1.) [G.R. No. 48840. December 29, 1943.
December 29, 1943.] dispose of his property by will in accordance with law and to protect the rights
ERNESTO M. GUEVARA, Petitioner-Appellant, v. ROSARIO GUEVARA
and her husband PEDRO BUISON, Respondents-Appellees.
Primicias, Abad, Mencias & Castillo for Appellant.
Pedro C. Quinto for Appellees.
SYLLABUS
1. WILLS; PRESENTATION OF WILL FOR PROBATE IS MANDATORY;
SETTLEMENT OF ESTATE ON BASIS OF INTESTACY WHEN DECEDENT
LEFT A WILL, AGAINST THE LAW. — 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 do 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.
2. ID.; ID.; ID. — Even if the decedent left no debts and nobody 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 of 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
and substituted by any other proceeding, judicial or extrajudicial, without
offending against public policy designed to effectuate the testator’s right to
SUCCESSION (Allowance and Disallowance of Wills Cases)
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 reivindicacion or
partition.
3. TORRENS REGISTRATION; REGISTRATION DOES NOT AFFECT
RIGHTS OF PARTITION BETWEEN LEGATEES. — It results that the
interested parties consented to the registration of the land in question in the
name of E. M. G. 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 v. Severino, 44 Phil., 343, and the
cases therein cited.
DECISION
OZAETA, J.:
Ernesto M. Guevara and Rosario Guevara, legitimate 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. Guevara — and to
Page 1
order the latter to pay her P6,000 plus P2,000 a year as damages for herederos como sigue:jgc:chanrobles.com.ph
withholding such legitime from her. The defendant answered the complaint
contending that whatever right or rights the plaintiff might have had, had "A mi hijo legitimo, Ernesto M. Guevara, ciento ocho (108) hectareas, ocho
been barred by the operation of law. (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
It appears that on August 26, 1931, Victorino L. Guevara executed a will del testamento, como su propiedad absoluta y exclusiva, en la cual
(exhibit A), apparently with all the formalities of the law, wherein he made the extension superficial estan incluidas cuarenta y tres (43) hectareas, veintitres
following bequests: To his stepdaughter Candida Guevara, a pair of earrings (23) areas y cuarenta y dos (42) centiareas que le doy en concepto de
worth P150 and a gold chain worth P40; to his son Ernesto M. Guevara, a mejora.
gold ring worth P180 and all the furniture, pictures, statues, and other
religious objects found in the residence of the testator in Poblacion Sur, "A mi hija natural reconocida, Rosario Guevara, veintiun (21) hectareas,
Bayambang, Pangasinan; "a mi hija Rosario Guevara," a pair of earrings sesenta y un (61) areas y setenta y un (71) centiareas, que es la parte
worth P120; to his stepson Pio Guevara, a ring worth P120; and to his wife restante.
by second marriage, Angustia Posadas, various pieces of jewelry worth
P1,020. "Duodecimo. — Nombro por la presente como Albacea Testamentario a mi
hijo Ernesto M. Guevara, con relevacion de fianza. Y una vez legalizado este
He also made the following devises: "A mis hijos Rosario Guevara y Ernesto testamento, y en cuanto sea posible, es mi deseo, que los herederos y
M. Guevara y a mis hijastros, Vivencio, Eduviges, Dionisia, Candida y Pio, legatarios aqui nombrados se repartan extrajudicialmente mis bienes de
apellidados Guevara," a residential lot with its improvements situate in the conformidad con mis disposiciones arriba consignadas."cralaw virtua1aw
town of Bayambang, Pangasinan, having an area of 960 square meters and library
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 Subsequently, and on July 12, 1933, Victorino L. Guevara executed a deed
the large parcel of land of 259-odd hectares described in plan Psu-66618. He of sale (exhibit 2) in favor of Ernesto M. Guevara whereby he conveyed to
also devised to her a portion of 5 hectares of the same parcel of land by way him the southern half of the large parcel of land of which he had theretofore
of complete settlement of her usufructuary right. disposed by the will above mentioned, in consideration of the sum of P1 and
other valuable considerations, among which were the payment of all his
He set aside 100 hectares of the same parcel of land to be disposed of either debts and obligations amounting to not less than P16,500, his maintenance
by him during his lifetime or by his attorney-in-fact Ernesto M. Guevara in up to his death, and the expenses of his last illness and funeral expenses. As
order to pay all his pending debts and to defray his expenses and those of to the northern half of the same parcel of land, he declared: "Hago constar
his family up to the time of his death. tambien que reconozco a mi referido hijo Ernesto M. Guevara como dueño
de la mitad norte de la totalidad y conjunto de los referidos terrenos por
The remander of said parcel of land he disposed of in the following haberlos comprado de su propio peculio del Sr. Rafael T. Puzon a quien
manner:jgc:chanrobles.com.ph habia vendido con anterioridad."cralaw virtua1aw library

"(d). — Toda la porcion restante de mi terreno arriba descrito, de la On September 27, 1933, final decree of registration was issued in land
extension superficial aproximada de ciento veintinueve (129) hectareas registration case No. 15174 of the Court of First Instance of Pangasinan, and
setenta (70) areas, y veinticinco (25) centiareas, con todas sus mejoras pursuant thereto original certificate of title No. 51691 of the same province
existentes en la misma, dejo y distribuyo, pro-indiviso, a mis siguientes was issued on October 12 of the same year in favor of Ernesto M. Guevara

SUCCESSION (Allowance and Disallowance of Wills Cases) Page 2

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. Guevara 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
testator’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 Victorino 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.
SUCCESSION (Allowance and Disallowance of Wills Cases)
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:jgc:chanrobles.com.ph
"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 testator, or within thirty days after he knows that he is named
executor, if he obtained such knowledge after knowing of the death of the
testator, 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 preceding sections, unless he gives a satisfactory excuse to the court,
shall be subject to a fine not exceeding one thousand dollars.
Page 3

"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."cralaw virtua1aw library
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 a 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 prison 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:jgc:chanrobles.com.ph
SUCCESSION (Allowance and Disallowance of Wills Cases)
"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,
inconvenience, delay, and much expense to the parties, and that therefore, it
is preferable to leave them in the very status which they themselves have
chosen, and to decide their controversy once and for all, since, in a similar
case, the Supreme Court applied that same criterion (Leaño v. Leaño, supra),
which is now sanctioned by section 1 of Rule 74 of the Rules of Court.
Besides, section 6 of Rule 124 provides that, if the procedure which the court
ought to follow in the exercise of its jurisdiction is not specifically pointed out
by the Rules of Court, any suitable process or mode of procedure may be
adopted which appears most consistent to the spirit of the said Rules. Hence,
we declare the action instituted by the plaintiff to be in accordance with
law."cralaw virtua1aw library
Let us look into the validity of these considerations. Section 1 of Rule 74
provides as follows:jgc:chanrobles.com.ph
"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."cralaw virtua1aw library
That is a modification of section 596 of the Code of Civil Procedure, which
reads as follows:jgc:chanrobles.com.ph
"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."cralaw virtua1aw library
Page 4

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 letters 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 do 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
SUCCESSION (Allowance and Disallowance of Wills Cases)
the will cannot be disregarded, nor may those rights be obliterated on
account of the failure or refusal of the custodian of the will to present it to the
court for probate.
Even if the decedent left no debts and nobody 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 and 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 reivindicacion or partition.
We therefore believe and so hold that section 1 of Rule 74, relied upon by
the Court of Appeals, does not sanction the procedure adopted by
the Respondent.
The case of Leaño v. Leaño (25 Phil., 180), cited by the Court of Appeals,
like section 1 of Rule 74, sanctions the extrajudicial partition by the heirs of
the properties left by a decedent, but not the nonpresentation of a will for
probate. In that case one Paulina Ver executed a will on October 11, 1902,
and died on November 1, 1902. Her will was presented for probate on
November 10, 1902, and was approved and allowed by the Court on August
16, 1904. In the meantime, and on November 10, 1902, the heirs went ahead
and divided the properties among themselves and some of them
subsequently sold and disposed of their shares to third persons. It does not
affirmatively appear in the decision in that case that the partition made by the
heirs was not in accordance with the will or that they in any way disregarded
the will. In closing the case by its order dated September 1, 1911, the trial
court validated the partition, and one of the heirs, Cunegunda Leaño,
Page 5
appealed. In deciding the appeal this Court said:jgc:chanrobles.com.ph
"The principal assignment of error is that the lower court committed an error
in deciding that the heirs and legatees of the estate of Dña. Paulina Ver had
voluntarily divided the estate among themselves."cralaw virtua1aw library
In resolving that question this Court said:jgc:chanrobles.com.ph
"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."cralaw virtua1aw
library
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 v. Rocha (1926), 48 Phil. 737, this Court
departed from the procedure sanctioned by the trial court and impliedly
approved by this Court in the Leaño case, by holding that an extrajudicial
partition is not proper in testate succession. In the Riosa case the Court,
speaking thru Chief Justice Avanceña, held:jgc:chanrobles.com.ph
"1. EXTRAJUDICIAL PARTITION; NOT PROPER IN TESTATE
SUCCESSION. — Section 596 of the Code of Civil Procedure, authorizing
the heirs of a person who died 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,
SUCCESSION (Allowance and Disallowance of Wills Cases)
which is a testate succession, the heirs made an extrajudicial partition of the
estate and at the same time instituted proceeding for the probate of the will
and the administration of the estate. When the time came for making the
partition, they submitted to the court the extrajudicial partition previously
made by them, which the court approved. Held: That for the purposes of the
reservation and the rights and obligations created thereby, in connection with
the relatives benefited, the property must not be deemed transmitted to the
heirs from the time the extrajudicial partition was made, but from the time
said partition was approved by the court." (Syllabus.)
