SECOND DIVISION

G.R. No. 106720 September 15, 1994

SPOUSES ROBERTO AND THELMA AJERO, petitioners,

vs.
THE COURT OF APPEALS AND CLEMENTE SAND, respondents.

Miguel D. Larida for petitioners.

Montilla Law Office for private respondent.

PUNO, J.:

This is an appeal by certiorari from the Decision of the Court of

Appeals 1 in CA-G.R. CV No. 22840, dated March 30, 1992, the dispositive portion of which reads;

PREMISES CONSIDERED, the questioned decision of November 19, 1988 of the trial court is hereby
REVERSED and SET ASIDE, and the petition for probate is hereby DISMISSED. No costs.

The earlier Decision was rendered by the RTC of Quezon City, Branch 94, 2 in Sp. Proc. No. Q-37171, and the
instrument submitted for probate is the holographic will of the late Annie Sand, who died on November 25, 1982.

In the will, decedent named as devisees, the following: petitioners Roberto and Thelma Ajero, private respondent Clemente
Sand, Meriam S. Arong, Leah Sand, Lilia Sand, Edgar Sand, Fe Sand, Lisa S. Sand, and Dr. Jose Ajero, Sr., and their children.

On January 20, 1983, petitioners instituted Sp. Proc. No. Q-37171, for allowance of decedent's holographic will. They alleged
that at the time of its execution, she was of sound and disposing mind, not acting under duress, fraud or undue influence, and
was in every respect capacitated to dispose of her estate by will.

Private respondent opposed the petition on the grounds that: neither the testament's body nor the signature therein was in
decedent's handwriting; it contained alterations and corrections which were not duly signed by decedent; and, the will was
procured by petitioners through improper pressure and undue influence. The petition was likewise opposed by Dr. Jose Ajero.
He contested the disposition in the will of a house and lot located in Cabadbaran, Agusan Del Norte. He claimed that said
property could not be conveyed by decedent in its entirety, as she was not its sole owner.

Notwithstanding the oppositions, the trial court admitted the decedent's holographic will to probate. It found, inter alia:

Considering then that the probate proceedings herein must decide only the question of identity of the will, its
due execution and the testamentary capacity of the testatrix, this probate court finds no reason at all for the
disallowance of the will for its failure to comply with the formalities prescribed by law nor for lack of
testamentary capacity of the testatrix.

For one, no evidence was presented to show that the will in question is different from the will actually executed
by the testatrix. The only objections raised by the oppositors . . . are that the will was not written in the
handwriting of the testatrix which properly refers to the question of its due execution, and not to the question of
identity of will. No other will was alleged to have been executed by the testatrix other than the will herein
presented. Hence, in the light of the evidence adduced, the identity of the will presented for probate must be
accepted, i.e., the will submitted in Court must be deemed to be the will actually executed by the testatrix.

xxx xxx xxx

While the fact that it was entirely written, dated and signed in the handwriting of the testatrix has been disputed,
the petitioners, however, have satisfactorily shown in Court that the holographic will in question was indeed
 written entirely, dated and signed in the handwriting of the testatrix. Three (3) witnesses who have convincingly
shown knowledge of the handwriting of the testatrix have been presented and have explicitly and categorically
identified the handwriting with which the holographic will in question was written to be the genuine
handwriting and signature of the testatrix. Given then the aforesaid evidence, the requirement of the law that the
holographic will be entirely written, dated and signed in the handwriting of the testatrix has been complied with.

xxx xxx xxx

As to the question of the testamentary capacity of the testratix, (private respondent) Clemente Sand himself has
testified in Court that the testatrix was completely in her sound mind when he visited her during her birthday
celebration in 1981, at or around which time the holographic will in question was executed by the testatrix. To
be of sound mind, it is sufficient that the testatrix, at the time of making the will, knew the value of the estate to
be disposed of, the proper object of her bounty, and the characterof the testamentary act . . . The will itself
shows that the testatrix even had detailed knowledge of the nature of her estate. She even identified the lot
number and square meters of the lots she had conveyed by will. The objects of her bounty were likewise
identified explicitly. And considering that she had even written a nursing book which contained the law and
jurisprudence on will and succession, there is more than sufficient showing that she knows the character of the
testamentary act.

