said Florentino Mitosis, would have
succeeded to the ownership and possession of the 61 parcels of land in question
forming part of his estate (art. 1003, Civil Code).

However, the derision of the Court was adverse to them, when it their opposition trial
ordered the probate of his will. From this decision (Annex K) legalizing the said will,
the oppositors did not file any appeal within the period fixed by law, despite the fact
that they were duly notified thereof, so that the said decision had become final trial it
now constitutes a bar to any action that the plaintiffs may institute for the purpose of
a redetermination of their rights to inherit the properties of the late Florentino Hitosis.

In other words, the said decision of this Court in Civil Case special ) No. 3171, in
which the herein plaintiffs or their predecessors-in-interest had intervened as parties
oppositors, constitutes a final judicial determination of the issue that the said
plaintiffs, as ordinary heirs, have no legal rights to succeed to any of the properties of
the late Florentino Hitosis; consequently, their present claim to the ownership trial
possession of the 61 parcels of land in question is without any legal merit or basis.

7. The plaintiffs did not appeal from that order of dismissal which should have set the matter at rest.
But the same plaintiffs or oppositors to the probate of the will, trial their heirs, with a persistence
befitting a more meritorious case, filed on September 21, 1967, or fifteen years after the dismissal of
Civil Case No. 696 trial twenty-eight years after the probate of the will another action in the same
court against the Gallanosa spouses trial Adolfo Fortajada for the "annulment" of the will of
Florentino Hitosis trial and for the recovery of the same sixty-one parcels of land. They prayed for
the appointment of a receiver.

8. As basis of their complaint, they alleged that the Gallanosa spouses, through fraud trial deceit,
caused the execution trial simulation of the document purporting to be the last will trial testament of
Florentino Hitosis. While in their 1952 complaint the game plaintiffs alleged that they were in
possession of the lands in question, in their 1967 complaint they admitted that since 1939, or from
the death of Florentino Hitosis, the defendants (now the petitioners) have been in possession of the
disputed lands (Par. XIV of the complaint, p. 70, Rollo in Civil Case No. 555, Gubat Branch, which
was transferred to Branch I in Sorsogon town where Special Proceeding No. 3171 trial Civil Case
No. 696 were decided trial which was re-docketed as Civil Case No. 2233).

9. As already stated, that 1967 complaint, upon motion of the defendants, now the petitioners, was
dismissed by respondent Judge. The plaintiffs filed a motion for reconsideration Respondent Judge.
granted it trial set aside the order of dismissal. He denied defendants' motion for the reconsideration
of his order setting aside that dismissal order.
The petitioners or the defendants below contend in this certiorari case that the lower court has no
jurisdiction to set aside the 1939 decree of probate trial the 1952 order of dismissal in Civil Case No.
696 trial that it acted with grave abuse of discretion in not dismissing private respondents' 1967
complaint.

The issue is whether, under the facts set forth above, the private respondents have a cause of action
the "annulment" of the will of Florentino Hitosis trial for the recovery of the sixty-one parcels of land
adjudicated under that will to the petitioners.

We hold that the lower court committed a grave abuse of discretion in reconsideration its order of
dismissal trial in ignoring the 1939 testamentary case trial the 1952 Civil Case No. 696 which is the
same as the instant 1967 case.

A rudimentary knowledge of substantive law trial procedure is sufficient for an ordinary lawyer to
conclude upon a causal perusal of the 1967 complaint that it is baseless trial unwarranted.

What the plaintiffs seek is the "annulment" of a last will trial testament duly probated in 1939 by the
lower court itself. The proceeding is coupled with an action to recover the lands adjudicated to the
defendants by the same court in 1943 by virtue of the probated will, which action is a resuscitation of
The complaint of the same parties that the same court dismissed in 1952.

It is evident from the allegations of the complaint trial from defendants' motion to dismiss that
plaintiffs' 1967 action is barred by res judicata, a double-barrelled defense, trial by prescription,
acquisitive trial extinctive, or by what are known in the jus civile trial the jus
gentium as usucapio, longi temporis possesio and praescriptio (See Ramos vs. Ramos, L-19872,
December 3, 1974, 61 SCRA 284).

