07/29/2015

G.R. No. L-26317

January 29, 1927
Estate of Miguel Mamuyac, deceased. FRANCISCO GAGO,
petitioner-appellant, vs.CORNELIO MAMUYAC, AMBROSIO LARIOSA,
FELICIANA BAUZON, and CATALINA MAMUYAC, opponents-appellees.
Nicanor Tavora for appellant.Jose Rivera for appellees.
JOHNSON, J.:
The purpose of this action was to obtain the probation of a last will
and testament of Miguel Mamuyac, who died on the 2d day of January,
1922, in the municipality of Agoo of the Province of La Union. It appears
from the record that on or about the 27th day of July, 1918, the said Miguel
Mamuyac executed a last will and testament (Exhibit A). In the month of
January, 1922, the said Francisco Gago presented a petition in the Court of
First Instance of the Province of La Union for the probation of that will. The
probation of the same was opposed by Cornelio Mamuyac, Ambrosio
Lariosa, Feliciana Bauzon, and Catalina Mamuyac (civil cause No. 1144,
Province of La Union). After hearing all of the parties the petition for the
probation of said will was denied by the Honorable C. M. Villareal on the 2d
day of November, 1923, upon the ground that the deceased had on the
16th day of April, 1919, executed a new will and testament.
On the 21st day of February, 1925, the present action was
commenced. Its purpose was to secure the probation of the said will of the
16th day of April, 1919 (Exhibit 1). To said petition Cornelio Mamuyac,
Ambrosio Lariosa, Feliciana Bauzon, and Catalina Mamuyac presented
their oppositions, alleging (a) that the said will is a copy of the second will
and testament executed by the said Miguel Mamuyac; (b) that the same
had been cancelled and revoked during the lifetime of Miguel Mamuyac
and (c) that the said will was not the last will and testament of the deceased
Miguel Mamuyac.
Upon the issue thus presented, the Honorable Anastacio R. Teodoro,
judge, after hearing the respective parties, denied the probation of said will
of April 16, 1919, upon the ground that the same had been cancelled and
revoked in the year 1920. Judge Teodoro, after examining the evidence
adduced, found that the following facts had been satisfactorily proved:

That Exhibit A is a mere carbon of its original which remained in the

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

With reference to the said cancellation, it may be stated that there is

positive proof, not denied, which was accepted by the lower court, that will
in question had been cancelled in 1920. The law does not require any
evidence of the revocation or cancellation of a will to be preserved. It
therefore becomes difficult at times to prove the revocation or cancellation
of wills. The fact that such cancellation or revocation has taken place must
either remain unproved of be inferred from evidence showing that after due
search the original will cannot be found. Where a will which cannot be
found is shown to have been in the possession of the testator, when last
seen, the presumption is, in the absence of other competent evidence, that
the same was cancelled or destroyed. The same presumption arises where
it is shown that the testator had ready access to the will and it cannot be
found after his death. It will not be presumed that such will has been
destroyed by any other person without the knowledge or authority of the
testator. The force of the presumption of cancellation or revocation by the
testator, while varying greatly, being weak or strong according to the
circumstances, is never conclusive, but may be overcome by proof that the
will was not destroyed by the testator with intent to revoke it.
In view of the fat that the original will of 1919 could not be found after
the death of the testator Miguel Mamuyac and in view of the positive proof
that the same had been cancelled, we are forced to the conclusion that the
conclusions of the lower court are in accordance with the weight of the
evidence. In a proceeding to probate a will the burden of proofs is upon the
proponent clearly to establish not only its execution but its existence.
Having proved its execution by the proponents, the burden is on the
contestant to show that it has been revoked. In a great majority of
instances in which wills are destroyed for the purpose of revoking them
there is no witness to the act of cancellation or destruction and all evidence
of its cancellation perishes with the testator. Copies of wills should be
admitted by the courts with great caution. When it is proven, however, by
proper testimony that a will was executed in duplicate and each copy was
executed with all the formalities and requirements of the law, then the
duplicate may be admitted in evidence when it is made to appear that the
original has been lost and was not cancelled or destroyed by the testator.
(Borromeo vs. Casquijo, G.R. No. L-26063.)1
After a careful examination of the entire record, we are fully
persuaded that the will presented for probate had been cancelled by the
testator in 1920. Therefore the judgment appealed from is hereby affirmed.
And without any finding as to costs, it is so ordered.

Street, Malcolm, Villamor, Ostrand, Romualdez and Villa-Real, JJ.,

concur.
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.
SARMIENTO, J.:
This is not the first time that the parties to this case come to us. In
fact, two other cases directly related to the present one and involving the
same parties had already been decided by us in the past. In G.R. No. L30479, 1 which was a petition for certiorari and mandamus instituted by the
petitioners herein, we dismissed the petition ruling that the more appropriate
remedy of the petitioners is a separate proceeding for the probate of the will in
question. Pursuant to the said ruling, the petitioners commenced in the then
Court of First Instance of Iloilo, Special Proceeding No. 2176, for the probate of
the disputed will, which was opposed by the private respondents presently,
Panfilo and Felino both surnamed Maloto. The trial court dismissed the petition
on April 30, 1970. Complaining against the dismissal, again, the petitioners came
to this Court on a petition for review by certiorari. 2 Acting on the said petition, we
set aside the trial court's order and directed it to proceed to hear the case on the
merits. The trial court, after hearing, found the will to have already been revoked
by the testatrix. Adriana Maloto, and thus, denied the petition. The petitioners
appealed the trial court's decision to the Intermediate Appellate Court which, on
June 7, 1985, affirmed the order. The petitioners' motion for reconsideration of
the adverse decision proved to be of no avail, hence, this petition.

For a better understanding of the controversy, a factual account

would be a great help.

On October 20, 1963, Adriana Maloto died leaving as heirs her niece
and nephews, the petitioners Aldina Maloto-Casiano and Constancio,
Maloto, and the private respondents Panfilo Maloto and Felino Maloto.
Believing that the deceased did not leave behind a last will and testament,
these four heirs commenced on November 4, 1963 an intestate proceeding
for the settlement of their aunt's estate. The case was instituted in the then
Court of First Instance of Iloilo and was docketed as Special Proceeding
No. 1736. However, while the case was still in progress, or to be exact on
February 1, 1964, the parties Aldina, Constancio, Panfilo, and Felino
executed an agreement of extrajudicial settlement of Adriana's estate. The
agreement provided for the division of the estate into four equal parts
among the parties. The Malotos then presented the extrajudicial settlement
agreement to the trial court for approval which the court did on March 21,
1964. That should have signalled the end of the controversy, but,
unfortunately, it had not.
Three years later, or sometime in March 1967, Atty. Sulpicio Palma, a
former associate of Adriana's counsel, the late Atty. Eliseo Hervas,
discovered a document entitled "KATAPUSAN NGA PAGBUBULAT-AN
(Testamento)," dated January 3,1940, and purporting to be the last will and
testament of Adriana. Atty. Palma claimed to have found the testament, the
original copy, while he was going through some materials inside the cabinet
drawer formerly used by Atty. Hervas. The document was submitted to the
office of the clerk of the Court of First Instance of Iloilo on April 1, 1967.
Incidentally, while Panfilo and Felino are still named as heirs in the said will,
Aldina and Constancio are bequeathed much bigger and more valuable
shares in the estate of Adriana than what they received by virtue of the
agreement of extrajudicial settlement they had earlier signed. The will
likewise gives devises and legacies to other parties, among them being the
petitioners Asilo de Molo, the Roman Catholic Church of Molo, and
Purificacion Miraflor.
Thus, on May 24, 1967, Aldina and Constancio, joined by the other
devisees and legatees named in the will, filed in Special Proceeding No.
1736 a motion for reconsideration and annulment of the proceedings
therein and for the allowance of the will When the trial court denied their
motion, the petitioner came to us by way of a petition for certiorari and
mandamus assailing the orders of the trial court . 3 As we stated earlier, we
dismissed that petition and advised that a separate proceeding for the probate of
the alleged will would be the appropriate vehicle to thresh out the matters raised
by the petitioners.