In this wise, the question of identity of the will, its due execution and the testamentary capacity of the testatrix
has to be resolved in favor of the allowance of probate of the will submitted herein.

Likewise, no evidence was presented to show sufficient reason for the disallowance of herein holographic will.
While it was alleged that the said will was procured by undue and improper pressure and influence on the part
of the beneficiary or of some other person, the evidence adduced have not shown any instance where improper
pressure or influence was exerted on the testatrix. (Private respondent) Clemente Sand has testified that the
testatrix was still alert at the time of the execution of the will, i.e., at or around the time of her birth anniversary
celebration in 1981. It was also established that she is a very intelligent person and has a mind of her own. Her
independence of character and to some extent, her sense of superiority, which has been testified to in Court, all
show the unlikelihood of her being unduly influenced or improperly pressured to make the aforesaid will. It
must be noted that the undue influence or improper pressure in question herein only refer to the making of a
will and not as to the specific testamentary provisions therein which is the proper subject of another proceeding.
Hence, under the circumstances, this Court cannot find convincing reason for the disallowance of the will
herein.

Considering then that it is a well-established doctrine in the law on succession that in case of doubt, testate
succession should be preferred over intestate succession, and the fact that no convincing grounds were
presented and proven for the disallowance of the holographic will of the late Annie Sand, the aforesaid will
submitted herein must be admitted to probate. 3 (Citations omitted.)

On appeal, said Decision was reversed, and the petition for probate of decedent's will was dismissed. The Court of Appeals
found that, "the holographic will fails to meet the requirements for its validity." 4 It held that the decedent did not comply with
Articles 813 and 814 of the New Civil Code, which read, as follows:

Art. 813: When a number of dispositions appearing in a holographic will are signed without being dated, and
the last disposition has a signature and date, such date validates the dispositions preceding it, whatever be the
time of prior dispositions.

Art. 814: In case of insertion, cancellation, erasure or alteration in a holographic will, the testator must
authenticate the same by his full signature.

It alluded to certain dispositions in the will which were either unsigned and undated, or signed but not dated. It also found that
the erasures, alterations and cancellations made thereon had not been authenticated by decedent.

Thus, this appeal which is impressed with merit.

Section 9, Rule 76 of the Rules of Court provides that will shall be disallowed in any of the following cases:
 (a) If not executed and attested as required by law;

(b) If the testator was insane, or otherwise mentally incapable to make a will, at the time of its execution;

(c) If it was executed under duress, or the influence of fear, or threats;

(d) If it was procured by undue and improper pressure and influence, on the part of the beneficiary, or of some
other person for his benefit;

(e) If the signature of the testator was procured by fraud or trick, and he did not intend that the instrument
should be his will at the time of fixing his signature thereto.

In the same vein, Article 839 of the New Civil Code reads:

Art. 839: The will shall be disallowed in any of the following cases;

(1) If the formalities required by law have not been complied with;

(2) If the testator was insane, or otherwise mentally incapable of making a will, at the time of
its execution;

(3) If it was executed through force or under duress, or the influence of fear, or threats;

(4) If it was procured by undue and improper pressure and influence, on the part of the
beneficiary or of some other person;

(5) If the signature of the testator was procured by fraud;

(6) If the testator acted by mistake or did not intend that the instrument he signed should be his
will at the time of affixing his signature thereto.

These lists are exclusive; no other grounds can serve to disallow a will. 5 Thus, in a petition to admit a holographic will to
probate, the only issues to be resolved are: (1) whether the instrument submitted is, indeed, the decedent's last will and
testament; (2) whether said will was executed in accordance with the formalities prescribed by law; (3) whether the decedent
had the necessary testamentary capacity at the time the will was executed; and, (4) whether the execution of the will and its
signing were the voluntary acts of the decedent. 6

In the case at bench, respondent court held that the holographic will of Anne Sand was not executed in accordance with the
formalities prescribed by law. It held that Articles 813 and 814 of the New Civil Code, ante, were not complied with, hence, it
disallowed the probate of said will. This is erroneous.