The Court of Appeals also cites section 6 of Rule 124, which provides that if
the procedure which the court ought to follow in the exercise of its jurisdiction
is not specifically pointed out by the Rules of Court, any suitable process or
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
Page 6
because said will has not been probated due to the failure of the plaintiff as
custodian thereof to comply with the duty imposed upon her by the law.
It is apparent that the defendant Ernesto M. Guevara, who was named
executor in said will, did not take any step to have it presented to the court
for probate and did not signify his acceptance of the trust or refusal to accept
it as required by section 3 of Rule 76 (formerly section 627 of the Code of
Civil Procedure), because his contention is that said will, insofar as the large
parcel of land in litigation is concerned, has been superseded by the deed of
sale exhibit 2 and by the subsequent issuance of the Torrens certificate of
title in his favor.
II
This brings us to the consideration of the second question, referring to the
efficacy of the deed of sale exhibit 2 and the effect of the certificate of title
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
SUCCESSION (Allowance and Disallowance of Wills Cases)
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:jgc:chanrobles.com.ph
"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 debts 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
Page 7
deliver her corresponding share in the estate left by the deceased, Victorino
L. Guevara."cralaw virtua1aw library
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 v. 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.
SUCCESSION (Allowance and Disallowance of Wills Cases)
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.
2.) 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 Decision1 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
Page 8
Tuguegarao City, Cagayan and dismissed, for lack of merit, the complaint for
unlawful detainer file by the said heirs against respondent Vicenta Umengan.
The RTC decision affirmed that of the Municipal Trial Court in Cities (MTCC)
of the same city, Branch III, which had rendered judgment in favor of the
heirs of Rosendo Lasam and directed the ejectment of respondent Vicenta
Umengan from the lot subject of litigation.
The present petition likewise seeks the reversal of the CA Resolution dated
May 17, 2005 denying the motion for reconsideration filed by the heirs of
Rosendo Lasam.
As culled from the records, the backdrop of the present case is as follows –
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.
SUCCESSION (Allowance and Disallowance of Wills Cases)
Sometime in January 2001, the heirs of Rosendo Lasam (son of Isabel
Cuntapay by her second husband) filed with the MTCC a complaint for
unlawful detainer against Vicenta Umengan, who was then occupying the
subject lot. Vicenta Umengan is the daughter of Abdon Turingan (son of
Isabel Cuntapay by her first husband).
In their complaint, the heirs of Rosendo Lasam alleged that they are the
owners of the subject lot, having inherited it from their father. Rosendo
Lasam was allegedly the sole heir of the deceased Pedro Cuntapay through
Isabel Cuntapay. During his lifetime, Rosendo Lasam allegedly temporarily
allowed Vicenta Umengan to occupy the subject lot sometime in 1955. The
latter and her husband allegedly promised that they would vacate the subject
lot upon demand. However, despite written notice and demand by the heirs
of Rosendo Lasam, Vicenta Umengan allegedly unlawfully refused 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.
Page 9
According to Vicenta Umengan, the children of Isabel Cuntapay by her
second husband (Rosendo and Trinidad Lasam) own only 2/6 portion of the
subject lot. She thus prayed that the complaint for ejectment be dismissed
and that the heirs of Rosendo Lasam be ordered to pay her damages.
The MTCC rendered judgment in favor of the heirs of Rosendo Lasam and
directed the ejectment of Vicenta Umengan. In so ruling, the MTCC gave
credence to the newly discovered last will and testament (entitled
Testamento Abierto) purportedly executed by Isabel Cuntapay where she
bequeathed the subject lot to her son, Rosendo Lasam, thus:
x x x my share 1/5th (one-fifth) of the Cuntapay heirs, bordered on the North
by Sr. Elia Canapi; to the South, by Calle Aguinaldo; to the East, by Calle P.
Burgos and the West, by the late Don Luis Alonso; on the property 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
Umengan’s possession thereof was by mere tolerance. The dispositive
portion of the MTCC decision reads:
SUCCESSION (Allowance and Disallowance of Wills Cases)
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
attorney’s fees plus cost of this litigation.
So Ordered.5
On appeal, the RTC affirmed in toto the decision of the MTCC. The RTC
echoed the reasoning of the MTCC that the testamentary disposition of the
property of Isabel Cuntapay should be respected, and that the heirs of
Rosendo Lasam have a better right to possess the subject lot.
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 RTC’s and the MTCC’s holding that the
purported Testamento Abierto of Isabel Cuntapay prevails over Vicenta
Umengan’s 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 court’s order dismissing the said case was not a "judgment on
the merits" as to constitute res judicata.
Page 10
However, the CA declared that the RTC, as well as the MTCC, erred in ruling
that, by virtue of the purported last will and testament of Isabel Cuntapay, the
heirs of Rosendo Lasam have a better right to the subject lot over Vicenta
Umengan. The CA explained that the said last will and testament did not
comply with the formal requirements of the law on wills.6
Specifically, the CA found that the pages of the purported last will and
testament were not numbered in accordance with the law. Neither did it
contain the requisite attestation clause. Isabel Cuntapay as testator and the
witnesses to the will did not affix their respective signatures on the second
page thereof. The said instrument was likewise not acknowledged before a
notary public by the testator and the witnesses. The CA even raised doubts
as to its authenticity, noting that while Isabel Cuntapay died in 1947 and the
heirs of Rosendo Lasam claimed that they discovered the same only in 1997,
a date – May 19, 1956 – appears on the last page of the purported will. The
CA opined that if this was the date of execution, then the will was obviously
spurious. On the other hand, if this was the date of its discovery, then the CA
expressed bafflement as to why the heirs of Rosendo Lasam, through their
mother, 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
SUCCESSION (Allowance and Disallowance of Wills Cases)
Case No. 5924 is hereby REVERSED and SET ASIDE. Private respondents’
complaint for unlawful detainer against petitioner is dismissed for lack of
merit.
SO ORDERED.7
The heirs of Rosendo Lasam sought the reconsideration thereof but their
motion was denied by the CA in its Resolution dated May 17, 2005.
The heirs of Rosendo Lasam (petitioners) now come to the Court alleging
that the CA committed reversible error in setting aside the decision of the
RTC, which had affirmed that of the MTCC, and dismissing their complaint
for unlawful detainer against respondent Vicenta Umengan.
Petitioners argue that the CA erred when it held, on one hand, that the
MTCC had jurisdiction over the subject matter of the complaint as the
allegations therein make out a case for unlawful detainer but, on the other
hand, proceeded to discuss the validity of the last will and testament of Isabel
Cuntapay.
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 respondent’s 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
respondent’s complaint for partition of the subject lot. The said order
allegedly constituted res judicata and may no longer be reviewed by the CA.
Page 11
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 latter’s possession of the subject lot was by mere tolerance
of Rosendo Lasam who inherited the same from Isabel Cuntapay.
According to petitioners, respondent’s predecessors-in-interest from whom
she derived her claim over the subject lot by donation and sale could not
have conveyed portions thereof to her, as she had claimed, because until the
present, it is still covered by OCT Nos. 196 and 1032 under the names of
Pedro and Leona Cuntapay. Their respective estates have not been settled
up to now.
It is also the contention of petitioners that the CA should have dismissed
outright respondent’s 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
respondent’s 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
SUCCESSION (Allowance and Disallowance of Wills Cases)
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, respondent’s 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.
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.