Our procedural law does not sanction an action for the "annulment" of a will. In order that a will may
take effect, it has to be probated, legalized or allowed in the proper testamentary proceeding. The
probate of the will is mandatory (Art. 838, Civil Code; sec. 1, Rule 75, formerly sec. 1, Rule 76, Rules
of Court; Guevara vs. Guevara, 74 Phil. 479; Guevara vs. Guevara, 98 Phil. 249).

The testamentary proceeding is a special proceeding for the settlement of the testator's estate. A
special proceeding is distinct trial different from an ordinary action (Secs. 1 trial 2, Rule 2 trial sec. 1,
Rule 72, Rules of Court).

We say that the defense of res judicata, as a ground for the dismissal of plaintiffs' 1967 complaint, is
a two-pronged defense because (1) the 1939 trial 1943 decrees of probate trial distribution in
Special Proceeding No. 3171 trial (2) the 1952 order of dismissal in Civil Case No. 696 of the lower
court constitute bars by former judgment, Rule 39 of the Rules of Court provides:

SEC. 49. Effect of judgments. — The effect of a judgment or final order rendered by
a court or judge of the Philippines, having jurisdiction to pronounce the judgment or
order, may be as follows:

(a) In case of a judgment or order against a specific thing, or in respect to the

probate of a will or the administration of the estate of a deceased person, or in
respect to the personal, political, or legal condition or status of a particular person or
his relationship to another, the judgment or order is conclusive upon the title to the
thing the will or administration, or the condition, status or relationship of the person;
however, the probate of a will or granting of letters of administration shall only be
prima facie evidence of the death of the testator or intestate;
 (b) In other cases the judgment or order is, with respect to the matter directly
adjudged or as to any other matter that could have been raised in relation thereto,
conclusive between the parties trial their successors in interest by title subsequent to
the commencement of the action or special proceeding, litigating of the same thing
trial under the same title trial in the same capacity;

(c) In any other litigation between the same parties or their successors in interest,
that only is deemed to have been adjudged in a former judgment which appears
upon its face to have been so adjudged, or which was actually trial necessarily
included therein or necessary thereto.

The 1939 decree of probate is conclusive as to the due execution or formal validity of the will (Sec.
625, Act 190, sec. 1, Rule 76, now sec. 1, Rule 75, Rules of Court; Last par. of art. 838, Civil Code).

That means that the testator was of sound trial disposing mind at the time when he executed the will
and was not acting under duress, menace, fraud, or undue influence; that the will was signed by him
in the presence of the required number of witnesses, and that the will is genuine trial is not a forgery.
Accordingly, these facts cannot again be questioned in a subsequent proceeding, not even in a
criminal action for the forgery of the will. (3 Moran's Comments on the Rules of Court, 1970 Edition,
p. 395; Manahan vs. Manahan, 58 Phil. 448).

After the finality of the allowance of a will, the issue as to the voluntariness of its execution cannot be
raised anymore (Santos vs. De Buenaventura, L-22797, September 22, 1966, 18 SCRA 47).

In Austria vs. Ventenilla, 21 Phil. 180, a "petition for annulment of a will" was not entertained after the
decree of probate had become final. That case is summarized as follows:

Wills; Probate; Alledged Fraudulent Will; Appeal.— V. died. His will was admitted to
probate without objection. No appeal was taken from said order. It was admitted that
due trial legal notice had been given to all parties. Fifteen months after the date of
said order, a motion was presented in the lower court to have said will declared null
and void, for the reason that fraud had been practised upon the deceased in the
making of his will.

Held: That under section 625 of Act No. 190, the only time given parties who are
displeased with the order admitting to probate a will, for an appeal is the time given
for appeals in ordinary actions; but without deciding whether or not an order
admitting a will to probate will be opened for fraud, after the time allowed for an
appeal has expired, when no appeal is taken from an order probating a will, the heirs
can not, in subsequent litigation in the same proceedings, raise questions relating to
its due execution. The probate of a will is conclusive as to its due execution trial as to
the testamentary capacity of The testator. (See Austria vs. Heirs of Ventenilla. 99
Phil. 1069).

On the other hand, the 1943 decree of adjudication rendered by the trial court in the testate
proceeding for the settlement of the estate of Florentino Hitosis, having been rendered in a
proceeding in rem, is under the abovequoted section 49(a), binding upon the whole world (Manalo
vs. Paredes, 47 Phil. 938; In re Estate of Johnson, 39 Phil. 156; De la Cerna vs. Potot, 120 Phil.
1361, 1364; McMaster vs. Hentry Reissmann & Co., 68 Phil. 142).