Significantly, the appellate court while finding as inconclusive the

matter on whether or not the document or papers allegedly burned by the
househelp of Adriana, Guadalupe Maloto Vda. de Coral, upon instructions
of the testatrix, was indeed the will, contradicted itself and found that the
will had been revoked. The respondent court stated that the presence of
animus revocandi in the destruction of the will had, nevertheless, been
sufficiently proven. The appellate court based its finding on the facts that
the document was not in the two safes in Adriana's residence, by the
testatrix going to the residence of Atty. Hervas to retrieve a copy of the will
left in the latter's possession, and, her seeking the services of Atty. Palma
in order to have a new will drawn up. For reasons shortly to be explained,
we do not view such facts, even considered collectively, as sufficient bases
for the conclusion that Adriana Maloto's will had been effectively revoked.
There is no doubt as to the testamentary capacity of the testatrix and
the due execution of the will. The heart of the case lies on the issue as to
whether or not the will was revoked by Adriana.
The provisions of the new Civil Code pertinent to the issue can be
found in Article 830.
Art. 830. No will shall be revoked except in the following cases:
(1) By implication of law; or
(2) By some will, codicil, or other writing executed as provided in case
of wills: or
(3) By burning, tearing, cancelling, or obliterating the will with the
intention of revoking it, by the testator himself, or by some other person in
his presence, and by his express direction. If burned, torn cancelled, or
obliterated by some other person, without the express direction of the
testator, the will may still be established, and the estate distributed in
accordance therewith, if its contents, and due execution, and the fact of its
unauthorized destruction, cancellation, or obliteration are established
according to the Rules of Court. (Emphasis Supplied.)
It is clear that the physical act of destruction of a will, like burning in
this case, does not per se constitute an effective revocation, unless the
destruction is coupled with animus revocandi on the part of the testator. It is
not imperative that the physical destruction be done by the testator himself.
It may be performed by another person but under 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. L30479 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.
Yap (Chairman), Melencio-Herrera, and Paras JJ., concur.
Padilla, J., took no part.

EN BANC
G.R. No. L-2538

September 21, 1951

10

Testate Estate of the Deceased MARIANO MOLO Y LEGASPI.

JUANA JUAN VDA. DE MOLO, petitioner-appellee, vs.LUZ, GLICERIA
and CORNELIO MOLO, oppositors-appellants.
Claro M. Recto and Serafin C. Dizon for appellants. Delgado & Flores
for appellee.
BAUTISTA ANGELO, J.:
This is an appeal from an order of the Court of First Instance of Rizal
admitting to probate the last will and testament of the deceased Mariano
Molo y Legaspi executed on August 17, 1918. The oppositors-appellants
brought the case on appeal to this Court for the reason that the value of the
properties involved exceeds P50,000.
Mariano Molo y Legaspi died on January 24, 1941, in the municipality
of Pasay, province of Rizal, without leaving any forced heir either in the
descending or ascending line. He was survived, however, by his wife, the
herein petitioner Juana Juan Vda. de Molo, and by his nieces and nephew,
the oppositors-appellants, Luz Gliceria and Cornelio, all surnamed Molo,
who were the legitimate children of Candido Molo y Legaspi, deceased
brother of the testator. Mariano Molo y Legaspi left two wills, one executed
on August 17, 1918, (Exhibit A) and another executed on June 20, 1939.
(Exhibit I). The later will executed in 1918.
On February 7, 1941, Juana Juan Vda. de Molo, filed in the Court of
First Instance of Rizal a petition, which was docketed as special proceeding
No. 8022 seeking the probate of the will executed by the deceased on June
20, 1939. There being no opposition, the will was probated. However, upon
petition filed by the herein oppositors, the order of the court admitting the
will to probate was set aside and the case was reopened. After hearing, at
which both parties presented their evidence, the court rendered decision
denying the probate of said will on the ground that the petitioner failed to
prove that the same was executed in accordance with law.

11

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.

12

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.

13

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.

14

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.

15

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 .

16

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.

17

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.

18

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.

19

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).

20

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.

21

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.
1wphl.n t

PhilippineLaw.infoJurisprudence1922May
PhilippineLaw.infoJurisprudencePhil.Rep.Vol.43

G.R.No.17714,Inre
EstateofDeLeon.Diazv.
DeLeon,43Phil.413
RepublicofthePhilippinesSUPREMECOURTManila
ENBANC
May31,1922
G.R.No.17714InthemateroftheestateofJesusde
Leon.IGNACIADIAZ,petitionerappellant,vs.ANADE
LEON,opponentappellee.

22

Montinola,Montinola&HontiverosandJoseLopezVito
forappellant.FranciscoA.Delgado,Powell&HillandPadilla
&Treasforappellee.
ROMUALDEZ,J.:
Theonlyquestionraisedinthiscaseiswhetherortothe
willexecutedbyJesusdeLeon,now,wasrevokedbyhim.
Thepetitionerdeniessuchrevocation,whilethecontestant
affirmsthesamebyallegingthatthetestatorrevokedhiswillby
destroyingit,andbyexecutinganotherwillexpresslyrevoking
theformer.
WefindthatthesecondwillExhibit1executedbythe
deceasedisnotclothwithallthenecessaryrequisitesto
constituteasufficientrevocation.
Butaccordingtothestatutegoverningthesubjectinthis
jurisdiction,thedestructionofawillanimo
revocandiconstitutes,initself,asufficientrevocation.(Sec.
623,CodeofCivilProcedure.)
Fromtheevidencesubmittedinthiscase,itappearsthatthe
testator,shortlyaftertheexecutionofthefirstwillinquestion,
askedthatthesamebereturnedtohim.Theinstrumentwas
returnedtothetestatorwhoorderedhisservanttotearthe
document.Thiswasdoneinhispresenceandbeforeanursewho
testifiedtothiseffect.Aftersometime,thetestator,beingasked
byDr.CornelioMapaaboutthewill,saidthatithadbeen
destroyed.

23

Theintentionofrevokingthewillismanifestfromthe
establishedfactthatthetestatorwasanxioustowithdrawor
changetheprovisionshehadmadeinhisfirstwill.Thisfactis
disclosedbythetestator'sownstatementstothewitnessesCanto
andtheMotherSuperioroftheHospitalwherehewasconfined.
Theoriginalwillhereinpresentedforprobatehavingbeen
destroyedwithanimorevocandi,cannotnowbeprobatedasthe
willandlasttestamentofJesusdeLeon.
Judgementisaffirmedwithcostsagainstthepetitioner.So
ordered.
Araullo,C.J.,Malcolm,Avancea,OstrandandJohns,JJ.,
concur.Villamor,J.,tooknopart.

September22,1933
G.R.No.38050InthematterofthewillofDonata
Manahan.TIBURCIAMANAHAN,petitionerappellee,vs.
ENGRACIAMANAHAN,opponentappellant.
J.FernandoRodrigoforappellant.HeraclioH.delPilar
forappellee.
IMPERIAL,J.:
Thisisanappealtakenbytheappellantherein,Engracia
Manahan,fromtheorderoftheCourtoftheFirstInstanceof
BulacandatedJuly1,1932,inthematterofthewillofthe
deceasedDonataManahan,specialproceedingsNo.4162,
denyinghermotionforreconsiderationandnewtrialfiledon
May11,1932.

24

Thefactinthecaseareasfollows:
OnAugust29,1930,TiburciaManahaninstitutedspecial
proceedingsNo.4162,fortheprobateofthewillofthedeceased
DonataManahan,whodiedinBulacan,ProvinceofBulacan,on
August3,1930.Thepetitionerherein,nieceofthetestatrix,was
namedtheexecutrixinsaidwill.Thecourtsetthedateforthe
hearingandthenecessarynoticerequiredbylawwas
accordinglypublished.Onthedayofthehearingofthepetition,
nooppositiontheretowasfiledand,aftertheevidencewas
presented,thecourtenteredthedecreeadmittingthewillto
probateasprayedfor.ThewillwasprobatedonSeptember22,
1930.Thetrialcourtappointedthehereinpetitionerexecutrix
withabondofP1,000,andlikewiseappointedthecommittedon
claimsandappraisal,whereuponthetestamentaryproceedings
followedtheusualcourse.Oneyearandsevenmonthslater,that
is,onMy11,1932,tobeexact,theappellanthereinfileda
motionforreconsiderationandanewtrial,prayingthattheorder
admittingthewilltoprobatebevacatedandtheauthenticated
willdeclarednullandvoidabinitio.Theappelleeherein,
naturallyfiledheroppositiontothepetitionand,afterthe
correspondinghearingthereof,thetrialcourterreditsoverof
denialonJuly1,1932.EngraciaManahan,underthepretextof
appealingfromthislastorder,likewiseappealedfromthe
judgmentadmittingthewilltoprobate.

25

Inthisinstance,theappellantassignsseven(7)alleged
errorsascommittedbythetrialcourt.Insteadofdiscussingthem
onebyone,webelievethat,essentially,herclaimnarrowsdown
tothefollowing:(1)Thatshewasaninterestedpartyinthe
testamentaryproceedingsand,assuch,wasentitledtoand
shouldhavebeennotifiedoftheprobateofthewill;(2)thatthe
court,initsorderofSeptember22,1930,didnotreallyprobate
thewillbutlimiteditselftodecreeingitsauthentication;and(3)
thatthewillisnullandvoidabinitioonthegroundthatthe
externalformalitiesprescribedbytheCodeofCivilProcedure
havenotbeencompliedwithintheexecutionthereof.
Theappellant'sfirstcontentionisobviouslyunfoundedand
untenable.Shewasnotentitledtonotificationoftheprobateof
thewillandneitherhadshetherighttoexpectit,inasmuchas
shewasnotaninterestedparty,nothavingfiledanoppositionto
thepetitionfortheprobatethereof.Herallegationthatshehad
thestatusofanheir,beingthedeceased'ssister,didnotconfer
onhertherighttobenotifiedonthegroundthatthetestatrix
diedleavingawillinwhichtheappellanthasnotbeeninstituted
heir.Furthermore,notbeingaforcedheir,shedidnotacquire
anysuccessionalright.