Page 12
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 testator’s 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 Cañiza v. Court of Appeals,11 the Court ruled that: "[a] will is essentially
ambulatory; at any time prior to the testator’s death, it may be changed or
revoked; and until admitted to probate, it has no effect whatever and no right
can be claimed thereunder, the law being quite explicit: ‘No will shall pass
either real or personal property unless it is proved and allowed in accordance
with the Rules of Court.’"12
Dr. Tolentino, an eminent authority on civil law, also explained that "[b]efore
any will can have force or validity it must be probated. To probate a will
means to prove before some officer or tribunal, vested by law with authority
for that purpose, that the instrument offered to be proved is the last will and
testament of the deceased person whose testamentary act it is alleged to be,
and that it has been executed, attested and published as required by law,
and that the testator was of sound and disposing mind. It is a proceeding to
establish the validity of the will."13 Moreover, the presentation of the will for
probate is mandatory and is a matter of public policy.14
Following the above truisms, the MTCC and RTC, therefore, erroneously
ruled that petitioners have a better right to possess the subject lot on the
basis of the purported last will and testament of Isabel Cuntapay, which, to
date, has not been probated. Stated in another manner, Isabel Cuntapay’s
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
SUCCESSION (Allowance and Disallowance of Wills Cases)
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 respondent’s 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 respondent’s 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 above-entitled
case be as it is hereby DISMISSED.
SO ORDERED.15
For there to be res judicata, the following elements must be present: (1)
finality of the former judgment; (2) the court which rendered it had jurisdiction
Page 13
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 Cuntapay’s
will, the respondents filed the present complaint for unlawful detainer. Viewed
from this perspective, we have no doubt that the court’s 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
SUCCESSION (Allowance and Disallowance of Wills Cases)
and/co-ownership among the heirs. The Court had expounded the principle
in this wise:
This Court had the occasion to rule that there is no doubt that an heir can sell
whatever right, interest, or participation he may have in the property under
administration. This is a matter which comes under the jurisdiction of the
probate court.
The right of an heir to dispose of the decedent’s 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
Page 14

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 Cuntapay’s 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 CA’s 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 CA’s finding on the validity of
Isabel Cuntapay’s 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.
3.) Nepomuceno v CA
SUCCESSION (Allowance and Disallowance of Wills Cases)
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.
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:
Page 15
Art. IV. That since 1952, 1 have been living, as man and wife with one Sofia
J. Nepomuceno, whom I declare and avow to be entitled to my love and
affection, for all the things which she has done for me, now and in the past;
that while Sofia J. Nepomuceno has with my full knowledge and consent, did
comport and represent myself as her own husband, in truth and in fact, as
well as in the eyes of the law, I could not bind her to me in the holy bonds of
matrimony because of my aforementioned previous marriage;
On August 21, 1974, the petitioner filed a petition for the probate of the last
Will and Testament of the deceased Martin Jugo in the Court of First
Instance of Rizal, Branch XXXIV, Caloocan City and asked for the issuance
to her of letters testamentary.
On May 13, 1975, the legal wife of the testator, Rufina Gomez and her
children filed an opposition alleging inter alia that the execution of the Will
was procured by undue and improper influence on the part of the petitioner;
that at the time of the execution of the Will, the testator was already very sick
and that petitioner having admitted her living in concubinage with the testator,
she is wanting in integrity and thus, letters testamentary should not be issued
to her.
On January 6, 1976, the lower court denied the probate of the Will on the
ground that as the testator admitted in his Will to cohabiting with the
petitioner from December 1952 until his death on July 16, 1974, the Will's
admission to probate will be an Idle exercise because on the face of the Will,
the invalidity of its intrinsic provisions is evident.
The petitioner appealed to the respondent-appellate court.
On June 2, 1982, the respondent court set aside the decision of the Court of
First Instance of Rizal denying the probate of the will. The respondent court
declared the Will to be valid except that the devise in favor of the petitioner is
null and void pursuant to Article 739 in relation with Article 1028 of the Civil
Code of the Philippines. The dispositive portion of the decision reads:
WHEREFORE, the decision a quo is hereby set aside, the will in question
declared valid except the devise in favor of the appellant which is declared
SUCCESSION (Allowance and Disallowance of Wills Cases)
null and void. The properties so devised are instead passed on in intestacy to
the appellant in equal shares, without pronouncement as to cost.
On June 15, 1982, oppositors Rufina Gomez and her children filed a "Motion
for Correction of Clerical Error" praying that the word "appellant" in the last
sentence of the dispositive portion of the decision be changed to "appellees"
so as to read: "The properties so devised are instead passed on intestacy to
the appellees in equal shares, without pronouncement as to costs." The
motion was granted by the respondent court on August 10, 1982.
On August 23, 1982, the petitioner filed a motion for reconsideration. This
was denied by the respondent court in a resolution dated December 28, 1982.
The main issue raised by the petitioner is whether or not the respondent
court acted in excess of its jurisdiction when after declaring the last Will and
Testament of the deceased Martin Jugo validly drawn, it went on to pass
upon the intrinsic validity of the testamentary provision in favor of herein
petitioner.
The petitioner submits that the validity of the testamentary provision in her
favor cannot be passed upon and decided in the probate proceedings but in
some other proceedings because the only purpose of the probate of a Will is
to establish conclusively as against everyone that a Will was executed with
the formalities required by law and that the testator has the mental capacity
to execute the same. The petitioner further contends that even if the
provisions of paragraph 1 of Article 739 of the Civil Code of the Philippines
were applicable, the declaration of its nullity could only be made by the
proper court in a separate action brought by the legal wife for the specific
purpose of obtaining a declaration of the nullity of the testamentary provision
in the Will in favor of the person with whom the testator was allegedly guilty
of adultery or concubinage.
The respondents on the other hand contend that the fact that the last Will
and Testament itself expressly admits indubitably on its face the meretricious
relationship between the testator and the petitioner and the fact that
petitioner herself initiated the presentation of evidence on her alleged
ignorance of the true civil status of the testator, which led private
respondents to present contrary evidence, merits the application of the
Page 16
doctrine enunciated in Nuguid v. Felix Nuguid, et al. (17 SCRA 449) and
Felix Balanay, Jr. v. Hon. Antonio Martinez, et al. (G.R. No. L- 39247, June
27, 1975). Respondents also submit that the admission of the testator of the
illicit relationship between him and the petitioner put in issue the legality of
the devise. We agree with the respondents.
The respondent court acted within its jurisdiction when after declaring the Will
to be validly drawn, it went on to pass upon the intrinsic validity of the Will
and declared the devise in favor of the petitioner null and void.
The general rule is that in probate proceedings, the court's area of inquiry is
limited to an examination and resolution of the extrinsic validity of the Will.
The rule is expressed thus:
xxx xxx xxx
... It is elementary that a probate decree finally and definitively settles all
questions concerning capacity of the testator and the proper execution and
witnessing of his last Will and testament, irrespective of whether its
provisions are valid and enforceable or otherwise. (Fernandez v. Dimagiba,
21 SCRA 428)
The petition below being for the probate of a Will, the court's area of inquiry is
limited to the extrinsic validity thereof. The testators testamentary capacity
and the compliance with the formal requisites or solemnities prescribed by
law are the only questions presented for the resolution of the court. Any
inquiry into the intrinsic validity or efficacy of the provisions of the will or the
legality of any devise or legacy is premature.
xxx xxx xxx
True or not, the alleged sale is no ground for the dismissal of the petition for
probate. Probate is one thing; the validity of the testamentary provisions is
another. The first decides the execution of the document and the
testamentary capacity of the testator; the second relates to descent and
distribution (Sumilang v. Ramagosa, 21 SCRA 1369)
xxx xxx xxx
SUCCESSION (Allowance and Disallowance of Wills Cases)
To establish conclusively as against everyone, and once for all, the facts that
a will was executed with the formalities required by law and that the testator
was in a condition to make a will, is the only purpose of the proceedings
under the new code for the probate of a will. (Sec. 625). The judgment in
such proceedings determines and can determine nothing more. In them the
court has no power to pass upon the validity of any provisions made in the
will. It can not decide, for example, that a certain legacy is void and another
one valid. ... (Castaneda v. Alemany, 3 Phil. 426)
The rule, however, is not inflexible and absolute. Given exceptional
circumstances, the probate court is not powerless to do what the situation
constrains it to do and pass upon certain provisions of the Will.
In Nuguid v. Nuguid (17 SCRA 449) cited by the trial court, the testator
instituted the petitioner as universal heir and completely preterited her
surviving forced heirs. A will of this nature, no matter how valid it may appear
extrinsically, would be null and void. Separate or latter proceedings to
determine the intrinsic validity of the testamentary provisions would be
superfluous.
Even before establishing the formal validity of the will, the Court in
Balanay .Jr. v. Martinez (64 SCRA 452) passed upon the validity of its
intrinsic provisions.
Invoking "practical considerations", we stated:
The basic issue is whether the probate court erred in passing upon the
intrinsic validity of the will, before ruling on its allowance or formal validity,
and in declaring it void.
We are of the opinion that in view of certain unusual provisions of the will,
which are of dubious legality, and because of the motion to withdraw the
petition for probate (which the lower court assumed to have been filed with
the petitioner's authorization) the trial court acted correctly in passing upon
the will's intrinsic validity even before its formal validity had been established.
The probate of a will might become an Idle ceremony if on its face it appears
to be intrinsically void. Where practical considerations demand that the
Page 17
intrinsic validity of the will be passed upon, even before it is probated, the
court should meet the issue (Nuguid v. Nuguid, 64 O.G. 1527, 17 SCRA 449.