We reiterate what we held in Abangan vs. Abangan, 40 Phil. 476, 479 (1919), that:

The object of the solemnities surrounding the execution of wills is to close the door against bad faith and fraud,
to avoid substitution of wills and testaments and to guaranty their truth and authenticity. Therefore, the laws on
this subject should be interpreted in such a way as to attain these primordial ends. But, on the other hand, also
one must not lose sight of the fact that it is not the object of the law to restrain and curtail the exercise of the
right to make a will. So when an interpretation already given assures such ends, any other interpretation
whatsoever, that adds nothing but demands more requisites entirely unnecessary, useless and frustrative of the
testator's last will, must be disregarded.

For purposes of probating non-holographic wills, these formal solemnities include the subscription, attestation, and
acknowledgment requirements under Articles 805 and 806 of the New Civil Code.

In the case of holographic wills, on the other hand, what assures authenticity is the requirement that they be totally autographic
or handwritten by the testator himself, 7 as provided under Article 810 of the New Civil Code, thus:
 A person may execute a holographic will which must be entirely written, dated, and signed by the hand of the
testator himself. It is subject to no other form, and may be made in or out of the Philippines, and need not be
witnessed. (Emphasis supplied.)

Failure to strictly observe other formalities will not result in the disallowance of a holographic will that is
unquestionably handwritten by the testator.

A reading of Article 813 of the New Civil Code shows that its requirement affects the validity of the dispositions contained in
the holographic will, but not its probate. If the testator fails to sign and date some of the dispositions, the result is that these
dispositions cannot be effectuated. Such failure, however, does not render the whole testament void.

Likewise, a holographic will can still be admitted to probate, notwithstanding non-compliance with the provisions of Article
814. In the case of Kalaw vs. Relova 132 SCRA 237 242 (1984), this Court held:

Ordinarily, when a number of erasures, corrections, and interlineations made by the testator in a holographic
Will have not been noted under his signature, . . . the Will is not thereby invalidated as a whole, but at most
only as respects the particular words erased, corrected or interlined. Manresa gave an identical commentary
when he said "la omission de la salvedad no anula el testamento, segun la regla de jurisprudencia establecida en
la sentencia de 4 de Abril de 1985." 8 (Citations omitted.)

Thus, unless the unauthenticated alterations, cancellations or insertions were made on the date of the holographic will or on
testator's signature, 9 their presence does not invalidate the will itself. 10 The lack of authentication will only result in
disallowance of such changes.

It is also proper to note that the requirements of authentication of changes and signing and dating of dispositions appear in
provisions (Articles 813 and 814) separate from that which provides for the necessary conditions for the validity of the
holographic will (Article 810). The distinction can be traced to Articles 678 and 688 of the Spanish Civil Code, from which the
present provisions covering holographic wills are taken. They read as follows:

Art. 678: A will is called holographic when the testator writes it himself in the form and with the requisites
required in Article 688.

Art. 688: Holographic wills may be executed only by persons of full age.

In order that the will be valid it must be drawn on stamped paper corresponding to the year of its execution,
written in its entirety by the testator and signed by him, and must contain a statement of the year, month and day
of its execution.

If it should contain any erased, corrected, or interlined words, the testator must identify them over his signature.

Foreigners may execute holographic wills in their own language.

This separation and distinction adds support to the interpretation that only the requirements of Article 810 of the New Civil
Code — and not those found in Articles 813 and 814 of the same Code — are essential to the probate of a holographic will.

The Court of Appeals further held that decedent Annie Sand could not validly dispose of the house and lot located in
Cabadbaran, Agusan del Norte, in its entirety. This is correct and must be affirmed.