26

Thesecondcontentionispuerile.Thecourtreallydecreed
theauthenticationandprobateofthewillinquestion,whichis
theonlypronouncementrequiredofthetrialcourtbythelawin
orderthatthewillmaybeconsideredvalidanddulyexecutedin
accordancewiththelaw.Inthephraseologyoftheprocedural
law,thereisnoessentialdifferencebetweentheauthentication
ofawillandtheprobatethereof.Thewordsauthenticationand
probatearesynonymousinthiscase.Allthelawrequiresisthat
thecompetentcourtdeclaredthatintheexecutionofthewillthe
essentialexternalformalitieshavebeencompliedwithandthat,
inviewthereof,thedocument,asawill,isvalidandeffectivein
theeyesofthelaw.
Thelastcontentionoftheappellantmayberefutedmerely
bystatingthat,onceawillhasbeenauthenticatedandadmitted
toprobate,questionsrelativetothevaliditythereofcannomore
beraisedonappeal.Thedecreeofprobateisconclusivewith
respecttothedueexecutionthereofanditcannotimpugnedon
anyofthegroundsauthorizedbylaw,exceptthatoffraud,in
anyseparateorindependentactionorproceedings(sec.625,
CodeofCivilProcedure;Castaedavs.Alemany,3Phil.,426;
Pimentelvs.Palanca,5Phil.,436;Sahagunvs.DeGorostiza,7
Phil.,347;Limjucovs.Ganara,11Phil.,393;Montaanovs.
Suesa,14Phil.,676;InreEstateofJohnson,39Phil.,156;Riera
vs.Palmaroli,40Phil.,105;Austriavs.Ventenilla,21Phil.,
180;Ramirezvs.Gmur,42Phil.,855;andChiongJocSoyvs.
Vao,8Phil.,119).

27

Butthereisanotherreasonwhichpreventstheappellant
hereinfromsuccessfullymaintainingthepresentactionanditis
thatinasmuchastheproceedingsfollowedinatestamentary
caseareinrem,thetrialcourt'sdecreeadmittingthewillto
probatewaseffectiveandconclusiveagainsther,inaccordance
withtheprovisionsofsection306ofthesaidCodeofCivil
Procedurewhichreadsasfollows:
SEC.306.EFFECTOFJUDGMENT.....
1.Incaseofajudgmentororderagainstaspecificthing,or
inrespecttotheprobateofawill,ortheadministrationofthe
estateofadeceasedperson,orinrespecttothepersonal,
political,orlegalconditionorrelationofaparticularpersonthe
judgmentororderisconclusiveuponthetitleofthething,the
willoradministration,ortheconditionorrelationoftheperson:
Provided,Thattheprobateofawillorgrantingoflettersof
administrationshallonlybeprimafacieevidenceofthedeathof
thetestatororintestate;....
Ontheotherhand,weareatalosstounderstandhowit
waspossibleforthehereinappellanttoappealfromtheorderof
thetrialcourtdenyinghermotionforreconsiderationandanew
trial,whichisinterlocutoryincharacter.Inviewofthis
erroneousinterpretation,shesucceededinappealingindirectly
fromtheorderadmittingthewilltoprobatewhichwasentered
oneyearandsevenmonthsago.

28

Beforeclosing,wewishtostatethatitisnottimelyto
discusshereinthevalidityandsufficiencyoftheexecutionof
thewillinquestion.Aswehavealreadysaid,thisquestioncan
nomoreberaisedinthiscaseonappeal.Afterduehearing,the
courtfoundthatthewillinquestionwasvalidandeffectiveand
theorderadmittingittoprobate,thuspromulgated,shouldbe
acceptedandrespectedbyall.Theprobateofthewillin
questionnowconstitutesresjudicata.
Wherefore,theappealtakenhereinisherebydismissed,
withcostsagainsttheappellant.Soordered.
Avancea,C.J.,Malcolm,VillaReal,andHull,JJ.,
concur.

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

29

PEDRO D. H. GALLANOSA, CORAZON GRECIA-GALLONOSA

and ADOLFO FORTAJADA, the deceased Pedro Gallanosa being
substituted by his legal heirs, namely his above-named widow and his
children, ISIDRO GALLANOSA and LEDY GALLANOSA, and
grandchildren named IMELDA TECLA GALLANOSA and ROSARIO
BRIGIDA GALLANOSA, children of the late SIKATUNA GALLANOSA,
son of Pedro D.H. GALLONOSA, petitioners, vs.HON. UBALDO Y.
ARCANGEL, Judge of Branch I of the Court of First Instance of
Sorsogon and FLORENTINO G. HITOSIS, CASIANO G. HITOSIS,
TEOTIMO G. HITOSIS, VICTORIO G. HITOSIS, EMILIA G. HITOSIS VDA.
DE CRUZ, JOAQUIN R. HITOSIS VDA. DE CRUZ, JOAQUIN R. HITOSIS,
FLORENTINO R. HITOSIS, VIRGINIA R. MITOSIS, DEBORAH R.
HITOSIS, EDILBERTO R. HITOSIS, LEONOR R. HITOSIS, NORMA R.
HITOSIS-VILLANUEVA, LEONCIO R. HITOSIS, minors ANGEL R.
HITOSIS and RODOLFO R. HITOSIS, represented by their legal
guardian and mother LOURDES RELUCIO VDA. DE HITOSIS,
PETRONA HITOSIS-BALBIDO, MODESTO HITOSIS-GACILO, CLETO
HITOSIS, AGUSTIN HITOSIS-FORTES, TOMASA HITOSIS-BANARES
VDA. DE BORRAS, CONRADA HITOSIS-BANARES FRANCHE,
RESTITUTO HITOSIS-BANARES, DAMIAN HITOSIS-BANARES, FIDEL
HITOSIS-BANARES, SUSANA HITOSIS-BANARES RODRIGUEZ, JOSE
HITOSIS, LOLITA HITOSIS-BANEGA, minors MILAGROS HITOSISBANEGA, ALICIA HITOSIS-BANEGA AND ELISA HITOSIS-BANEGA,
represented by their legal guardian and father ERNESTO BANEGA,
FELICITAS HITOSIS-PENAFLOR, GENOVEVA HITOSIS-ADRIATICO,
MANUEL HITOSIS, PEDRO HITOSIS, LIBRATA HITOSIS-BALMES,
JUANITA HITOSIS-GABITO VDA. DE GABAS, MAURA HITOSISGABITO VDA. DE GANOLA and LEONA HITOSIS-GABITO GAMBA,
respondents.
Haile Frivaldo for petitioners.
Joaquin R Mitosis for private respondents.
AQUINO, J.:
In this special civil action of certiorari, filed on July 29, 1968, the
petitioners seek to annul the orders of respondent Judge dated May 3 trial
June 17, 1968, wherein he reconsidered his order of January 10, 1968,
dismissing, on the ground of prescription, the complaint in Civil Case No.
2233 of the Court of First Instance of Sorsogon.

30

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."

31

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 dueo 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. Maalac dismiss the complaint on the
ground of res judicata in 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).

32

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.

33

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).

34

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).

35

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 Maalac 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).

36

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: Pealosa 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 Dingle case 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.

37

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.
Fernando (Chairman), Barredo, Antonio, and Santos, JJ., concur.

G.R. No. L-62952 October 9, 1985

SOFIA J. NEPOMUCENO, petitioner, vs.THE HONORABLE COURT
OF APPEALS, RUFINA GOMEZ, OSCAR JUGO ANG, CARMELITA
JUGO, respondents.
GUTIERREZ, JR., J.:
This is a petition for certiorari to set aside that portion of the decision
of the respondent Court of Appeals (now intermediate Appellate Court)
dated June 3, 1982, as amended by the resolution dated August 10, 1982,
declaring as null and void the devise in favor of the petitioner and the
resolution dated December 28, 1982 denying petitioner's motion for
reconsideration.
Martin Jugo died on July 16, 1974 in Malabon, Rizal. He left a last
Will and Testament duly signed by him at the end of the Will on page three
and on the left margin of pages 1, 2 and 4 thereof in the presence of
Celestina Alejandro, Myrna C. Cortez, and Leandro Leano, who in turn,
affixed their signatures below the attestation clause and on the left margin
of pages 1, 2 and 4 of the Will in the presence of the testator and of each
other and the Notary Public. The Will was acknowledged before the Notary
Public Romeo Escareal by the testator and his three attesting witnesses.