Compare with Sumilang vs. Ramagosa L-23135, December 26, 1967, 21
SCRA 1369; Cacho v. Udan L-19996, April 30, 1965, 13 SCRA 693).
There appears to be no more dispute at this time over the extrinsic validity of
the Will. Both parties are agreed that the Will of Martin Jugo was executed
with all the formalities required by law and that the testator had the mental
capacity to execute his Will. The petitioner states that she completely agrees
with the respondent court when in resolving the question of whether or not
the probate court correctly denied the probate of Martin Jugo's last Will and
Testament, it ruled:
This being so, the will is declared validly drawn. (Page 4, Decision, Annex A
of Petition.)
On the other hand the respondents pray for the affirmance of the Court of
Appeals' decision in toto.
The only issue, therefore, is the jurisdiction of the respondent court to declare
the testamentary provision in favor of the petitioner as null and void.
We sustain the respondent court's jurisdiction. As stated in Nuguid v. Nuguid,
(supra):
We pause to reflect. If the case were to be remanded for probate of the will,
nothing will be gained. On the contrary, this litigation will be protracted. And
for aught that appears in the record, in the record, in the event of probate or if
the court rejects the will, probability exists that the case will come up once
again before us on the same issue of the intrinsic validity or nullity of the will.
Result, waste of time, effort, expense, plus added anxiety. These are the
practical considerations that induce us to a belief that we might as well meet
head-on the issue of the validity of the provisions of the will in question.
(Section 2, Rule 1, Rules of Court. Case, et al. v. Jugo, et al., 77 Phil. 517,
522). After all, there exists a justiciable controversy crying for solution.
We see no useful purpose that would be served if we remand the nullified
provision to the proper court in a separate action for that purpose simply
SUCCESSION (Allowance and Disallowance of Wills Cases)
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
Page 18
the petitioner and Mr. Jugo lived together in an ostensible marital relationship
for 22 years until his death.
It is also a fact that on December 2, 1952, Martin Jugo and Sofia J.
Nepomuceno contracted a marriage before the Justice of the Peace of
Victoria, Tarlac. The man was then 51 years old while the woman was 48.
Nepomuceno now contends that she acted in good faith for 22 years in the
belief that she was legally married to the testator.
The records do not sustain a finding of innocence or good faith. As argued by
the private respondents:
First. The last will and testament itself expressly admits indubitably on its
face the meretricious relationship between the testator and petitioner, the
devisee.
Second. Petitioner herself initiated the presentation of evidence on
her alleged ignorance of the true civil status of the testator, which led private
respondents to present contrary evidence.
In short, the parties themselves dueled on the intrinsic validity of the legacy
given in the will to petitioner by the deceased testator at the start of the
proceedings.
Whether or not petitioner knew that testator Martin Jugo, the man he had
lived with as man and wife, as already married, was an important and
specific issue brought by the parties before the trial court, and passed upon
by the Court of Appeals.
Instead of limiting herself to proving the extrinsic validity of the will, it was
petitioner who opted to present evidence on her alleged good faith in
marrying the testator. (Testimony of Petitioner, TSN of August 1, 1982, pp.
56-57 and pp. 62-64).
Private respondents, naturally, presented evidence that would refute the
testimony of petitioner on the point.
SUCCESSION (Allowance and Disallowance of Wills Cases)
Sebastian Jugo, younger brother of the deceased testator, testified at length
on the meretricious relationship of his brother and petitioner. (TSN of August
18,1975).
Clearly, the good faith of petitioner was by option of the parties made a
decisive issue right at the inception of the case.
Confronted by the situation, the trial court had to make a ruling on the
question.
When the court a quo held that the testator Martin Jugo and petitioner 'were
deemed guilty of adultery or concubinage', it was a finding that petitioner was
not the innocent woman she pretended to be.
xxx xxx xxx
3. If a review of the evidence must be made nonetheless, then private
respondents respectfully offer the following analysis:
FIRST: The secrecy of the marriage of petitioner with the deceased testator
in a town in Tarlac where neither she nor the testator ever resided. If there
was nothing to hide from, why the concealment' ? Of course, it maybe argued
that the marriage of the deceased with private respondent Rufina Gomez
was likewise done in secrecy. But it should be remembered that Rufina
Gomez was already in the family way at that time and it would seem that the
parents of Martin Jugo were not in favor of the marriage so much so that an
action in court was brought concerning the marriage. (Testimony of
Sebastian Jugo, TSN of August 18, 1975, pp. 29-30)
SECOND: Petitioner was a sweetheart of the deceased testator when they
were still both single. That would be in 1922 as Martin Jugo married
respondent Rufina Gomez on November 29, 1923 (Exh. 3). Petitioner
married the testator only on December 5, 1952. There was a space of about
30 years in between. During those 30 years, could it be believed that she did
not even wonder why Martin Jugo did not marry her nor contact her anymore
after November, 1923 - facts that should impel her to ask her groom before
she married him in secrecy, especially so when she was already about 50
years old at the time of marriage.
Page 19
THIRD: The fact that petitioner broke off from Martin Jugo in 1923 is by itself
conclusive demonstration that she new that the man she had openly lived for
22 years as man and wife was a married man with already two children.
FOURTH: Having admitted that she knew the children of respondent
Rufina Gomez, is it possible that she would not have asked Martin Jugo
whether or not they were his illegitimate or legitimate children and by whom?
That is un-Filipino.
FIFTH: Having often gone to Pasig to the residence of the parents of the
deceased testator, is it possible that she would not have known that the
mother of private respondent Oscar Jugo and Carmelita Jugo was
respondent Rufina Gomez, considering that the houses of the parents of
Martin Jugo (where he had lived for many years) and that of respondent
Rufina Gomez were just a few meters away?
Such pretentions of petitioner Sofia Nepomuceno are unbelievable. They are,
to say the least, inherently improbable, for they are against the experience in
common life and the ordinary instincts and promptings of human nature that
a woman would not bother at all to ask the man she was going to marry
whether or not he was already married to another, knowing that her groom
had children. It would be a story that would strain human credulity to the limit
if petitioner did not know that Martin Jugo was already a married man in view
of the irrefutable fact that it was precisely his marriage to respondent Rufina
Gomez that led petitioner to break off with the deceased during their younger
years.
Moreover, the prohibition in Article 739 of the Civil Code is against the
making of a donation between persons who are living in adultery or
concubinage. It is the donation which becomes void. The giver cannot give
even assuming that the recipient may receive. The very wordings of the Will
invalidate the legacy because the testator admitted he was disposing the
properties to a person with whom he had been living in concubinage.
WHEREFORE, the petition is DISMISSED for lack of merit. The decision of
the Court of Appeals, now Intermediate Appellate Court, is AFFIRMED. No
costs.
SUCCESSION (Allowance and Disallowance of Wills Cases)
SO ORDERED.
4.) Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. L-29300 June 21, 1978
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 HITOSIS-
BANEGA, ALICIA HITOSIS-BANEGA AND ELISA HITOSIS-BANEGA,
represented by their legal guardian and father ERNESTO BANEGA,
FELICITAS HITOSIS-PENAFLOR, GENOVEVA HITOSIS-ADRIATICO,
Page 20
MANUEL HITOSIS, PEDRO HITOSIS, LIBRATA HITOSIS-BALMES,
JUANITA HITOSIS-GABITO VDA. DE GABAS, MAURA HITOSIS-GABITO
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.
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
SUCCESSION (Allowance and Disallowance of Wills Cases)
separate properties consisting of three parcels of abaca land and parcel of
riceland to his protege (sasacuyang ataman), Adolfo Fortajada, a minor.
3. Opposition to the probate of the will was registered by the testator's legal
heirs, namely, his surviving brother, Leon, trial his nephews trial nieces. After
a hearing, wherein the oppositors did not present any evidence in support of
their opposition, Judge Pablo S. Rivera, in his decision of October 27, 1939,
admitted the will to probate and appointed Gallanosa as executor. Judge
Rivera specifically found that the testator executed his last will "gozando de
buena salud y facultades mentales y no obrando en virtud de amenaza,
fraude o influencia indebida."
4. On October 24, 1941, the testamentary heirs, the Gallanosa spouses trial
Adolfo Fortajada, submitted a project of partition covering sixty-one parcels
of land located in various parts of Sorsogon, large cattle trial several pieces
of personal property which were distributed in accordance with Florentino's
will. The heirs assumed the obligations of the estate amounting to P7,129.27
in the portion of P2,376.42 for Adolfo Fortajada and P4,752.85 for the
Gallanosa spouses. The project of partition was approved by Judge Doroteo
Amador in his order of March 13, 1943, thus confirming the heirs' possession
of their respective shares. The testator's legal heirs did not appeal from the
decree of probate trial from the order of partition trial distribution.