It is not only the 1939 probate proceeding that can be interposed as res judicata with respect to
private respondents' complaint, The 1952 order of dismissal rendered by Judge Mañalac in Civil
Case No. 696, a judgment in personam was an adjudication on the merits (Sec. 4, Rule 30, old
Rules of Court). It constitutes a bar by former judgment under the aforequoted section 49(b)
(Anticamara vs. Ong, L-29689. April 14, 1978).

The plaintiffs or private respondents did not even bother to ask for the annulment of the
testamentary proceeding trial the proceeding in Civil Case No. 696. Obviously, they realized that the
final adjudications in those cases have the binding force of res judicata and that there is no ground,
nor is it timely, to ask for the nullification of the final orders trial judgments in those two cases.

It is a fundamental concept in the organization of every jural system, a principle of public policy, that,
at the risk of occasional errors, judgments of courts should become final at some definite date fixed
by law. Interest rei publicae ut finis sit litum. "The very object for which the courts were constituted
was to put an end to controversies." (Dy Cay vs. Crossfield and O'Brien, 38 Phil. 521: Peñalosa vs.
Tuason, 22 Phil, 303; De la Cerna vs. Potot, supra).

After the period for seeking relief from a final order or judgment under Rule 38 of the Rules of Court
has expired, a final judgment or order can be set aside only on the grounds of (a) lack of jurisdiction
or lack of due process of law or (b) that the judgment was obtained by means of extrinsic or
collateral fraud. In the latter case, the period for annulling the judgment is four years from the
discovery of the fraud (2 Moran's Comments on the Rules of Court, 1970 Edition, pp. 245-246;
Mauricio vs. Villanueva, 106 Phil. 1159).

To hurdle over the obstacle of prescription, the trial court, naively adopting the theory of plaintiffs'
counsel, held that the action for the recovery of the lands had not prescribed because the rule in
article 1410 of the Civil Code, that "the action or defense for the declaration of the inexistence of
a contract does not prescribe", applies to wills.

That ruling is a glaring error. Article 1410 cannot possibly apply to last wills trial testaments. The trial
court trial plaintiffs' counsel relied upon the case of Dingle vs. Guillermo, 48 0. G. 4410, allegedly
decided by this Court, which cited the ruling in Tipton vs. Velasco, 6 Phil. 67, that mere lapse of time
cannot give efficacy to void contracts, a ruling elevated to the category of a codal provision in article
1410. The Dingle case was decided by the Court of Appeals. Even the trial court did not take pains
to verify the misrepresentation of plaintiffs' counsel that the Dinglecase was decided by this Court.
An elementary knowledge of civil law could have alerted the trial court to the egregious error of
plaintiffs' counsel in arguing that article 1410 applies to wills.

WHEREFORE, the lower court's orders of May 3 trial June 17, 1968 are reversed trial set aside trial
its order of dismissal dated January 10, 1968 is affirmed. Costs against the private respondents.

SO ORDERED.
Gallanosa v. Arcangel

Facts:

1. Florentino Gallanosa executed a will in 1938 when he was 80 years old. He owned
61 parcels of and at that time. He died in 1939 childless and survived by his brother
Leon. In his will, he bequethed his 1/2 share of the conjugal estate to his second wife
Tecla and if she predecease him (as what occurred), the said share shall be assigned to
the spouses Gallanosa (Pedro & Corazon). Pedro is Tecla's son by her 1st marriage.
He also gave 3 parcels of land to Adolfo, his protege.

2. The said will was admitted to probate with Gallanosa as executor. In 1952, thjhe legal
heirs filed an action for the recovery of said 61 parcels of land. The action was
dismissed on the ground of res judicata. Then, 28 years after probate, another acton
agaisnt Gallanosa for annulment of the will, recovery of the lands alleging fraud and
deceit, was filed. As a result, the lower court set aide the 1939 decree of probate.

Issue: Whether or not a will which has been probated may still be annulled

RULING: No. A final decree of probate is conclusive as to the due execution of the will.
Due execution means that the testator was of sound and disposing mind at the time of
the execution and that he was not acting under duress, menace, fraud or undue
influence. Finally, that it was executed in accordance with the formalities provided by
law.