38

In the said Will, the testator named and appointed herein petitioner
Sofia J. Nepomuceno as his sole and only executor of his estate. It is
clearly stated in the Will that the testator was legally married to a certain
Rufina Gomez by whom he had two legitimate children, Oscar and
Carmelita, but since 1952, he had been estranged from his lawfully wedded
wife and had been living with petitioner as husband and wife. In fact, on
December 5, 1952, the testator Martin Jugo and the petitioner herein, Sofia
J. Nepomuceno were married in Victoria, Tarlac before the Justice of the
Peace. The testator devised to his forced heirs, namely, his legal wife
Rufina Gomez and his children Oscar and Carmelita his entire estate and
the free portion thereof to herein petitioner. The Will reads in part:
Art. III. That I have the following legal heirs, namely: my
aforementioned legal wife, Rufina Gomez, and our son, Oscar, and
daughter Carmelita, both surnamed Jugo, whom I declare and admit to be
legally and properly entitled to inherit from me; that while I have been
estranged from my above-named wife for so many years, I cannot deny
that I was legally married to her or that we have been separated up to the
present for reasons and justifications known fully well by them:
Art. IV. That since 1952, 1 have been living, as man and wife with one
Sofia J. Nepomuceno, whom I declare and avow to be entitled to my love
and affection, for all the things which she has done for me, now and in the
past; that while Sofia J. Nepomuceno has with my full knowledge and
consent, did comport and represent myself as her own husband, in truth
and in fact, as well as in the eyes of the law, I could not bind her to me in
the holy bonds of matrimony because of my aforementioned previous
marriage;
On August 21, 1974, the petitioner filed a petition for the probate of
the last Will and Testament of the deceased Martin Jugo in the Court of
First Instance of Rizal, Branch XXXIV, Caloocan City and asked for the
issuance to her of letters testamentary.
On May 13, 1975, the legal wife of the testator, Rufina Gomez and
her children filed an opposition alleging inter alia that the execution of the
Will was procured by undue and improper influence on the part of the
petitioner; that at the time of the execution of the Will, the testator was
already very sick and that petitioner having admitted her living in
concubinage with the testator, she is wanting in integrity and thus, letters
testamentary should not be issued to her.

39

On January 6, 1976, the lower court denied the probate of the Will on
the ground that as the testator admitted in his Will to cohabiting with the
petitioner from December 1952 until his death on July 16, 1974, the Will's
admission to probate will be an Idle exercise because on the face of the
Will, the invalidity of its intrinsic provisions is evident.
The petitioner appealed to the respondent-appellate court.
On June 2, 1982, the respondent court set aside the decision of the
Court of First Instance of Rizal denying the probate of the will. The
respondent court declared the Will to be valid except that the devise in
favor of the petitioner is null and void pursuant to Article 739 in relation with
Article 1028 of the Civil Code of the Philippines. The dispositive portion of
the decision reads:
WHEREFORE, the decision a quo is hereby set aside, the will in
question declared valid except the devise in favor of the appellant which is
declared null and void. The properties so devised are instead passed on in
intestacy to the appellant in equal shares, without pronouncement as to
cost.
On June 15, 1982, oppositors Rufina Gomez and her children filed a
"Motion for Correction of Clerical Error" praying that the word "appellant" in
the last sentence of the dispositive portion of the decision be changed to
"appellees" so as to read: "The properties so devised are instead passed
on intestacy to the appellees in equal shares, without pronouncement as to
costs." The motion was granted by the respondent court on August 10,
1982.
On August 23, 1982, the petitioner filed a motion for reconsideration.
This was denied by the respondent court in a resolution dated December
28, 1982.
The main issue raised by the petitioner is whether or not the
respondent court acted in excess of its jurisdiction when after declaring the
last Will and Testament of the deceased Martin Jugo validly drawn, it went
on to pass upon the intrinsic validity of the testamentary provision in favor
of herein petitioner.

40

The petitioner submits that the validity of the testamentary provision

in her favor cannot be passed upon and decided in the probate
proceedings but in some other proceedings because the only purpose of
the probate of a Will is to establish conclusively as against everyone that a
Will was executed with the formalities required by law and that the testator
has the mental capacity to execute the same. The petitioner further
contends that even if the provisions of paragraph 1 of Article 739 of the
Civil Code of the Philippines were applicable, the declaration of its nullity
could only be made by the proper court in a separate action brought by the
legal wife for the specific purpose of obtaining a declaration of the nullity of
the testamentary provision in the Will in favor of the person with whom the
testator was allegedly guilty of adultery or concubinage.
The respondents on the other hand contend that the fact that the last
Will and Testament itself expressly admits indubitably on its face the
meretricious relationship between the testator and the petitioner and the
fact that petitioner herself initiated the presentation of evidence on her
alleged ignorance of the true civil status of the testator, which led private
respondents to present contrary evidence, merits the application of the
doctrine enunciated in Nuguid v. Felix Nuguid, et al. (17 SCRA 449) and
Felix Balanay, Jr. v. Hon. Antonio Martinez, et al. (G.R. No. L- 39247, June
27, 1975). Respondents also submit that the admission of the testator of
the illicit relationship between him and the petitioner put in issue the legality
of the devise. We agree with the respondents.
The respondent court acted within its jurisdiction when after declaring
the Will to be validly drawn, it went on to pass upon the intrinsic validity of
the Will and declared the devise in favor of the petitioner null and void.
The general rule is that in probate proceedings, the court's area of
inquiry is limited to an examination and resolution of the extrinsic validity of
the Will. The rule is expressed thus:
xxx xxx xxx
... It is elementary that a probate decree finally and definitively settles
all questions concerning capacity of the testator and the proper execution
and witnessing of his last Will and testament, irrespective of whether its
provisions are valid and enforceable or otherwise. (Fernandez v. Dimagiba,
21 SCRA 428)

41

The petition below being for the probate of a Will, the court's area of
inquiry is limited to the extrinsic validity thereof. The testators testamentary
capacity and the compliance with the formal requisites or solemnities
prescribed by law are the only questions presented for the resolution of the
court. Any inquiry into the intrinsic validity or efficacy of the provisions of the
will or the legality of any devise or legacy is premature.
xxx xxx xxx
True or not, the alleged sale is no ground for the dismissal of the
petition for probate. Probate is one thing; the validity of the testamentary
provisions is another. The first decides the execution of the document and
the testamentary capacity of the testator; the second relates to descent and
distribution (Sumilang v. Ramagosa, 21 SCRA 1369)
xxx xxx xxx
To establish conclusively as against everyone, and once for all, the
facts that a will was executed with the formalities required by law and that
the testator was in a condition to make a will, is the only purpose of the
proceedings under the new code for the probate of a will. (Sec. 625). The
judgment in such proceedings determines and can determine nothing
more. In them the court has no power to pass upon the validity of any
provisions made in the will. It can not decide, for example, that a certain
legacy is void and another one valid. ... (Castaneda v. Alemany, 3 Phil. 426)
The rule, however, is not inflexible and absolute. Given exceptional
circumstances, the probate court is not powerless to do what the situation
constrains it to do and pass upon certain provisions of the Will.
In Nuguid v. Nuguid (17 SCRA 449) cited by the trial court, the
testator instituted the petitioner as universal heir and completely preterited
her surviving forced heirs. A will of this nature, no matter how valid it may
appear extrinsically, would be null and void. Separate or latter proceedings
to determine the intrinsic validity of the testamentary provisions would be
superfluous.
Even before establishing the formal validity of the will, the Court in
Balanay .Jr. v. Martinez (64 SCRA 452) passed upon the validity of its
intrinsic provisions.
Invoking "practical considerations", we stated:
The basic issue is whether the probate court erred in passing upon
the intrinsic validity of the will, before ruling on its allowance or formal
validity, and in declaring it void.