5. On February 20, 1952, Leon Hitosis trial the heirs of Florentino's deceased
brothers trial sisters instituted an action in the Court of First Instance of
Sorsogon against Pedro Gallanosa for the recovery of the said sixty-one
parcels of land. They alleged that they, by themselves or through their
predecessors-in-interest, had been in continuous possession of those
lands en concepto de dueño trial that Gallanosa entered those lands in 1951
trial asserted ownership over the lands. They prayed that they be declared
the owners of the lands trial that they be restored to the possession thereof.
They also claimed damages (Civil Case No. 696).
6. Gallanosa moved to dismiss the above complaint for lack of cause of
action trial on the ground of bar by the prior judgment in the probate
proceeding. Judge Anatolio C. Mañalac dismiss the complaint on the ground
of res judicatain his order of August 14, 1952 wherein he said:
Page 21
 It also appears that the plaintiffs and/or their
predecessors-in-interest had intervened in the
testate proceedings in Civil Case No. 3171 of this
Court for- the purpose of contesting the probate of
the will of (the) late Florentino Hitosis; trial had their
opposition prospered trial the will denied of probate,
the proceedings would have been converted into
one of intestacy (Art. 960 Civil Code) and the
settlement of the estate of the said deceased would
have been made in accordance with the provisions
of law governing legal or intestate succession ... , in
which case the said plaintiffs, as the nearest of kin or
legal heirs of said Florentino Mitosis, would have
succeeded to the ownership and possession of the
61 parcels of land in question forming part of his
estate (art. 1003, Civil Code).
However, the derision of the Court was adverse to
them, when it their opposition trial ordered the
probate of his will. From this decision (Annex K)
legalizing the said will, the oppositors did not file any
appeal within the period fixed by law, despite the fact
that they were duly notified thereof, so that the said
decision had become final trial it now constitutes a
bar to any action that the plaintiffs may institute for
the purpose of a redetermination of their rights to
inherit the properties of the late Florentino Hitosis.
In other words, the said decision of this Court in Civil
Case special ) No. 3171, in which the herein
plaintiffs or their predecessors-in-interest had
intervened as parties oppositors, constitutes a final
judicial determination of the issue that the said
plaintiffs, as ordinary heirs, have no legal rights to
succeed to any of the properties of the late
Florentino Hitosis; consequently, their present claim
to the ownership trial possession of the 61 parcels of
land in question is without any legal merit or basis.
SUCCESSION (Allowance and Disallowance of Wills Cases)
7. The plaintiffs did not appeal from that order of dismissal which should have
set the matter at rest. But the same plaintiffs or oppositors to the probate of
the will, trial their heirs, with a persistence befitting a more meritorious case,
filed on September 21, 1967, or fifteen years after the dismissal of Civil Case
No. 696 trial twenty-eight years after the probate of the will another action in
the same court against the Gallanosa spouses trial Adolfo Fortajada for the
"annulment" of the will of Florentino Hitosis trial and for the recovery of the
same sixty-one parcels of land. They prayed for the appointment of a
receiver.
8. As basis of their complaint, they alleged that the Gallanosa spouses,
through fraud trial deceit, caused the execution trial simulation of the
document purporting to be the last will trial testament of Florentino Hitosis.
While in their 1952 complaint the game plaintiffs alleged that they were in
possession of the lands in question, in their 1967 complaint they admitted
that since 1939, or from the death of Florentino Hitosis, the defendants (now
the petitioners) have been in possession of the disputed lands (Par. XIV of
the complaint, p. 70, Rollo in Civil Case No. 555, Gubat Branch, which was
transferred to Branch I in Sorsogon town where Special Proceeding No. 3171
trial Civil Case No. 696 were decided trial which was re-docketed as Civil
Case No. 2233).
9. As already stated, that 1967 complaint, upon motion of the defendants,
now the petitioners, was dismissed by respondent Judge. The plaintiffs filed
a motion for reconsideration Respondent Judge. granted it trial set aside the
order of dismissal. He denied defendants' motion for the reconsideration of
his order setting aside that dismissal order.
The petitioners or the defendants below contend in this certiorari case that
the lower court has no jurisdiction to set aside the 1939 decree of probate
trial the 1952 order of dismissal in Civil Case No. 696 trial that it acted with
grave abuse of discretion in not dismissing private respondents' 1967
complaint.
The issue is whether, under the facts set forth above, the private
respondents have a cause of action the "annulment" of the will of Florentino
Hitosis trial for the recovery of the sixty-one parcels of land adjudicated under
that will to the petitioners.
Page 22
We hold that the lower court committed a grave abuse of discretion in
reconsideration its order of dismissal trial in ignoring the 1939 testamentary
case trial the 1952 Civil Case No. 696 which is the same as the instant 1967
case.
A rudimentary knowledge of substantive law trial procedure is sufficient for
an ordinary lawyer to conclude upon a causal perusal of the 1967 complaint
that it is baseless trial unwarranted.
What the plaintiffs seek is the "annulment" of a last will trial testament duly
probated in 1939 by the lower court itself. The proceeding is coupled with an
action to recover the lands adjudicated to the defendants by the same court
in 1943 by virtue of the probated will, which action is a resuscitation of The
complaint of the same parties that the same court dismissed in 1952.
It is evident from the allegations of the complaint trial from defendants'
motion to dismiss that plaintiffs' 1967 action is barred by res judicata, a
double-barrelled defense, trial by prescription, acquisitive trial extinctive, or
by what are known in the jus civile trial the jus gentium as usucapio, longi
temporis possesio and praescriptio (See Ramos vs. Ramos, L-19872,
December 3, 1974, 61 SCRA 284).
Our procedural law does not sanction an action for the "annulment" of a will.
In order that a will may take effect, it has to be probated, legalized or allowed
in the proper testamentary proceeding. The probate of the will is mandatory
(Art. 838, Civil Code; sec. 1, Rule 75, formerly sec. 1, Rule 76, Rules of
Court; Guevara vs. Guevara, 74 Phil. 479; Guevara vs. Guevara, 98 Phil.
249).
The testamentary proceeding is a special proceeding for the settlement of
the testator's estate. A special proceeding is distinct trial different from an
ordinary action (Secs. 1 trial 2, Rule 2 trial sec. 1, Rule 72, Rules of Court).
We say that the defense of res judicata, as a ground for the dismissal of
plaintiffs' 1967 complaint, is a two-pronged defense because (1) the 1939
trial 1943 decrees of probate trial distribution in Special Proceeding No. 3171
trial (2) the 1952 order of dismissal in Civil Case No. 696 of the lower court
constitute bars by former judgment, Rule 39 of the Rules of Court provides:
SUCCESSION (Allowance and Disallowance of Wills Cases)
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).
Page 23
That means that the testator was of sound trial disposing mind at the time
when he executed the will and was not acting under duress, menace, fraud,
or undue influence; that the will was signed by him in the presence of the
required number of witnesses, and that the will is genuine trial is not a
forgery. Accordingly, these facts cannot again be questioned in a subsequent
proceeding, not even in a criminal action for the forgery of the will. (3 Moran's
Comments on the Rules of Court, 1970 Edition, p. 395; Manahan vs.
Manahan, 58 Phil. 448).
After the finality of the allowance of a will, the issue as to the voluntariness of
its execution cannot be raised anymore (Santos vs. De Buenaventura, L-
22797, September 22, 1966, 18 SCRA 47).
In Austria vs. Ventenilla, 21 Phil. 180, a "petition for annulment of a will" was
not entertained after the decree of probate had become final. That case is
summarized as follows:
Wills; Probate; Alledged Fraudulent Will; Appeal.—
V. died. His will was admitted to probate without
objection. No appeal was taken from said order. It
was admitted that due trial legal notice had been
given to all parties. Fifteen months after the date of
said order, a motion was presented in the lower
court to have said will declared null and void, for the
reason that fraud had been practised upon the
deceased in the making of his will.
Held: That under section 625 of Act No. 190, the
only time given parties who are displeased with the
order admitting to probate a will, for an appeal is the
time given for appeals in ordinary actions; but
without deciding whether or not an order admitting a
will to probate will be opened for fraud, after the time
allowed for an appeal has expired, when no appeal
is taken from an order probating a will, the heirs can
not, in subsequent litigation in the same proceedings,
raise questions relating to its due execution. The
probate of a will is conclusive as to its due execution
SUCCESSION (Allowance and Disallowance of Wills Cases)
trial as to the testamentary capacity of The testator.
(See Austria vs. Heirs of Ventenilla. 99 Phil. 1069).
On the other hand, the 1943 decree of adjudication rendered by the trial
court in the testate proceeding for the settlement of the estate of Florentino
Hitosis, having been rendered in a proceeding in rem, is under the
abovequoted section 49(a), binding upon the whole world (Manalo vs.
Paredes, 47 Phil. 938; In re Estate of Johnson, 39 Phil. 156; De la Cerna vs.