As a general rule, courts in probate proceedings are limited to pass only upon the extrinsic validity of the will sought to be
probated. However, in exceptional instances, courts are not powerless to do what the situation constrains them to do, and pass
upon certain provisions of the will. 11 In the case at bench, decedent herself indubitably stated in her holographic will that the
Cabadbaran property is in the name of her late father, John H. Sand (which led oppositor Dr. Jose Ajero to question her
conveyance of the same in its entirety). Thus, as correctly held by respondent court, she cannot validly dispose of the whole
property, which she shares with her father's other heirs.

IN VIEW WHEREOF, the instant petition is GRANTED. The Decision of the Court of Appeals in CA-G.R. CV No. 22840,
dated March 30, 1992, is REVERSED and SET ASIDE, except with respect to the invalidity of the disposition of the entire
house and lot in Cabadbaran, Agusan del Norte. The Decision of the Regional Trial Court of Quezon City, Branch 94 in Sp.
Proc. No. Q-37171, dated November 19, 1988, admitting to probate the holographic will of decedent Annie Sand, is hereby
REINSTATED, with the above qualification as regards the Cabadbaran property. No costs.

SO ORDERED.

Narvasa, C.J., Padilla, Regalado and Mendoza, JJ., concur.

FIRST DIVISION

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

SOFIA J. NEPOMUCENO, petitioner,

vs.
THE HONORABLE COURT OF APPEALS, RUFINA GOMEZ, OSCAR JUGO ANG, CARMELITA
JUGO, respondents.

GUTIERREZ, JR., J.:

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

Martin Jugo died on July 16, 1974 in Malabon, Rizal. He left a last Will and Testament duly signed by him at the end of the
Will on page three and on the left margin of pages 1, 2 and 4 thereof in the presence of Celestina Alejandro, Myrna C. Cortez,
and Leandro Leano, who in turn, affixed their signatures below the attestation clause and on the left margin of pages 1, 2 and 4
of the Will in the presence of the testator and of each other and the Notary Public. The Will was acknowledged before the
Notary Public Romeo Escareal by the testator and his three attesting witnesses.

In the said Will, the testator named and appointed herein petitioner Sofia J. Nepomuceno as his sole and only executor of his
estate. It is clearly stated in the Will that the testator was legally married to a certain Rufina Gomez by whom he had two
legitimate children, Oscar and Carmelita, but since 1952, he had been estranged from his lawfully wedded wife and had been
living with petitioner as husband and wife. In fact, on December 5, 1952, the testator Martin Jugo and the petitioner herein,
Sofia J. Nepomuceno were married in Victoria, Tarlac before the Justice of the Peace. The testator devised to his forced heirs,
namely, his legal wife Rufina Gomez and his children Oscar and Carmelita his entire estate and the free portion thereof to herein
petitioner. The Will reads in part:

Art. III. That I have the following legal heirs, namely: my aforementioned legal wife, Rufina Gomez, and our
son, Oscar, and daughter Carmelita, both surnamed Jugo, whom I declare and admit to be legally and properly
entitled to inherit from me; that while I have been estranged from my above-named wife for so many years, I
cannot deny that I was legally married to her or that we have been separated up to the present for reasons and
justifications known fully well by them:

Art. IV. That since 1952, 1 have been living, as man and wife with one Sofia J. Nepomuceno, whom I declare
and avow to be entitled to my love and affection, for all the things which she has done for me, now and in the
past; that while Sofia J. Nepomuceno has with my full knowledge and consent, did comport and represent
myself as her own husband, in truth and in fact, as well as in the eyes of the law, I could not bind her to me in
the holy bonds of matrimony because of my aforementioned previous marriage;

On August 21, 1974, the petitioner filed a petition for the probate of the last Will and Testament of the deceased Martin Jugo in
the Court of First Instance of Rizal, Branch XXXIV, Caloocan City and asked for the issuance to her of letters testamentary.