42

We are of the opinion that in view of certain unusual provisions of the

will, which are of dubious legality, and because of the motion to withdraw
the petition for probate (which the lower court assumed to have been filed
with the petitioner's authorization) the trial court acted correctly in passing
upon the will's intrinsic validity even before its formal validity had been
established. The probate of a will might become an Idle ceremony if on its
face it appears to be intrinsically void. Where practical considerations
demand that the intrinsic validity of the will be passed upon, even before it
is probated, the court should meet the issue (Nuguid v. Nuguid, 64 O.G.
1527, 17 SCRA 449. Compare with Sumilang vs. Ramagosa L-23135,
December 26, 1967, 21 SCRA 1369; Cacho v. Udan L-19996, April 30,
1965, 13 SCRA 693).
There appears to be no more dispute at this time over the extrinsic
validity of the Will. Both parties are agreed that the Will of Martin Jugo was
executed with all the formalities required by law and that the testator had
the mental capacity to execute his Will. The petitioner states that she
completely agrees with the respondent court when in resolving the question
of whether or not the probate court correctly denied the probate of Martin
Jugo's last Will and Testament, it ruled:
This being so, the will is declared validly drawn. (Page 4, Decision,
Annex A of Petition.)
On the other hand the respondents pray for the affirmance of the
Court of Appeals' decision in toto.
The only issue, therefore, is the jurisdiction of the respondent court to
declare the testamentary provision in favor of the petitioner as null and
void.
We sustain the respondent court's jurisdiction. As stated in Nuguid v.
Nuguid, (supra):
We pause to reflect. If the case were to be remanded for probate of
the will, nothing will be gained. On the contrary, this litigation will be
protracted. And for aught that appears in the record, in the record, in the
event of probate or if the court rejects the will, probability exists that the
case will come up once again before us on the same issue of the intrinsic
validity or nullity of the will. Result, waste of time, effort, expense, plus
added anxiety. These are the practical considerations that induce us to a
belief that we might as well meet head-on the issue of the validity of the
provisions of the will in question. (Section 2, Rule 1, Rules of Court. Case,
et al. v. Jugo, et al., 77 Phil. 517, 522). After all, there exists a justiciable
controversy crying for solution.

43

We see no useful purpose that would be served if we remand the

nullified provision to the proper court in a separate action for that purpose
simply because, in the probate of a will, the court does not ordinarily look
into the intrinsic validity of its provisions.
Article 739 of the Civil Code provides:
The following donations shall be void:
(1) Those made between persons who were guilty of adultery or
concubinage at the time of the donation;
(2) Those made between persons found guilty of the same criminal
offense, in consideration thereof;
(3) Those made to a public officer or his wife, descendants and
ascendants, by reason of his office.
In the case referred to in No. 1, the action for declaration of nullity
may be brought by the spouse of the donor or donee; and the guilt of the
donor and donee may be proved by preponderance of evidence in the
same action.
Article 1028 of the Civil Code provides:
The prohibitions mentioned in Article 739, concerning donations inter
vivos shall apply to testamentary provisions.
In Article III of the disputed Will, executed on August 15, 1968, or
almost six years before the testator's death on July 16, 1974, Martin Jugo
stated that respondent Rufina Gomez was his legal wife from whom he had
been estranged "for so many years." He also declared that respondents
Carmelita Jugo and Oscar Jugo were his legitimate children. In Article IV,
he stated that he had been living as man and wife with the petitioner since
1952. Testator Jugo declared that the petitioner was entitled to his love and
affection. He stated that Nepomuceno represented Jugo as her own
husband but "in truth and in fact, as well as in the eyes of the law, I could
not bind her to me in the holy bonds of matrimony because of my
aforementioned previous marriage.
There is no question from the records about the fact of a prior existing
marriage when Martin Jugo executed his Will. There is also no dispute that
the petitioner and Mr. Jugo lived together in an ostensible marital
relationship for 22 years until his death.

44

It is also a fact that on December 2, 1952, Martin Jugo and Sofia J.

Nepomuceno contracted a marriage before the Justice of the Peace of
Victoria, Tarlac. The man was then 51 years old while the woman was 48.
Nepomuceno now contends that she acted in good faith for 22 years in the
belief that she was legally married to the testator.
The records do not sustain a finding of innocence or good faith. As
argued by the private respondents:
First. The last will and testament itself expressly admits indubitably on
its face the meretricious relationship between the testator and petitioner,
the devisee.
Second. Petitioner herself initiated the presentation of evidence on
her alleged ignorance of the true civil status of the testator, which led
private respondents to present contrary evidence.
In short, the parties themselves dueled on the intrinsic validity of the
legacy given in the will to petitioner by the deceased testator at the start of
the proceedings.
Whether or not petitioner knew that testator Martin Jugo, the man he
had lived with as man and wife, as already married, was an important and
specific issue brought by the parties before the trial court, and passed upon
by the Court of Appeals.
Instead of limiting herself to proving the extrinsic validity of the will, it
was petitioner who opted to present evidence on her alleged good faith in
marrying the testator. (Testimony of Petitioner, TSN of August 1, 1982, pp.
56-57 and pp. 62-64).
Private respondents, naturally, presented evidence that would refute
the testimony of petitioner on the point.
Sebastian Jugo, younger brother of the deceased testator, testified at
length on the meretricious relationship of his brother and petitioner. (TSN of
August 18,1975).
Clearly, the good faith of petitioner was by option of the parties made
a decisive issue right at the inception of the case.
Confronted by the situation, the trial court had to make a ruling on the
question.
When the court a quo held that the testator Martin Jugo and petitioner
'were deemed guilty of adultery or concubinage', it was a finding that
petitioner was not the innocent woman she pretended to be.
xxx xxx xxx

45

3. If a review of the evidence must be made nonetheless, then private

respondents respectfully offer the following analysis:
FIRST: The secrecy of the marriage of petitioner with the deceased
testator in a town in Tarlac where neither she nor the testator ever resided.
If there was nothing to hide from, why the concealment' ? Of course, it
maybe argued that the marriage of the deceased with private respondent
Rufina Gomez was likewise done in secrecy. But it should be remembered
that Rufina Gomez was already in the family way at that time and it would
seem that the parents of Martin Jugo were not in favor of the marriage so
much so that an action in court was brought concerning the marriage.
(Testimony of Sebastian Jugo, TSN of August 18, 1975, pp. 29-30)
SECOND: Petitioner was a sweetheart of the deceased testator when
they were still both single. That would be in 1922 as Martin Jugo married
respondent Rufina Gomez on November 29, 1923 (Exh. 3). Petitioner
married the testator only on December 5, 1952. There was a space of
about 30 years in between. During those 30 years, could it be believed that
she did not even wonder why Martin Jugo did not marry her nor contact her
anymore after November, 1923 - facts that should impel her to ask her
groom before she married him in secrecy, especially so when she was
already about 50 years old at the time of marriage.
THIRD: The fact that petitioner broke off from Martin Jugo in 1923 is
by itself conclusive demonstration that she new that the man she had
openly lived for 22 years as man and wife was a married man with already
two children.
FOURTH: Having admitted that she knew the children of respondent
Rufina Gomez, is it possible that she would not have asked Martin Jugo
whether or not they were his illegitimate or legitimate children and by
whom? That is un-Filipino.
FIFTH: Having often gone to Pasig to the residence of the parents of
the deceased testator, is it possible that she would not have known that the
mother of private respondent Oscar Jugo and Carmelita Jugo was
respondent Rufina Gomez, considering that the houses of the parents of
Martin Jugo (where he had lived for many years) and that of respondent
Rufina Gomez were just a few meters away?

46

Such pretentions of petitioner Sofia Nepomuceno are unbelievable.

They are, to say the least, inherently improbable, for they are against the
experience in common life and the ordinary instincts and promptings of
human nature that a woman would not bother at all to ask the man she was
going to marry whether or not he was already married to another, knowing
that her groom had children. It would be a story that would strain human
credulity to the limit if petitioner did not know that Martin Jugo was already
a married man in view of the irrefutable fact that it was precisely his
marriage to respondent Rufina Gomez that led petitioner to break off with
the deceased during their younger years.
Moreover, the prohibition in Article 739 of the Civil Code is against the
making of a donation between persons who are living in adultery or
concubinage. It is the donation which becomes void. The giver cannot give
even assuming that the recipient may receive. The very wordings of the
Will invalidate the legacy because the testator admitted he was disposing
the properties to a person with whom he had been living in concubinage.
WHEREFORE, the petition is DISMISSED for lack of merit. The
decision of the Court of Appeals, now Intermediate Appellate Court, is
AFFIRMED. No costs.
SO ORDERED.
Teehankee (Chairman), Melencio-Herrera, Plana, Relova, De la
Fuente and Patajo, JJ., concur.
G.R. No. L-48840 December 29, 1943
ERNESTO M. GUEVARA, petitioner-appellant, vs.ROSARIO
GUEVARA and her husband PEDRO BUISON, respondent-appellees.
Primacias, Abad, Mencias & Castillo for appellant.Pedro C. Quinto for
appellees.
OZAETA, J.:

47

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.
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:
1awphil.net

48

(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 dueo de la mitad norte de la
totalidad y conjunto de los referidos terrenos por haberlos comprado de su
propio peculio del Sr. Rafael T. Puzon a quien habia vendido con
anterioridad."

49

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.