The period for seeking relief under Rule 38 has already expired, hence the judgment
may only be set aside on the grounds of, 1) lack of jurisdiction or lack of due process of
law, and 2) the judgment was obtained by means of extrinsic collateral fraud (which
must be filed within 4 years from the discovery). Finally, Art. 1410 cannot apply to wills
and testament.
Nepomuceno v. Court of Appeals

Facts:
1. Martin Hugo died on 1974 and he left a will wherein he instituted Sofia
Nepomuceno as the sole and only executor. It was also provided therein
that he was married to Rufina Gomez with whom he had 3 children.

2. Petitioner (Sofia) filed for the probate of the will but the legal wife and her
children opposed alleging that the will was procured through improper and
undue influence and that there was an admission of concubinage with the
petitioner.

3. The lower court denied the probate on the ground of the testator's
admission of cohabitation, hence making the will invalid on its face. The
Court of Appeals reversed and held that the will is valid except the devise
in favor of the petitioner which is null and void in violation of Art. 739 and
1028.

Issue: Whether or not the court can pass on the intrinsic validity of a
will

RULING: Yes, as an exception. But the general rule is that the court's area
of inquiry is limited to the an examination and resolution of the extrinsic
validity of the will. This general rule is however not inflexible and absolute.
Given exceptional circumstances, the probate court is not powerless to do
what the situation constrains it to do and may pass upon certain provisions
of the will. The will itself admitted on its face the relationship between the
testator and the petitioner.

The will was validly executed in accordance with law but the court didn't
find it to serve a practical purpose to remand the nullified provision in a
separate action for that purpose only since in the probate of a will, the court
does not ordinarily look into the intrinsic validity of its provisions.

The devisee is invalid by virtue of Art. 739 which voids a donation made
between persons guilty of adultery/concubinage at the time of the
donations. Under Art, 1028 it is also prohibited.
G.R. No. L-23079 February 27, 1970

RUBEN AUSTRIA, CONSUELO AUSTRIA-BENTA and LAURO AUSTRIA MOZO, petitioners,

vs.
HON. ANDRES REYES, Judge, Court of First Instance of Rizal, PERFECTO CRUZ, BENITA
CRUZ-MENEZ ISAGANI CRUZ, ALBERTO CRUZ and LUZ CRUZ-SALONGA respondents.

Salonga, Ordoñez, Yap, Sicat and Associates for petitioners.

Ruben Austria for himself and co-petitioners.

De los Santos, De los Santos and De los Santos for respondent Perfecto Cruz.

Villareal, Almacen, Navarra and Amores for other respondents.

CASTRO, J.:

On July 7, 1956 Basilia Austria vda. de Cruz filed with the Court of First Instance of Rizal (Special
Proceedings 2457) a petition for probate, ante mortem, of her last will and testament. The probate
was opposed by the present petitioners Ruben Austria, Consuelo Austria-Benta and Lauro Austria
Mozo, and still others who, like the petitioner, are nephews and nieces of Basilia. This opposition
was, however, dismissed and the probate of the will allowed after due hearing.

The bulk of the estate of Basilia, admittedly, was destined under the will to pass on to the
respondents Perfecto Cruz, Benita Cruz-Meñez, Isagani Cruz, Alberto Cruz, and Luz Cruz-Salonga,
all of whom had been assumed and declared by Basilia as her own legally adopted children.

On April 23, 1959, more than two years after her will was allowed to probate, Basilia died. The
respondent Perfecto Cruz was appointed executor without bond by the same court in accordance
with the provisions of the decedent's will, notwithstanding the blocking attempt pursued by the
petitioner Ruben Austria.

Finally, on November 5, 1959, the present petitioners filed in the same proceedings a petition in
intervention for partition alleging in substance that they are the nearest of kin of Basilia, and that the
five respondents Perfecto Cruz, et al., had not in fact been adopted by the decedent in accordance
with law, in effect rendering these respondents mere strangers to the decedent and without any right
to succeed as heirs.