On May 13, 1975, the legal wife of the testator, Rufina Gomez and her children filed an opposition alleging inter alia that the
execution of the Will was procured by undue and improper influence on the part of the petitioner; that at the time of the
execution of the Will, the testator was already very sick and that petitioner having admitted her living in concubinage with the
testator, she is wanting in integrity and thus, letters testamentary should not be issued to her.
On January 6, 1976, the lower court denied the probate of the Will on the ground that as the testator admitted in his Will to
cohabiting with the petitioner from December 1952 until his death on July 16, 1974, the Will's admission to probate will be an
Idle exercise because on the face of the Will, the invalidity of its intrinsic provisions is evident.

The petitioner appealed to the respondent-appellate court.

On June 2, 1982, the respondent court set aside the decision of the Court of First Instance of Rizal denying the probate of the
will. The respondent court declared the Will to be valid except that the devise in favor of the petitioner is null and void pursuant
to Article 739 in relation with Article 1028 of the Civil Code of the Philippines. The dispositive portion of the decision reads:

WHEREFORE, the decision a quo is hereby set aside, the will in question declared valid except the devise in
favor of the appellant which is declared null and void. The properties so devised are instead passed on in
intestacy to the appellant in equal shares, without pronouncement as to cost.

On June 15, 1982, oppositors Rufina Gomez and her children filed a "Motion for Correction of Clerical Error" praying that the
word "appellant" in the last sentence of the dispositive portion of the decision be changed to "appellees" so as to read: "The
properties so devised are instead passed on intestacy to the appellees in equal shares, without pronouncement as to costs." The
motion was granted by the respondent court on August 10, 1982.

On August 23, 1982, the petitioner filed a motion for reconsideration. This was denied by the respondent court in a resolution
dated December 28, 1982.

The main issue raised by the petitioner is whether or not the respondent court acted in excess of its jurisdiction when after
declaring the last Will and Testament of the deceased Martin Jugo validly drawn, it went on to pass upon the intrinsic validity of
the testamentary provision in favor of herein petitioner.

The petitioner submits that the validity of the testamentary provision in her favor cannot be passed upon and decided in the
probate proceedings but in some other proceedings because the only purpose of the probate of a Will is to establish conclusively
as against everyone that a Will was executed with the formalities required by law and that the testator has the mental capacity to
execute the same. The petitioner further contends that even if the provisions of paragraph 1 of Article 739 of the Civil Code of
the Philippines were applicable, the declaration of its nullity could only be made by the proper court in a separate action brought
by the legal wife for the specific purpose of obtaining a declaration of the nullity of the testamentary provision in the Will in
favor of the person with whom the testator was allegedly guilty of adultery or concubinage.

The respondents on the other hand contend that the fact that the last Will and Testament itself expressly admits indubitably on
its face the meretricious relationship between the testator and the petitioner and the fact that petitioner herself initiated the
presentation of evidence on her alleged ignorance of the true civil status of the testator, which led private respondents to present
contrary evidence, merits the application of the doctrine enunciated in Nuguid v. Felix Nuguid, et al. (17 SCRA 449) and Felix
Balanay, Jr. v. Hon. Antonio Martinez, et al. (G.R. No. L- 39247, June 27, 1975). Respondents also submit that the admission of
the testator of the illicit relationship between him and the petitioner put in issue the legality of the devise. We agree with the
respondents.

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

The general rule is that in probate proceedings, the court's area of inquiry is limited to an examination and resolution of the
extrinsic validity of the Will. The rule is expressed thus:

xxx xxx xxx

... It is elementary that a probate decree finally and definitively settles all questions concerning capacity of the
testator and the proper execution and witnessing of his last Will and testament, irrespective of whether its
provisions are valid and enforceable or otherwise. (Fernandez v. Dimagiba, 21 SCRA 428)

The petition below being for the probate of a Will, the court's area of inquiry is limited to the extrinsic validity
thereof. The testators testamentary capacity and the compliance with the formal requisites or solemnities
 prescribed by law are the only questions presented for the resolution of the court. Any inquiry into
the intrinsic validity or efficacy of the provisions of the will or the legality of any devise or legacy is premature.