Potot, 120 Phil. 1361, 1364; McMaster vs. Hentry Reissmann & Co., 68 Phil.
142).
It is not only the 1939 probate proceeding that can be interposed as res
judicata with respect to private respondents' complaint, The 1952 order of
dismissal rendered by Judge Mañalac in Civil Case No. 696, a judgment in
personam was an adjudication on the merits (Sec. 4, Rule 30, old Rules of
Court). It constitutes a bar by former judgment under the aforequoted section
49(b) (Anticamara vs. Ong, L-29689. April 14, 1978).
The plaintiffs or private respondents did not even bother to ask for the
annulment of the testamentary proceeding trial the proceeding in Civil Case
No. 696. Obviously, they realized that the final adjudications in those cases
have the binding force of res judicata and that there is no ground, nor is it
timely, to ask for the nullification of the final orders trial judgments in those
two cases.
It is a fundamental concept in the organization of every jural system, a
principle of public policy, that, at the risk of occasional errors, judgments of
courts should become final at some definite date fixed by law. Interest rei
publicae ut finis sit litum. "The very object for which the courts were
constituted was to put an end to controversies." (Dy Cay vs. Crossfield and
O'Brien, 38 Phil. 521: Peñalosa vs. Tuason, 22 Phil, 303; De la Cerna vs.
Potot, supra).
After the period for seeking relief from a final order or judgment under Rule
38 of the Rules of Court has expired, a final judgment or order can be set
aside only on the grounds of (a) lack of jurisdiction or lack of due process of
law or (b) that the judgment was obtained by means of extrinsic or collateral
fraud. In the latter case, the period for annulling the judgment is four years
Page 24
from the discovery of the fraud (2 Moran's Comments on the Rules of Court,
1970 Edition, pp. 245-246; Mauricio vs. Villanueva, 106 Phil. 1159).
To hurdle over the obstacle of prescription, the trial court, naively adopting
the theory of plaintiffs' counsel, held that the action for the recovery of the
lands had not prescribed because the rule in article 1410 of the Civil Code,
that "the action or defense for the declaration of the inexistence of
a contract does not prescribe", applies to wills.
That ruling is a glaring error. Article 1410 cannot possibly apply to last wills
trial testaments. The trial court trial plaintiffs' counsel relied upon the case of
Dingle vs. Guillermo, 48 0. G. 4410, allegedly decided by this Court, which
cited the ruling in Tipton vs. Velasco, 6 Phil. 67, that mere lapse of time
cannot give efficacy to void contracts, a ruling elevated to the category of a
codal provision in article 1410. The Dingle case was decided by the Court of
Appeals. Even the trial court did not take pains to verify the
misrepresentation of plaintiffs' counsel that the Dinglecase was decided by
this Court. An elementary knowledge of civil law could have alerted the trial
court to the egregious error of plaintiffs' counsel in arguing that article 1410
applies to wills.
WHEREFORE, the lower court's orders of May 3 trial June 17, 1968 are
reversed trial set aside trial its order of dismissal dated January 10, 1968 is
affirmed. Costs against the private respondents.
SO ORDERED.
5. ) G.R. No. 38050 September 22, 1933
In the matter of the will of Donata Manahan. TIBURCIA MANAHAN,
petitioner-appellee,
vs.
ENGRACIA MANAHAN, opponent-appellant.
J. Fernando Rodrigo for appellant.
Heraclio H. del Pilar for appellee.
SUCCESSION (Allowance and Disallowance of Wills Cases)
IMPERIAL, J.:
This is an appeal taken by the appellant herein, Engracia Manahan, from the
order of the Court of the First Instance of Bulacan dated July 1, 1932, in the
matter of the will of the deceased Donata Manahan, special proceedings No.
4162, denying her motion for reconsideration and new trial filed on May 11,
1932.
The fact in the case are as follows:
On August 29, 1930, Tiburcia Manahan instituted special proceedings No.
4162, for the probate of the will of the deceased Donata Manahan, who died
in Bulacan, Province of Bulacan, on August 3, 1930. The petitioner herein,
niece of the testatrix, was named the executrix in said will. The court set the
date for the hearing and the necessary notice required by law was
accordingly published. On the day of the hearing of the petition, no
opposition thereto was filed and, after the evidence was presented, the court
entered the decree admitting the will to probate as prayed for. The will was
probated on September 22, 1930. The trial court appointed the herein
petitioner executrix with a bond of P1,000, and likewise appointed the
committed on claims and appraisal, whereupon the testamentary
proceedings followed the usual course. One year and seven months later,
that is, on My 11, 1932, to be exact, the appellant herein filed a motion for
reconsideration and a new trial, praying that the order admitting the will to
probate be vacated and the authenticated will declared null and void ab initio.
The appellee herein, naturally filed her opposition to the petition and, after
the corresponding hearing thereof, the trial court erred its over of denial on
July 1, 1932. Engracia Manahan, under the pretext of appealing from this last
order, likewise appealed from the judgment admitting the will to probate.
In this instance, the appellant assigns seven (7) alleged errors as committed
by the trial court. Instead of discussing them one by one, we believe that,
essentially, her claim narrows down to the following: (1) That she was an
interested party in the testamentary proceedings and, as such, was entitled
to and should have been notified of the probate of the will; (2) that the court,
in its order of September 22, 1930, did not really probate the will but limited
itself to decreeing its authentication; and (3) that the will is null and void ab
Page 25
initio on the ground that the external formalities prescribed by the Code of
Civil Procedure have not been complied with in the execution thereof.
The appellant's first contention is obviously unfounded and untenable. She
was not entitled to notification of the probate of the will and neither had she
the right to expect it, inasmuch as she was not an interested party, not
having filed an opposition to the petition for the probate thereof. Her
allegation that she had the status of an heir, being the deceased's sister, did
not confer on her the right to be notified on the ground that the testatrix died
leaving a will in which the appellant has not been instituted heir. Furthermore,
not being a forced heir, she did not acquire any successional right.
The second contention is puerile. The court really decreed the authentication
and probate of the will in question, which is the only pronouncement required
of the trial court by the law in order that the will may be considered valid and
duly executed in accordance with the law. In the phraseology of the
procedural law, there is no essential difference between the authentication of
a will and the probate thereof. The words authentication and probate are
synonymous in this case. All the law requires is that the competent court
declared that in the execution of the will the essential external formalities
have been complied with and that, in view thereof, the document, as a will, is
valid and effective in the eyes of the law.
The last contention of the appellant may be refuted merely by stating that,
once a will has been authenticated and admitted to probate, questions
relative to the validity thereof can no more be raised on appeal. The decree
of probate is conclusive with respect to the due execution thereof and it
cannot impugned on any of the grounds authorized by law, except that of
fraud, in any separate or independent action or proceedings (sec. 625, Code
of Civil Procedure; Castañeda vs. Alemany, 3 Phil., 426; Pimentel vs.
Palanca, 5 Phil., 436; Sahagun vs. De Gorostiza, 7 Phil., 347; Limjuco vs.
Ganara, 11 Phil., 393; Montañano vs. Suesa, 14 Phil., 676; In re Estate of
Johnson, 39 Phil., 156; Riera vs. Palmaroli, 40 Phil., 105; Austria vs.
Ventenilla, 21 Phil., 180; Ramirez vs. Gmur, 42 Phil., 855; and Chiong Joc-
Soy vs. Vaño, 8 Phil., 119).
But there is another reason which prevents the appellant herein from
successfully maintaining the present action and it is that inasmuch as the
SUCCESSION (Allowance and Disallowance of Wills Cases)
proceedings followed in a testamentary case are in rem, the trial court's
decree admitting the will to probate was effective and conclusive against her,
in accordance with the provisions of section 306 of the said Code of Civil
Procedure which reads as follows:
SEC. 306. EFFECT OF JUDGMENT. — . . . .
1. In case of a judgment or order against a specific thing, or in respect
to the probate of a will, or the administration of the estate of a deceased
person, or in respect to the personal, political, or legal condition or relation of
a particular person the judgment or order is conclusive upon the title of the
thing, the will or administration, or the condition or relation of the person:
Provided, That the probate of a will or granting of letters of administration
shall only be prima facie evidence of the death of the testator or
intestate; . . . .
On the other hand, we are at a loss to understand how it was possible for the
herein appellant to appeal from the order of the trial court denying her motion
for reconsideration and a new trial, which is interlocutory in character. In view
of this erroneous interpretation, she succeeded in appealing indirectly from
the order admitting the will to probate which was entered one year and seven
months ago.
Before closing, we wish to state that it is not timely to discuss herein the
validity and sufficiency of the execution of the will in question. As we have
already said, this question can no more be raised in this case on appeal.
After due hearing, the court found that the will in question was valid and
effective and the order admitting it to probate, thus promulgated, should be
accepted and respected by all. The probate of the will in question now
constitutes res judicata.
Wherefore, the appeal taken herein is hereby dismissed, with costs against
the appellant. So ordered.