Notwithstanding opposition by the respondent Perfecto Cruz, as executor of the estate, the court a
quo allowed the petitioners' intervention by its order of December 22, 1959, couched in broad terms,
as follows: "The Petition in Intervention for Partition filed by the above-named oppositors [Ruben
Austria, et al.,] dated November 5, 1959 is hereby granted."

In the meantime, the contending sides debated the matter of authenticity or lack of it of the several
adoption papers produced and presented by the respondents. On motion of the petitioners Ruben
Austria, et al., these documents were referred to the National Bureau of Investigation for
examination and advice. N.B.I. report seems to bear out the genuineness of the documents, but the
petitioners, evidently dissatisfied with the results, managed to obtain a preliminary opinion from a
Constabulary questioned-document examiner whose views undermine the authenticity of the said
documents. The petitioners Ruben Austria, et al., thus moved the lower court to refer the adoption
papers to the Philippine Constabulary for further study. The petitioners likewise located former
personnel of the court which appeared to have granted the questioned adoption, and obtained
written depositions from two of them denying any knowledge of the pertinent adoption proceedings.

On February 6, 1963, more than three years after they were allowed to intervene, the petitioners
Ruben Austria, let al., moved the lower court to set for hearing the matter of the genuineness of the
adoption of the respondents Perfecto Cruz, et al., by the late Basilia. Before the date set by the court
for hearing arrived, however, the respondent Benita Cruz-Meñez who entered an appearance
separately from that of her brother Perfecto Cruz, filed on February 28, 1963 a motion asking the
lower court, by way of alternative relief, to confine the petitioners' intervention, should it be permitted,
to properties not disposed of in the will of the decedent.

On March 4, 1963, the lower court heard the respondent Benita's motion. Both sides subsequently
submitted their respective memoranda, and finally, the lower court issued an order on June 4, 1963,
delimiting the petitioners' intervention to the properties of the deceased which were not disposed of
in the will.

The petitioners moved the lower court to reconsider this latest order, eliciting thereby an opposition,
from the respondents. On October 25, 1963 the same court denied the petitioners' motion for
reconsideration.

A second motion for reconsideration which set off a long exchange of memoranda from both sides,
was summarily denied on April 21, 1964.

Hence this petition for certiorari, praying this Court to annul the orders of June 4 and October 25,
1963 and the order of April 21, 1964, all restricting petitioners' intervention to properties that were
not included in the decedent's testamentary dispositions.

The uncontested premises are clear. Two interests are locked in dispute over the bulk of the estate
of the deceased. Arrayed on one side are the petitioners Ruben Austria, Consuelo Austria-Benta
and Lauro Austria Mozo, three of a number of nephews and nieces who are concededly the nearest
surviving blood relatives of the decedent. On the other side are the respondents brothers and
sisters, Perfecto Cruz, Benita Cruz-Meñez, Isagani Cruz, Alberto Cruz and Luz Cruz-Salonga, all of
whom heirs in the will of the deceased Basilia, and all of whom claim kinship with the decedent by
virtue of legal adoption. At the heart of the controversy is Basilia's last will — immaculate in its
extrinsic validity since it bears the imprimatur of duly conducted probate proceedings.

The complaint in intervention filed in the lower court assails the legality of the tie which the
respondent Perfecto Cruz and his brothers and sisters claim to have with the decedent. The lower
court had, however, assumed, by its orders in question, that the validity or invalidity of the adoption
is not material nor decisive on the efficacy of the institution of heirs; for, even if the adoption in
question were spurious, the respondents Perfecto Cruz, et al., will nevertheless succeed not as
compulsory heirs but as testamentary heirs instituted in Basilia's will. This ruling apparently finds
support in article, 842 of the Civil Code which reads:

One who has no compulsory heirs may dispose of by will all his estate or any part of
it in favor of any person having capacity to succeed.

One who has compulsory heirs may dispose of his estate provided he does not
contravene the provisions of this Code with regard to the legitime of said heirs.
The lower court must have assumed that since the petitioners nephews and niece are not
compulsory heirs, they do not possess that interest which can be prejudiced by a free-wheeling
testamentary disposition. The petitioners' interest is confined to properties, if any, that have not been
disposed of in the will, for to that extent intestate succession can take place and the question of the
veracity of the adoption acquires relevance.