50

Two principal questions are before us for determination: (1) the

legality of the procedure adopted by the plaintiff (respondent herein)
Rosario Guevara; and (2) the efficacy of the deed of sale exhibit 2 and the
effect of the certificate of title issued to the defendant (petitioner herein)
Ernesto M. Guevara.
I
We cannot sanction the procedure adopted by the respondent
Rosario Guevara, it being in our opinion in violation of procedural law and
an attempt to circumvent and disregard the last will and testament of the
decedent. The Code of Civil Procedure, which was in force up to the time
this case was decided by the trial court, contains the following pertinent
provisions:
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.

51

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
(Leao vs. Leao, supra), which is now sanctioned by section 1 of Rule 74
of the Rules of Court. Besides, section 6 of Rule 124 provides that, if the
procedure which the court ought to follow in the exercise of its jurisdiction is
not specifically pointed out by the Rules of Court, any suitable process or
mode of procedure may be adopted which appears most consistent to the
spirit of the said Rules. Hence, we declare the action instituted by the
plaintiff to be in accordance with law.

52

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.

53

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.

54

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

55

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 Leao case, by holding that an
extrajudicial partition is not proper in testate succession. In the Riosa case
the Court, speaking thru Chief Justice Avancea, held:
1. EXTRAJUDICIAL PARTITION; NOT PROPER IN TESTATE
SUCCESSION. Section 596 of the Code of Civil Procedure, authorizing
the heirs of a person who dies intestate to make extrajudicial partition of the
property of the deceased, without going into any court of justice, makes
express reference to intestate succession, and therefore excludes testate
succession.
2. ID.; EFFECTS OF; TESTATE SUCCESSION. In the instant
case, which is a testate succession, the heirs made an extrajudicial
partition of the estate and at the same time instituted proceeding for the
probate of the will and the administration of the estate. When the time
came for making the partition, they submitted to the court the extrajudicial
partition previously made by them, which the court approved. Held: That for
the purposes of the reservation and the rights and obligations created
thereby, in connection with the relatives benefited, the property must not be
deemed transmitted to the heirs from the time the extrajudicial partition was
made, but from the time said partition was approved by the court.
(Syllabus.)

56

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

57

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:

58

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.

59

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.

60

Wherefore, that part of the decision of the Court of Appeals which

declares in effect that notwithstanding exhibit 2 and the issuance of original
certificate of title No. 51691 in the name of Ernesto M. Guevara, one half of
the land described in said certificate of title belongs to the estate of
Victorino L. Guevara and the other half to Ernesto M. Guevara in
consideration of the latter's assumption of the obligation to pay all the debts
of the deceased, is hereby affirmed; but the judgment of said court insofar
as it awards any relief to the respondent Rosario Guevara in this action is
hereby reversed and set aside, and the parties herein are hereby ordered
to present the document exhibit A to the proper court for probate in
accordance with law, without prejudice to such action as the provincial
fiscal of Pangasinan may take against the responsible party or parties
under section 4 of Rule 76. After the said document is approved and
allowed by the court as the last will and testament of the deceased
Victorino L. Guevara, the heirs and legatees therein named may take such
action, judicial or extrajudicial, as may be necessary to partition the estate
of the testator, taking into consideration the pronouncements made in part
II of this opinion. No finding as to costs in any of the three instances.
Yulo, C.J., and Hontiveros, 1 J., concur.
G.R. No. 168156
December 6, 2006
HEIRS OF ROSENDO LASAM, Represented by Rogelio Lasam
and Atty. Edward P. Llonillo, petitioners, vs.VICENTA UMENGAN,
respondent.
DECISION
CALLEJO, SR., J.:
Before the Court is the petition for review on certiorari filed by the
Heirs of Rosendo Lasam, represented by Rogelio M. Lasam and Atty.
Edward P. Llonillo, seeking the reversal of the Decision 1 dated February 16,
2005 of the Court of Appeals (CA) in CA-G.R. SP No. 80032. The assailed
decision reversed and set aside the decision of the Regional Trial Court
(RTC) of Tuguegarao City, Cagayan and dismissed, for lack of merit, the
complaint for unlawful detainer file by the said heirs against respondent
Vicenta Umengan.

61

The RTC decision affirmed that of the Municipal Trial Court in Cities
(MTCC) of the same city, Branch III, which had rendered judgment in favor
of the heirs of Rosendo Lasam and directed the ejectment of respondent
Vicenta Umengan from the lot subject of litigation.
The present petition likewise seeks the reversal of the CA Resolution
dated May 17, 2005 denying the motion for reconsideration filed by the
heirs of Rosendo Lasam.
As culled from the records, the backdrop of the present case is as
follows
The lot subject of the unlawful detainer case is situated in
Tuguegarao City, Cagayan. It is the eastern half portion of Lot No. 5427
and Lot No. 990. The first lot, Lot No. 5427 containing an area of 1,037
square meters, is covered by Original Certificate of Title (OCT) No. 196.
The second lot, Lot No. 990 containing an area of 118 sq m, is covered by
OCT No. 1032. These lots are registered in the names of the original
owners, spouses Pedro Cuntapay and Leona Bunagan.
In an instrument denominated as Deed of Confirmation and
acknowledged before a notary public on June 14, 1979, the heirs of the
said spouses conveyed the ownership of Lots Nos. 990 and 5427 in favor
of their two children, Irene Cuntapay and Isabel Cuntapay. In another
instrument entitled Partition Agreement and acknowledged before a notary
public on December 28, 1979, it was agreed that the eastern half portion
(subject lot) of Lots Nos. 990 and 5427 shall belong to the heirs of Isabel
Cuntapay. On the other hand, the remaining portion thereof (the west
portion) shall belong to the heirs of Irene Cuntapay. The subject lot (eastern
half portion) has an area of 554 sq m.
Isabel Cuntapay had four children by her first husband, Domingo
Turingan, namely: Abdon, Sado (deceased), Rufo and Maria. When
Domingo Turingan passed away, Isabel Cuntapay remarried Mariano
Lasam. She had two other children by him, namely: Trinidad and Rosendo.
Sometime in January 2001, the heirs of Rosendo Lasam (son of
Isabel Cuntapay by her second husband) filed with the MTCC a complaint
for unlawful detainer against Vicenta Umengan, who was then occupying
the subject lot. Vicenta Umengan is the daughter of Abdon Turingan (son of
Isabel Cuntapay by her first husband).

62

In their complaint, the heirs of Rosendo Lasam alleged that they are
the owners of the subject lot, having inherited it from their father. Rosendo
Lasam was allegedly the sole heir of the deceased Pedro Cuntapay
through Isabel Cuntapay. During his lifetime, Rosendo Lasam allegedly
temporarily allowed Vicenta Umengan to occupy the subject lot sometime
in 1955. The latter and her husband allegedly promised that they would
vacate the subject lot upon demand. However, despite written notice and
demand by the heirs of Rosendo Lasam, Vicenta Umengan allegedly
unlawfully refused to vacate the subject lot and continued to possess the
same. Accordingly, the heirs of Rosendo Lasam were constrained to
institute the action for ejectment.
In her Answer with Counterclaim, Vicenta Umengan specifically
denied the material allegations in the complaint. She countered that when
Isabel Cuntapay passed away, the subject lot was inherited by her six
children by her first and second marriages through intestate succession.
Each of the six children allegedly had a pro indiviso share of 1/6 of the
subject lot.
It was further alleged by Vicenta Umengan that her father, Abdon
Turingan, purchased the respective 1/6 shares in the subject lot of his
siblings Maria and Sado. These conveyances were allegedly evidenced by
the Deed of Sale dated March 3, 1975, appearing as Doc. No. 88, Page
No. 36, Book No. XIV, series of 1975 of the notarial book of Atty. Pedro
Lagui.
Prior thereto, Rufo already sold his 1/6 share in the subject lot to
Vicenta Umengan and her husband as evidenced by the Deed of Sale
dated June 14, 1961, appearing as Doc. No. 539, Page No. 41, Book No.
V, series of 1961 of the notarial book of Atty. Pedro Lagui. Also on June 14,
1961, Abdon donated his 1/6 share in the subject lot to her daughter
Vicenta Umengan as evidenced by the Deed of Donation appearing as
Doc. No. 538, Page No. 41, Book No. V, series of 1961 of the notarial book
of the same notary public.
According to Vicenta Umengan, the children of Isabel Cuntapay by
her second husband (Rosendo and Trinidad Lasam) own only 2/6 portion of
the subject lot. She thus prayed that the complaint for ejectment be
dismissed and that the heirs of Rosendo Lasam be ordered to pay her
damages.