G.R. No. L-20234 December 23, 1964
6.) PAULA DE LA CERNA, ET AL., petitioners,
Page 26
vs.
MANUELA REBACA POTOT, ET AL., and THE HONORABLE COURT OF
APPEALS, respondents.
Philip M. Alo and Crispin M. Menchavez for petitioners.
Nicolas Jumapao for respondents.
REYES, J.B.L., J.:
Appeal by Paula de la Cerna and others from a decision of the Court of
Appeals, Sixth Division (C.A.-G.R. No. 23763-R) reversing that of the Court
of First Instance of Cebu (Civ. Case No. R-3819) and ordering the dismissal
of an action for partition.
The factual background appears in the following portion of the decision of the
Court of Appeals (Petition, Annex A, pp. 2-4):
It appears that on May 9, 1939, the spouses, Bernabe de la Serna and
Gervasia Rebaca, executed a joint last will and testament in the local dialect
whereby they willed that "our two parcels of land acquired during our
marriage together with all improvements thereon shall be given to Manuela
Rebaca, our niece, whom we have nurtured since childhood, because God
did not give us any child in our union, Manuela Rebaca being married to
Nicolas Potot", and that "while each of the testators is yet living, he or she will
continue to enjoy the fruits of the two lands aforementioned", the said two
parcels of land being covered by Tax No. 4676 and Tax No. 6677, both
situated in sitio Bucao, barrio Lugo, municipality of Borbon, province of Cebu.
Bernabe dela Serna died on August 30, 1939, and the aforesaid will was
submitted to probate by said Gervasia and Manuela before the Court of First
Instance of Cebu which, after due publication as required by law and there
being no opposition, heard the evidence, and, by Order of October 31, 1939;
in Special Proceedings No. 499, "declara legalizado el documento Exhibit A
como el testamento y ultima voluntad del finado Bernabe de la Serna con
derecho por parte du su viuda superstite Gervasia Rebaca y otra testadora al
propio tiempo segun el Exhibit A de gozar de los frutos de los terranos
descritos en dicho documents; y habido consideracion de la cuantia de
dichos bienes, se decreta la distribucion sumaria de los mismos en favor de
la logataria universal Manuela Rebaca de Potot previa prestacion por parte
SUCCESSION (Allowance and Disallowance of Wills Cases)
de la misma de una fianza en la sum de P500.00 para responder de
cualesquiera reclamaciones que se presentare contra los bienes del finado
Bernabe de la Serna de los años desde esta fecha" (Act Esp. 499,
Testamentaria Finado Bernabe de la Serna) Upon the death of Gervasia
Rebaca on October 14, 1952, another petition for the probate of the same
will insofar as Gervasia was concerned was filed on November 6, 1952,
being Special Proceedings No. 1016-R of the same Court of First Instance of
Cebu, but for failure of the petitioner, Manuela R. Potot and her attorney,
Manuel Potot to appear, for the hearing of said petition, the case was
dismissed on March 30, 1954 Spec. Proc. No. 1016-R, In the matter of the
Probate of the Will of Gervasia Rebaca).
The Court of First Instance ordered the petition heard and declared the
testament null and void, for being executed contrary to the prohibition of joint
wills in the Civil Code (Art. 669, Civil Code of 1889 and Art. 818, Civil Code
of the Philippines); but on appeal by the testamentary heir, the Court of
Appeals reversed, on the ground that the decree of probate in 1939 was
issued by a court of probate jurisdiction and conclusive on the due execution
of the testament. Further, the Court of Appeals declared that:
... . It is true the law (Art. 669, old Civil Code; Art. 818, new Civil Code).
prohibits the making of a will jointly by two or more persons either for their
reciprocal benefit or for the benefit of a third person. However, this form of
will has long been sanctioned by use, and the same has continued to be
used; and when, as in the present case, one such joint last will and
testament has been admitted to probate by final order of a Court of
competent jurisdiction, there seems to be no alternative except to give effect
to the provisions thereof that are not contrary to law, as was done in the case
of Macrohon vs. Saavedra, 51 Phil. 267, wherein our Supreme Court gave
effect to the provisions of the joint will therein mentioned, saying, "assuming
that the joint will in question is valid."
Whence this appeal by the heirs intestate of the deceased husband, Bernabe
de la Cerna.
The appealed decision correctly held that the final decree of probate, entered
in 1939 by the Court of First Instance of Cebu (when the testator, Bernabe de
la Cerna, died), has conclusive effect as to his last will and testament despite
Page 27
the fact that even then the Civil Code already decreed the invalidity of joint
wills, whether in favor of the joint testators, reciprocally, or in favor of a third
party (Art. 669, old Civil Code). The error thus committed by the probate
court was an error of law, that should have been corrected by appeal, but
which did not affect the jurisdiction of the probate court, nor the conclusive
effect of its final decision, however erroneous. A final judgment rendered on
a petition for the probate of a will is binding upon the whole world (Manalo vs.
Paredes, 47 Phil. 938; In re Estates of Johnson, 39 Phil. 156); and public
policy and sound practice demand that at the risk of occasional errors
judgment of courts should become final at some definite date fixed by law.
Interest rei publicae ut finis set litium (Dy Cay vs. Crossfield, 38 Phil, 521,
and other cases cited in 2 Moran, Comments on the Rules of Court (1963
Ed., p. 322).
Petitioners, as heirs and successors of the late Bernabe de la Cerna, are
concluded by the 1939 decree admitting his will to probate. The contention
that being void the will cannot be validated, overlooks that the ultimate
decision on Whether an act is valid or void rests with the courts, and here
they have spoken with finality when the will was probated in 1939. On this
court, the dismissal of their action for partition was correct.
But the Court of Appeals should have taken into account also, to avoid future
misunderstanding, that the probate decree in 1989 could only affect the
share of the deceased husband, Bernabe de la Cerna. It could not include
the disposition of the share of the wife, Gervasia Rebaca, who was then still
alive, and over whose interest in the conjugal properties the probate court
acquired no jurisdiction, precisely because her estate could not then be in
issue. Be it remembered that prior to the new Civil Code, a will could not be
probated during the testator's lifetime.
It follows that the validity of the joint will, in so far as the estate of the wife
was concerned, must be, on her death, reexamined and adjudicated de novo,
since a joint will is considered a separate will of each testator. Thus regarded,
the holding of the court of First Instance of Cebu that the joint will is one
prohibited by law was correct as to the participation of the deceased
Gervasia Rebaca in the properties in question, for the reasons extensively
discussed in our decision in Bilbao vs. Bilbao, 87 Phil. 144, that explained the
previous holding in Macrohon vs. Saavedra, 51 Phil. 267.
SUCCESSION (Allowance and Disallowance of Wills Cases)
Therefore, the undivided interest of Gervasia Rebaca should pass upon her
death to her heirs intestate, and not exclusively to the testamentary heir,
unless some other valid will in her favor is shown to exist, or unless she be
the only heir intestate of said Gervasia.
It is unnecessary to emphasize that the fact that joint wills should be in
common usage could not make them valid when our Civil Codes consistently
invalidated them, because laws are only repealed by other subsequent laws,
and no usage to the contrary may prevail against their observance (Art. 5,
Civ. Code of 1889; Art. 7, Civil Code of the Philippines of 1950).
WITH THE FOREGOING MODIFICATION, the judgment of the Court of
Appeals in CA-G.R. No. 23763-R is affirmed. No Costs.
7.) De la Cerna v Potot – REPEATED CASE
8.) [G.R. No. 108581. December 8, 1999]
LOURDES L. DOROTHEO, petitioner, vs. COURT OF APPEALS, NILDA
D. QUINTANA, for Herself and as Attorney-in-Fact of VICENTE
DOROTHEO and JOSE DOROTHEO, respondents.
DECISION
YNARES-SANTIAGO, J.:
May a last will and testament admitted to probate but declared intrinsically
void in an order that has become final and executory still be given effect?
This is the issue that arose from the following antecedents:
Private respondents were the legitimate children of Alejandro Dorotheo and
Aniceta Reyes. The latter died in 1969 without her estate being settled.