The petitioners nephews and niece, upon the other hand, insist that the entire estate should descend
to them by intestacy by reason of the intrinsic nullity of the institution of heirs embodied in the
decedent's will. They have thus raised squarely the issue of whether or not such institution of heirs
would retain efficacy in the event there exists proof that the adoption of the same heirs by the
decedent is false.

The petitioners cite, as the controlling rule, article 850 of the Civil Code which reads:

The statement of a false cause for the institution of an heir shall be considered as not
written, unless it appears from the will that the testator would not have made such
institution if he had known the falsity of such cause.

Coming closer to the center of the controversy, the petitioners have called the attention of the lower
court and this Court to the following pertinent portions of the will of the deceased which recite:

III

Ang aking mga sapilitang tagapagmana (herederos forzosos) ay ang aking itinuturing
na mga anak na tunay (Hijos legalmente adoptados) na sina Perfecto, Alberto, Luz,
Benita at Isagani, na pawang may apelyidong Cruz.

xxx xxx xxx

Kung ako ay bawian ng Dios ng buhay, ay aking ipinamamana ang aking mga ari-
ariang maiiwan, sa kaparaanang sumusunod:

A.—Aking ipinamamana sa aking nabanggit na limang anak na sina Perfecto,

Alberto, Luz, Benita at Isagani, na pawang may apelyidong Cruz, na parepareho ang
kaparti ng bawa't isa at walang lamangan (en partes iguales), bilang kanilang
sapilitang mana (legiti[ma]), ang kalahati (½) ng aking kaparti sa lahat ng aming ari-
ariang gananciales ng aking yumaong asawang Pedro Cruz na napapaloob sa
Actuacion Especial No. 640 ng Hukumang Unang Dulugan ng Rizal at itinutukoy sa
No. 1 ng parafo IV ng testamentong ito, ang kalahati (½) ng mga lagay na lupa at
palaisdaan na nasa Obando at Polo, Bulacan, na namana ko sa aking yumaong ama
na si Calixto Austria, at ang kalahati (½) ng ilang lagay na lupa na nasa Tinejeros,
Malabon, Rizal, na aking namana sa yumao kong kapatid na si Fausto Austria.

The tenor of the language used, the petitioners argue, gives rise to the inference that the late Basilia
was deceived into believing that she was legally bound to bequeath one-half of her entire estate to
the respondents Perfecto Cruz, et al. as the latter's legitime. The petitioners further contend that had
the deceased known the adoption to be spurious, she would not have instituted the respondents at
all — the basis of the institution being solely her belief that they were compulsory heirs. Proof
therefore of the falsity of the adoption would cause a nullity of the institution of heirs and the opening
of the estate wide to intestacy. Did the lower court then abuse its discretion or act in violation of the
rights of the parties in barring the petitioners nephews and niece from registering their claim even to
properties adjudicated by the decedent in her will?
Before the institution of heirs may be annulled under article 850 of the Civil Code, the following
requisites must concur: First, the cause for the institution of heirs must be stated in the will; second,
the cause must be shown to be false; and third, it must appear from the face of the will that the
testator would not have made such institution if he had known the falsity of the cause.

The petitioners would have us imply, from the use of the terms, "sapilitang tagapagmana"
(compulsory heirs) and "sapilitang mana" (legitime), that the impelling reason or cause for the
institution of the respondents was the testatrix's belief that under the law she could not do otherwise.
If this were indeed what prompted the testatrix in instituting the respondents, she did not make it
known in her will. Surely if she was aware that succession to the legitime takes place by operation of
law, independent of her own wishes, she would not have found it convenient to name her supposed
compulsory heirs to their legitimes. Her express adoption of the rules on legitimes should very well
indicate her complete agreement with that statutory scheme. But even this, like the petitioners' own
proposition, is highly speculative of what was in the mind of the testatrix when she executed her will.
One fact prevails, however, and it is that the decedent's will does not state in a specific or
unequivocal manner the cause for such institution of heirs. We cannot annul the same on the basis
of guesswork or uncertain implications.

And even if we should accept the petitioners' theory that the decedent instituted the respondents
Perfecto Cruz, et al. solely because she believed that the law commanded her to do so, on the false
assumption that her adoption of these respondents was valid, still such institution must stand.