63

The MTCC rendered judgment in favor of the heirs of Rosendo

Lasam and directed the ejectment of Vicenta Umengan. In so ruling, the
MTCC gave credence to the newly discovered last will and testament
(entitled Testamento Abierto) purportedly executed by Isabel Cuntapay
where she bequeathed the subject lot to her son, Rosendo Lasam, thus:
x x x my share 1/5th (one-fifth) of the Cuntapay heirs, bordered on the
North by Sr. Elia Canapi; to the South, by Calle Aguinaldo; to the East, by
Calle P. Burgos and the West, by the late Don Luis Alonso; on the property
which is my share stands a house of light materials where I presently
reside; this 1/5th (one-fifth) share of my inheritance from the Cuntapays I
leave to my son Rosendo Lasam and also the aforementioned house of
light material x x x2
The MTCC reasoned that the heirs of Rosendo Lasam anchored their
claim over the subject lot on the last will and testament of Isabel Cuntapay
while Vicenta Umengan hinged hers on intestate succession and legal
conveyances. Citing jurisprudence3 and Article 10804 of the Civil Code, the
MTCC opined that testacy was favored and that intestacy should be
avoided and the wishes of the testator should prevail. It observed that the
last will and testament of Isabel Cuntapay was not yet probated as required
by law; nonetheless, the institution of a probate proceeding was not barred
by prescription.
With the finding that the subject lot was already bequeathed by Isabel
Cuntapay to Rosendo Lasam, the MTCC held that the siblings Abdon,
Sado, Rufo and Maria Turingan no longer had any share therein.
Consequently, they could not convey to Vicenta Umengan what they did not
own. On the issue then of who was entitled to possession of the subject lot,
the MTCC ruled in favor of the heirs of Rosendo Lasam as it found that
Vicenta Umengans possession thereof was by mere tolerance. The
dispositive portion of the MTCC decision reads:
WHEREFORE, in the light of the foregoing considerations, this Court
Resolve[d] to order the EJECTMENT of VICENTA T. UMENGAN and in her
place INSTITUTE THE HEIRS OF ROSENDO LASAM.
It is further ordered the defendant shall pay the Heirs of Rosendo
Lasam the sum of P500.00 pesos representing the monthly rental of the
land from August 2000 to the time this case shall have been terminated.
Ordering the defendant to pay the plaintiffs the amount of P20,000.00
attorneys fees plus cost of this litigation.
So Ordered.5

64

On appeal, the RTC affirmed in toto the decision of the MTCC. The
RTC echoed the reasoning of the MTCC that the testamentary disposition
of the property of Isabel Cuntapay should be respected, and that the heirs
of Rosendo Lasam have a better right to possess the subject lot.
Undaunted, Vicenta Umengan filed an appeal with the CA. She
argued that the MTCC had no jurisdiction over the case as it involved the
recovery of ownership of the subject lot, not merely recovery of possession
or unlawful detainer. She also assailed the RTCs and the MTCCs holding
that the purported Testamento Abierto of Isabel Cuntapay prevails over
Vicenta Umengans muniments of title and, consequently, the heirs of
Rosendo Lasam have a better right to the subject lot than Vicenta
Umengan.
In the assailed Decision dated February 16, 2005, the CA reversed
and set aside the decision of the RTC. The appellate court preliminarily
upheld the jurisdiction of the MTCC over the subject matter as it found that
the allegations in the complaint made out a case for unlawful detainer. The
heirs of Rosendo Lasam in their complaint, according to the CA, only
sought for Vicenta Umengan to vacate and surrender possession of the
subject lot. The CA also rejected the contention of the heirs of Rosendo
Lasam that the issue of ownership of the subject lot had already been
settled in another case, Civil Case No. 4917, before RTC (Branch 3) of
Tuguegarao City. The CA stated that the trial courts order dismissing the
said case was not a "judgment on the merits" as to constitute res judicata.
However, the CA declared that the RTC, as well as the MTCC, erred
in ruling that, by virtue of the purported last will and testament of Isabel
Cuntapay, the heirs of Rosendo Lasam have a better right to the subject lot
over Vicenta Umengan. The CA explained that the said last will and
testament did not comply with the formal requirements of the law on wills. 6

65

Specifically, the CA found that the pages of the purported last will and
testament were not numbered in accordance with the law. Neither did it
contain the requisite attestation clause. Isabel Cuntapay as testator and the
witnesses to the will did not affix their respective signatures on the second
page thereof. The said instrument was likewise not acknowledged before a
notary public by the testator and the witnesses. The CA even raised doubts
as to its authenticity, noting that while Isabel Cuntapay died in 1947 and the
heirs of Rosendo Lasam claimed that they discovered the same only in
1997, a date May 19, 1956 appears on the last page of the purported
will. The CA opined that if this was the date of execution, then the will was
obviously spurious. On the other hand, if this was the date of its discovery,
then the CA expressed bafflement as to why the heirs of Rosendo Lasam,
through their mother, declared in the Partition Agreement dated December
28, 1979 that Isabel Cuntapay died intestate.
It was observed by the CA that as against these infirmities in the
claim of the heirs of Rosendo Lasam, Vicenta Umengan presented a Deed
of Sale and a Deed of Donation to justify her possession of the subject lot.
The CA noted that she has also possessed the subject property since
1955. Such prior possession, the CA held, gave Vicente Umengan the right
to remain in the subject lot until a person with a better right lawfully ejects
her. The heirs of Rosendo Lasam do not have such a better right. The CA
stressed that the ruling on the issue of physical possession does not affect
the title to the subject lot nor constitute a binding and conclusive
adjudication on the merits on the issue of ownership. The parties are not
precluded from filing the appropriate action to directly contest the
ownership of or the title to the subject lot.
The decretal portion of the assailed decision of the CA reads:
WHEREFORE, premises considered, the appeal is GRANTED. The
August 29, 2003 decision of the RTC, Branch 1, Tuguegarao City, Cagayan
in Civil Case No. 5924 is hereby REVERSED and SET ASIDE. Private
respondents complaint for unlawful detainer against petitioner is dismissed
for lack of merit.
SO ORDERED.7
The heirs of Rosendo Lasam sought the reconsideration thereof but
their motion was denied by the CA in its Resolution dated May 17, 2005.
The heirs of Rosendo Lasam (petitioners) now come to the Court
alleging that the CA committed reversible error in setting aside the decision
of the RTC, which had affirmed that of the MTCC, and dismissing their
complaint for unlawful detainer against respondent Vicenta Umengan.

66

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

67

It is also the contention of petitioners that the CA should have

dismissed outright respondents petition filed therewith for failure to comply
with the technical requirements of the Rules of Court. Specifically, the
petition was not allegedly properly verified, lacked statement of material
dates and written explanation on why personal service was not made.
This last contention of petitioners deserves scant consideration. The
technical requirements for filing an appeal are not sacrosanct. It has been
held that while the requirements for perfecting an appeal must be strictly
followed as they are considered indispensable interdictions against
needless delays and for orderly discharge of judicial business, the law does
admit of exceptions when warranted by circumstances. 8 In the present
case, the CA cannot be faulted in choosing to overlook the technical
defects of respondents appeal. After all, technicality should not be allowed
to stand in the way of equitably and completely resolving the rights and
obligations of the parties.9
The Court shall now resolve the substantive issues raised by
petitioners.
It is well settled that in ejectment suits, the only issue for resolution is
the physical or material possession of the property involved, independent of
any claim of ownership by any of the party litigants. However, the issue of
ownership may be provisionally ruled upon for the sole purpose of
determining who is entitled to possession de facto.10
In the present case, petitioners base their claim of right to possession
on the theory that their father, Rosendo Lasam, was the sole owner of the
subject lot by virtue of the newly discovered last will and testament of
Isabel Cuntapay bequeathing the same to him. Respondent is allegedly
holding the subject lot by mere tolerance of Rosendo Lasam and, upon the
petitioners formal demand on her to vacate the same, respondents right to
possess it has expired.
On the other hand, respondent hinges her claim of possession on the
legal conveyances made to her by the children of Isabel Cuntapay by her
first husband, namely, Maria, Rufo, Sado and Abdon. These conveyances
were made through the sale and donation by the said siblings of their
respective portions in the subject lot to respondent as evidenced by the
pertinent deeds.
The CA correctly held that, as between the respective claims of
petitioners and respondent, the latter has a better right to possess the
subject lot.