Alejandro died thereafter. Sometime in 1977, after Alejandros death,
Page 28
petitioner, who claims to have taken care of Alejandro before he died, filed a
special proceeding for the probate of the latters last will and testament. In
1981, the court issued an order admitting Alejandros will to probate. Private
respondents did not appeal from said order. In 1983, they filed a Motion To
Declare The Will Intrinsically Void. The trial court granted the motion and
issued an order, the dispositive portion of which reads:
WHEREFORE, in view of the foregoing, Order is hereby issued declaring
Lourdes Legaspi not the wife of the late Alejandro Dorotheo, the provisions of
the last will and testament of Alejandro Dorotheo as intrinsically void, and
declaring the oppositors Vicente Dorotheo, Jose Dorotheo and Nilda
Dorotheo Quintana as the only heirs of the late spouses Alejandro Dorotheo
and Aniceta Reyes, whose respective estates shall be liquidated and
distributed according to the laws on intestacy upon payment of estate and
other taxes due to the government.[1]
Petitioner moved for reconsideration arguing that she is entitled to some
compensation since she took care of Alejandro prior to his death although
she admitted that they were not married to each other. Upon denial of her
motion for reconsideration, petitioner appealed to the Court of Appeals, but
the same was dismissed for failure to file appellants brief within the extended
period granted.[2] This dismissal became final and executory on February 3,
1989 and a corresponding entry of judgment was forthwith issued by the
Court of Appeals on May 16, 1989. A writ of execution was issued by the
lower court to implement the final and executory Order. Consequently,
private respondents filed several motions including a motion to compel
petitioner to surrender to them the Transfer Certificates of Titles (TCT)
covering the properties of the late Alejandro. When petitioner refused to
surrender the TCTs, private respondents filed a motion for cancellation of
said titles and for issuance of new titles in their names. Petitioner opposed
the motion.
An Order was issued on November 29, 1990 by Judge Zain B. Angas setting
aside the final and executory Order dated January 30, 1986, as well as the
Order directing the issuance of the writ of execution, on the ground that the
order was merely interlocutory, hence not final in character. The court added
that the dispositive portion of the said Order even directs the distribution of
the estate of the deceased spouses. Private respondents filed a motion for
SUCCESSION (Allowance and Disallowance of Wills Cases)
reconsideration which was denied in an Order dated February 1, 1991. Thus,
private respondents filed a petition before the Court of Appeals, which
nullified the two assailed Orders dated November 29, 1990 and February 1,
1991.
Aggrieved, petitioner instituted a petition for review arguing that the case filed
by private respondents before the Court of Appeals was a petition under Rule
65 on the ground of grave abuse of discretion or lack of jurisdiction.
Petitioner contends that in issuing the two assailed orders, Judge Angas
cannot be said to have no jurisdiction because he was particularly
designated to hear the case. Petitioner likewise assails the Order of the
Court of Appeals upholding the validity of the January 30, 1986 Order which
declared the intrinsic invalidity of Alejandros will that was earlier admitted to
probate.
Petitioner also filed a motion to reinstate her as executrix of the estate of the
late Alejandro and to maintain the status quo or lease of the premises
thereon to third parties.[3] Private respondents opposed the motion on the
ground that petitioner has no interest in the estate since she is not the lawful
wife of the late Alejandro.
The petition is without merit. A final and executory decision or order can no
longer be disturbed or reopened no matter how erroneous it may be. In
setting aside the January 30, 1986 Order that has attained finality, the trial
court in effect nullified the entry of judgment made by the Court of Appeals. It
is well settled that a lower court cannot reverse or set aside decisions or
orders of a superior court, for to do so would be to negate the hierarchy of
courts and nullify the essence of review. It has been ruled that a final
judgment on probated will, albeit erroneous, is binding on the whole world.[4]
It has been consistently held that if no appeal is taken in due time from a
judgment or order of the trial court, the same attains finality by mere lapse of
time. Thus, the order allowing the will became final and the question
determined by the court in such order can no longer be raised anew, either in
the same proceedings or in a different motion. The matters of due execution
of the will and the capacity of the testator acquired the character of res
judicata and cannot again be brought into question, all juridical questions in
connection therewith being for once and forever closed.[5] Such final order
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makes the will conclusive against the whole world as to its extrinsic validity
and due execution.[6]
It should be noted that probate proceedings deals generally with the extrinsic
validity of the will sought to be probated,[7] particularly on three aspects:
whether the will submitted is indeed, the decedents last will and testament;
compliance with the prescribed formalities for the execution of wills;
the testamentary capacity of the testator;[8]
and the due execution of the last will and testament.[9]
Under the Civil Code, due execution includes a determination of whether the
testator was of sound and disposing mind at the time of its execution, that he
had freely executed the will and was not acting under duress, fraud, menace
or undue influence and that the will is genuine and not a forgery,[10] that he
was of the proper testamentary age and that he is a person not expressly
prohibited by law from making a will.[11]
The intrinsic validity is another matter and questions regarding the same may
still be raised even after the will has been authenticated.[12] Thus, it does not
necessarily follow that an extrinsically valid last will and testament is always
intrinsically valid. Even if the will was validly executed, if the testator provides
for dispositions that deprives or impairs the lawful heirs of their legitime or
rightful inheritance according to the laws on succession,[13] the unlawful
provisions/dispositions thereof cannot be given effect. This is specially so
when the courts had already determined in a final and executory decision
that the will is intrinsically void. Such determination having attained that
character of finality is binding on this Court which will no longer be disturbed.
Not that this Court finds the will to be intrinsically valid, but that a final and
executory decision of which the party had the opportunity to challenge before
the higher tribunals must stand and should no longer be reevaluated. Failure
to avail of the remedies provided by law constitutes waiver. And if the party
does not avail of other remedies despite its belief that it was aggrieved by a
decision or court action, then it is deemed to have fully agreed and is
satisfied with the decision or order. As early as 1918, it has been declared
SUCCESSION (Allowance and Disallowance of Wills Cases)
that public policy and sound practice demand that, at the risk of occasional
errors, judgments of courts must at some point of time fixed by law[14]
become final otherwise there will be no end to litigation. Interes rei publicae
ut finis sit litium - the very object of which the courts were constituted was to
put an end to controversies.[15] To fulfill this purpose and to do so speedily,
certain time limits, more or less arbitrary, have to be set up to spur on the
slothful.[16] The only instance where a party interested in a probate
proceeding may have a final liquidation set aside is when he is left out by
reason of circumstances beyond his control or through mistake or
inadvertence not imputable to negligence,[17] which circumstances do not
concur herein.
Petitioner was privy to the suit calling for the declaration of the intrinsic
invalidity of the will, as she precisely appealed from an unfavorable order
therefrom. Although the final and executory Order of January 30, 1986
wherein private respondents were declared as the only heirs do not bind
those who are not parties thereto such as the alleged illegitimate son of the
testator, the same constitutes res judicata with respect to those who were
parties to the probate proceedings. Petitioner cannot again raise those
matters anew for relitigation otherwise that would amount to forum-shopping.
It should be remembered that forum shopping also occurs when the same
issue had already been resolved adversely by some other court.[18] It is
clear from the executory order that the estates of Alejandro and his spouse
should be distributed according to the laws of intestate succession.
Petitioner posits that the January 30, 1986 Order is merely interlocutory,
hence it can still be set aside by the trial court. In support thereof, petitioner
argues that an order merely declaring who are heirs and the shares to which
set of heirs is entitled cannot be the basis of execution to require delivery of
shares from one person to another particularly when no project of partition
has been filed.[19] The trial court declared in the January 30, 1986 Order that
petitioner is not the legal wife of Alejandro, whose only heirs are his three
legitimate children (petitioners herein), and at the same time it nullified the
will. But it should be noted that in the same Order, the trial court also said
that the estate of the late spouses be distributed according to the laws of
intestacy. Accordingly, it has no option but to implement that order of
intestate distribution and not to reopen and again re-examine the intrinsic
provisions of the same will.
Page 30
It can be clearly inferred from Article 960 of the Civil Code, on the law of
successional rights that testacy is preferred to intestacy.[20] But before there
could be testate distribution, the will must pass the scrutinizing test and
safeguards provided by law considering that the deceased testator is no
longer available to prove the voluntariness of his actions, aside from the fact
that the transfer of the estate is usually onerous in nature and that no one is
presumed to give - Nemo praesumitur donare.[21] No intestate distribution of
the estate can be done until and unless the will had failed to pass both its
extrinsic and intrinsic validity. If the will is extrinsically void, the rules of
intestacy apply regardless of the intrinsic validity thereof. If it is extrinsically
valid, the next test is to determine its intrinsic validity that is whether the
provisions of the will are valid according to the laws of succession. In this
case, the court had ruled that the will of Alejandro was extrinsically valid but
the intrinsic provisions thereof were void. Thus, the rules of intestacy apply
as correctly held by the trial court.

Furthermore, Alejandros disposition in his will of the alleged share in the

conjugal properties of his late spouse, whom he described as his only
beloved wife, is not a valid reason to reverse a final and executory order.
Testamentary dispositions of properties not belonging exclusively to the
testator or properties which are part of the conjugal regime cannot be given
effect. Matters with respect to who owns the properties that were disposed of
by Alejandro in the void will may still be properly ventilated and determined in
the intestate proceedings for the settlement of his and that of his late
spouses estate.

Petitioners motion for appointment as administratrix is rendered moot

considering that she was not married to the late Alejandro and, therefore, is
not an heir.

WHEREFORE, the petition is DENIED and the decision appealed from is

AFFIRMED.

SO ORDERED.

SUCCESSION (Allowance and Disallowance of Wills Cases) Page 31