xxx xxx xxx

True or not, the alleged sale is no ground for the dismissal of the petition for probate. Probate is one thing; the
validity of the testamentary provisions is another. The first decides the execution of the document and the
testamentary capacity of the testator; the second relates to descent and distribution (Sumilang v. Ramagosa, 21
SCRA 1369)

xxx xxx xxx

To establish conclusively as against everyone, and once for all, the facts that a will was executed with the
formalities required by law and that the testator was in a condition to make a will, is the only purpose of the
proceedings under the new code for the probate of a will. (Sec. 625). The judgment in such proceedings
determines and can determine nothing more. In them the court has no power to pass upon the validity of any
provisions made in the will. It can not decide, for example, that a certain legacy is void and another one valid. ...
(Castaneda v. Alemany, 3 Phil. 426)

The rule, however, is not inflexible and absolute. Given exceptional circumstances, the probate court is not powerless to do what
the situation constrains it to do and pass upon certain provisions of the Will.

In Nuguid v. Nuguid (17 SCRA 449) cited by the trial court, the testator instituted the petitioner as universal heir and completely
preterited her surviving forced heirs. A will of this nature, no matter how valid it may appear extrinsically, would be null and
void. Separate or latter proceedings to determine the intrinsic validity of the testamentary provisions would be superfluous.

Even before establishing the formal validity of the will, the Court in Balanay .Jr. v. Martinez (64 SCRA 452) passed upon the
validity of its intrinsic provisions.

Invoking "practical considerations", we stated:

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

We are of the opinion that in view of certain unusual provisions of the will, which are of dubious legality, and
because of the motion to withdraw the petition for probate (which the lower court assumed to have been filed
with the petitioner's authorization) the trial court acted correctly in passing upon the will's intrinsic validity even
before its formal validity had been established. The probate of a will might become an Idle ceremony if on its
face it appears to be intrinsically void. Where practical considerations demand that the intrinsic validity of the
will be passed upon, even before it is probated, the court should meet the issue (Nuguid v. Nuguid, 64 O.G.
1527, 17 SCRA 449. Compare with Sumilang vs. Ramagosa L-23135, December 26, 1967, 21 SCRA 1369;
Cacho v. Udan L-19996, April 30, 1965, 13 SCRA 693).

There appears to be no more dispute at this time over the extrinsic validity of the Will. Both parties are agreed that the Will of
Martin Jugo was executed with all the formalities required by law and that the testator had the mental capacity to execute his
Will. The petitioner states that she completely agrees with the respondent court when in resolving the question of whether or not
the probate court correctly denied the probate of Martin Jugo's last Will and Testament, it ruled:

This being so, the will is declared validly drawn. (Page 4, Decision, Annex A of Petition.)

On the other hand the respondents pray for the affirmance of the Court of Appeals' decision in toto.

The only issue, therefore, is the jurisdiction of the respondent court to declare the testamentary provision in favor of the
petitioner as null and void.

We sustain the respondent court's jurisdiction. As stated in Nuguid v. Nuguid, (supra):

 We pause to reflect. If the case were to be remanded for probate of the will, nothing will be gained. On the
contrary, this litigation will be protracted. And for aught that appears in the record, in the record, in the event of
probate or if the court rejects the will, probability exists that the case will come up once again before us on the
same issue of the intrinsic validity or nullity of the will. Result, waste of time, effort, expense, plus added
anxiety. These are the practical considerations that induce us to a belief that we might as well meet head-on the
issue of the validity of the provisions of the will in question. (Section 2, Rule 1, Rules of Court. Case, et al. v.
Jugo, et al., 77 Phil. 517, 522). After all, there exists a justiciable controversy crying for solution.

We see no useful purpose that would be served if we remand the nullified provision to the proper court in a separate action for
that purpose simply because, in the probate of a will, the court does not ordinarily look into the intrinsic validity of its
provisions.