68

As earlier stated, petitioners rely on the last will and testament of

Isabel Cuntapay that they had allegedly newly discovered. On the basis of
this instrument, the MTCC and RTC ruled that petitioners have a better
right to the possession of the subject lot because, following the law on
succession, it should be respected and should prevail over intestate
succession.
However, contrary to the ruling of the MTCC and RTC, the purported
last will and testament of Isabel Cuntapay could not properly be relied upon
to establish petitioners right to possess the subject lot because, without
having been probated, the said last will and testament could not be the
source of any right.
Article 838 of the Civil Code is instructive:
Art. 838. No will shall pass either real or personal property unless it is
proved and allowed in accordance with the Rules of Court.
The testator himself may, during his lifetime, petition the court having
jurisdiction for the allowance of his will. In such case, the pertinent
provisions of the Rules of Court for the allowance of wills after the testators
death shall govern.
The Supreme Court shall formulate such additional Rules of Court as
may be necessary for the allowance of wills on petition of the testator.
Subject to the right of appeal, the allowance of the will, either during
the lifetime of the testator or after his death, shall be conclusive as to its
due execution.
In Caiza v. Court of Appeals,11 the Court ruled that: "[a] will is
essentially ambulatory; at any time prior to the testators death, it may be
changed or revoked; and until admitted to probate, it has no effect
whatever and no right can be claimed thereunder, the law being quite
explicit: No will shall pass either real or personal property unless it is
proved and allowed in accordance with the Rules of Court." 12
Dr. Tolentino, an eminent authority on civil law, also explained that
"[b]efore any will can have force or validity it must be probated. To probate
a will means to prove before some officer or tribunal, vested by law with
authority for that purpose, that the instrument offered to be proved is the
last will and testament of the deceased person whose testamentary act it is
alleged to be, and that it has been executed, attested and published as
required by law, and that the testator was of sound and disposing mind. It is
a proceeding to establish the validity of the will." 13 Moreover, the
presentation of the will for probate is mandatory and is a matter of public
policy.14

69

Following the above truisms, the MTCC and RTC, therefore,

erroneously ruled that petitioners have a better right to possess the subject
lot on the basis of the purported last will and testament of Isabel Cuntapay,
which, to date, has not been probated. Stated in another manner, Isabel
Cuntapays last will and testament, which has not been probated, has no
effect whatever and petitioners cannot claim any right thereunder.
Hence, the CA correctly held that, as against petitioners claim,
respondent has shown a better right of possession over the subject lot as
evidenced by the deeds of conveyances executed in her favor by the
children of Isabel Cuntapay by her first marriage.
Contrary to the claim of petitioners, the dismissal of respondents
action for partition in Civil Case No. 4917 before the RTC (Branch 3) of
Tuguegarao City does not constitute res judicata on the matter of the
validity of the said conveyances or even as to the issue of the ownership of
the subject lot. The order dismissing respondents action for partition in Civil
Case No. 4917 stated thus:
For resolution is a motion to dismiss based on defendants [referring
to the petitioners herein] affirmative defenses consisting inter alia in the
discovery of a last will and testament of Isabel Cuntapay, the original owner
of the land in dispute.
xxx
It appears, however, that the last will and testament of the late Isabel
Cuntapay has not yet been allowed in probate, hence, there is an
imperative need to petition the court for the allowance of said will to
determine once and for all the proper legitimes of legatees and devisees
before any partition of the property may be judicially adjudicated.
It is an elementary rule in law that testate proceedings take
precedence over any other action especially where the will evinces the
intent of the testator to dispose of his whole estate.
With the discovery of the will of the late Isabel Cuntapay in favor of
the defendants, the Court can order the filing of a petition for the probate of
the same by the interested party.
WHEREFORE, in light of the foregoing considerations, let the aboveentitled case be as it is hereby DISMISSED.
SO ORDERED.15

70

For there to be res judicata, the following elements must be present:

(1) finality of the former judgment; (2) the court which rendered it had
jurisdiction over the subject matter and the parties; (3) it must be a
judgment on the merits; and (4) there must be, between the first and
second actions, identity of parties, subject matter and causes of action. 16
The third requisite, i.e., that the former judgment must be a judgment on
the merits, is not present between the action for partition and the complaint
a quo for unlawful detainer. As aptly observed by the CA:
Our reading of the Orders (dated June 16, 1997 and October 13,
1997) in Civil Case No. 4917 reveals that the RTC, Branch 3, Tuguegarao,
Cagayan, dismissed the complaint for partition because of the discovery of
the alleged last will and testament of Isabel Cuntapay. The court did not
declare respondents [referring to the petitioners herein] the owners of the
disputed property. It simply ordered them to petition the court for the
allowance of the will to determine the proper legitimes of the heirs prior to
any partition. Instead of filing the appropriate petition for the probate of
Isabel Cuntapays will, the respondents filed the present complaint for
unlawful detainer. Viewed from this perspective, we have no doubt that the
courts Orders cited by the respondents are not "judgments on the merits"
that would result in the application of the principle of res judicata. Where
the trial court merely refrained from proceeding with the case and granted
the motion to dismiss with some clarification without conducting a trial on
the merits, there is no res judicata.17
Further, it is not quite correct for petitioners to contend that the
children of Isabel Cuntapay by her first marriage could not have conveyed
portions of the subject lot to respondent, as she had claimed, because until
the present, it is still covered by OCT Nos. 196 and 1032 under the names
of Pedro and Leona Cuntapay. To recall, it was already agreed by the heirs
of the said spouses in a Partition Agreement dated December 28, 1979 that
the subject lot would belong to Isabel Cuntapay. The latter died leaving her
six children by both marriages as heirs. Considering that her purported last
will and testament has, as yet, no force and effect for not having been
probated, her six children are deemed to be co-owners of the subject lot
having their respective pro indiviso shares. The conveyances made by the
children of Isabel Cuntapay by her first marriage of their respective pro
indiviso shares in the subject lot to respondent are valid because the law
recognizes the substantive right of heirs to dispose of their ideal share in
the co-heirship and/co-ownership among the heirs. The Court had
expounded the principle in this wise:

71

This Court had the occasion to rule that there is no doubt that an heir
can sell whatever right, interest, or participation he may have in the
property under administration. This is a matter which comes under the
jurisdiction of the probate court.
The right of an heir to dispose of the decedents property, even if the
same is under administration, is based on the Civil Code provision stating
that the possession of hereditary property is deemed transmitted to the heir
without interruption and from the moment of the death of the decedent, in
case the inheritance is accepted. Where there are however, two or more
heirs, the whole estate of the decedent is, before its partition, owned in
common by such heirs.
The Civil Code, under the provisions of co-ownership, further qualifies
this right. Although it is mandated that each co-owner shall have the full
ownership of his part and of the fruits and benefits pertaining thereto, and
thus may alienate, assign or mortgage it, and even substitute another
person in its enjoyment, the effect of the alienation or the mortgage, with
respect to the co-owners, shall be limited to the portion which may be
allotted to him in the division upon the termination of the co-ownership. In
other words, the law does not prohibit a co-owner from selling, alienating or
mortgaging his ideal share in the property held in common.
As early as 1942, this Court has recognized said right of an heir to
dispose of property under administration. In the case of Teves de
Jakosalem vs. Rafols, et al., it was said that the sale made by an heir of his
share in an inheritance, subject to the result of the pending administration,
in no wise, stands in the way of such administration. The Court then relied
on the provision of the old Civil Code, Article 440 and Article 399 which are
still in force as Article 533 and Article 493, respectively, in the new Civil
Code. The Court also cited the words of a noted civilist, Manresa: "Upon
the death of a person, each of his heirs becomes the undivided owner of
the whole estate left with respect to the part or portion which might be
adjudicated to him, a community of ownership being thus formed among
the co-owners of the estate which remains undivided." 18

72

Contrary to the assertion of petitioners, therefore, the conveyances

made by the children of Isabel Cuntapay by her first marriage to
respondent are valid insofar as their pro indiviso shares are concerned.
Moreover, the CA justifiably held that these conveyances, as evidenced by
the deed of donation and deed of sale presented by respondent, coupled
with the fact that she has been in possession of the subject lot since 1955,
establish that respondent has a better right to possess the same as against
petitioners whose claim is largely based on Isabel Cuntapays last will and
testament which, to date, has not been probated; hence, has no force and
effect and under which no right can be claimed by petitioners. Significantly,
the probative value of the other evidence relied upon by petitioners to
support their claim, which was the affidavit of Heliodoro Turingan, was not
passed upon by the MTCC and the RTC. Their respective decisions did not
even mention the same.
In conclusion, it is well to stress the CAs admonition that
x x x our ruling on the issue of physical possession does not affect
title to the property nor constitute a binding and conclusive adjudication on
the merits on the issue of ownership. The parties are not precluded from
filing the appropriate action directly contesting the ownership of or the title
to the property.19
Likewise, it is therefore in this context that the CAs finding on the
validity of Isabel Cuntapays last will and testament must be considered.
Such is merely a provisional ruling thereon for the sole purpose of
determining who is entitled to possession de facto.
WHEREFORE, premises considered, the petition is DENIED. The
assailed Decision dated February 16, 2005 and the Resolution dated May
17, 2005 of the Court of Appeals in CA-G.R. SP No. 80032 are AFFIRMED.
SO ORDERED.
Panganiban, C.J. (Chairperson), Ynares-Santiago, Austria-Martinez,
and Chico-Nazario, JJ., concur.