Article 850 of the Civil Code, quoted above, is a positive injunction to ignore whatever false cause
the testator may have written in his will for the institution of heirs. Such institution may be annulled
only when one is satisfied, after an examination of the will, that the testator clearly would not have
made the institution if he had known the cause for it to be false. Now, would the late Basilia have
caused the revocation of the institution of heirs if she had known that she was mistaken in treating
these heirs as her legally adopted children? Or would she have instituted them nonetheless?

The decedent's will, which alone should provide the answer, is mute on this point or at best is vague
and uncertain. The phrases, "mga sapilitang tagapagmana" and "sapilitang mana," were borrowed
from the language of the law on succession and were used, respectively, to describe the class of
heirs instituted and the abstract object of the inheritance. They offer no absolute indication that the
decedent would have willed her estate other than the way she did if she had known that she was not
bound by law to make allowance for legitimes. Her disposition of the free portion of her estate (libre
disposicion) which largely favored the respondent Perfecto Cruz, the latter's children, and the
children of the respondent Benita Cruz, shows a perceptible inclination on her part to give to the
respondents more than what she thought the law enjoined her to give to them. Compare this with the
relatively small devise of land which the decedent had left for her blood relatives, including the
petitioners Consuelo Austria-Benta and Lauro Mozo and the children of the petitioner Ruben Austria.
Were we to exclude the respondents Perfecto Cruz, et al. from the inheritance, then the petitioners
and the other nephews and nieces would succeed to the bulk of the testate by intestacy — a result
which would subvert the clear wishes of the decedent.

Whatever doubts one entertains in his mind should be swept away by these explicit injunctions in the
Civil Code: "The words of a will are to receive an interpretation which will give to every expression
some effect, rather than one which will render any of the expressions inoperative; and of two modes
of interpreting a will, that is to be preferred which will prevent intestacy." 1

Testacy is favored and doubts are resolved on its side, especially where the will evinces an intention
on the part of the testator to dispose of practically his whole estate,2 as was done in this case.
Moreover, so compelling is the principle that intestacy should be avoided and the wishes of the testator
allowed to prevail, that we could even vary the language of the will for the purpose of giving it effect. 3 A
probate court has found, by final judgment, that the late Basilia Austria Vda. de Cruz was possessed of
testamentary capacity and her last will executed free from falsification, fraud, trickery or undue influence.
In this situation, it becomes our duty to give full expression to her will.4

At all events, the legality of the adoption of the respondents by the testatrix can be assailed only in a
separate action brought for that purpose, and cannot be the subject of a collateral attack.5

To the petitioners' charge that the lower court had no power to reverse its order of December 22,
1959, suffice it to state that, as borne by the records, the subsequent orders complained of served
merely to clarify the first — an act which the court could legally do. Every court has the inherent
power to amend and control its processes and orders so as to make them conformable to law and
justices.6 That the court a quo has limited the extent of the petitioners' intervention is also within its
powers as articulated by the Rules of Court.7

ACCORDINGLY, the present petition is denied, at petitioners cost.

Austria v. Reyes

Facts:

1. Basilia Austria executed a will wherein the bulk of her estate was given to the respondents, alll have
been declared by the former as her legally adopted children.

2. During her lifetime, Basilia filed a petition for the probate of her will. It was opposed by the petitioners
who are the nephews and nieces. The opposition was dismissed and the will was allowed.

3. In 1954, the petitioners filed a petition for intervention for partition alleging that they were the nearest
kin of Basilia and that the respondent had not been in fact adopted by the decedent in accordance with
law, hence the latter were strangers with no right to succeed as heirs.

4. The lower court held that the validity or invalidity is not material to the institution of heirs. It held that the
testator was possessed of testamentary capacity and her last will was executed free from falsification,
fraud, trickery or undue influence.

Issue: Whether or not the institution of the heir is valid

RULING: Yes. The general rule is that the falsity of the stated cause for the testamentary institution does
not affect the validity or efficacy of the institution. An exception to the rule is that the falsity will set aide
the institution if certain factors are present. Before the institution of the heirs will be annulled under Art.
850 the following requisites must concur; 1) the cause must be stated in the will, 2) the cause is shown to
be false, and 3) it must appear from the face of the will that the testator would not have made such
institution if he had known the falsity. Moreover, testacy is favored and doubts are resolved on its side
especially when the will shows a clear intention on the part of the testator to dispose of practically his
whole estate as in this case.