Article 739 of the Civil Code provides:

The following donations shall be void:

(1) Those made between persons who were guilty of adultery or concubinage at the time of the donation;

(2) Those made between persons found guilty of the same criminal offense, in consideration thereof;

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

In the case referred to in No. 1, the action for declaration of nullity may be brought by the spouse of the donor
or donee; and the guilt of the donor and donee may be proved by preponderance of evidence in the same action.

Article 1028 of the Civil Code provides:

The prohibitions mentioned in Article 739, concerning donations inter vivos shall apply to testamentary
provisions.

In Article III of the disputed Will, executed on August 15, 1968, or almost six years before the testator's death on July 16, 1974,
Martin Jugo stated that respondent Rufina Gomez was his legal wife from whom he had been estranged "for so many years." He
also declared that respondents Carmelita Jugo and Oscar Jugo were his legitimate children. In Article IV, he stated that he had
been living as man and wife with the petitioner since 1952. Testator Jugo declared that the petitioner was entitled to his love and
affection. He stated that Nepomuceno represented Jugo as her own husband but "in truth and in fact, as well as in the eyes of the
law, I could not bind her to me in the holy bonds of matrimony because of my aforementioned previous marriage.

There is no question from the records about the fact of a prior existing marriage when Martin Jugo executed his Will. There is
also no dispute that the petitioner and Mr. Jugo lived together in an ostensible marital relationship for 22 years until his death.

It is also a fact that on December 2, 1952, Martin Jugo and Sofia J. Nepomuceno contracted a marriage before the Justice of the
Peace of Victoria, Tarlac. The man was then 51 years old while the woman was 48. Nepomuceno now contends that she acted in
good faith for 22 years in the belief that she was legally married to the testator.

The records do not sustain a finding of innocence or good faith. As argued by the private respondents:

First. The last will and testament itself expressly admits indubitably on its face the meretricious relationship
between the testator and petitioner, the devisee.

Second. Petitioner herself initiated the presentation of evidence on her alleged ignorance of the true civil status
of the testator, which led private respondents to present contrary evidence.

In short, the parties themselves dueled on the intrinsic validity of the legacy given in the will to petitioner by the
deceased testator at the start of the proceedings.
Whether or not petitioner knew that testator Martin Jugo, the man he had lived with as man and wife, as already
married, was an important and specific issue brought by the parties before the trial court, and passed upon by
the Court of Appeals.

Instead of limiting herself to proving the extrinsic validity of the will, it was petitioner who opted to present
evidence on her alleged good faith in marrying the testator. (Testimony of Petitioner, TSN of August 1, 1982,
pp. 56-57 and pp. 62-64).

Private respondents, naturally, presented evidence that would refute the testimony of petitioner on the point.

Sebastian Jugo, younger brother of the deceased testator, testified at length on the meretricious relationship of
his brother and petitioner. (TSN of August 18,1975).

Clearly, the good faith of petitioner was by option of the parties made a decisive issue right at the inception of
the case.

Confronted by the situation, the trial court had to make a ruling on the question.

When the court a quo held that the testator Martin Jugo and petitioner 'were deemed guilty of adultery or
concubinage', it was a finding that petitioner was not the innocent woman she pretended to be.

xxx xxx xxx

3. If a review of the evidence must be made nonetheless, then private respondents respectfully offer the
following analysis:

FIRST: The secrecy of the marriage of petitioner with the deceased testator in a town in Tarlac where neither
she nor the testator ever resided. If there was nothing to hide from, why the concealment' ? Of course, it maybe
argued that the marriage of the deceased with private respondent Rufina Gomez was likewise done in secrecy.
But it should be remembered that Rufina Gomez was already in the family way at that time and it would seem
that the parents of Martin Jugo were not in favor of the marriage so much so that an action in court was brought
concerning the marriage. (Testimony of Sebastian Jugo, TSN of August 18, 1975, pp. 29-30)

SECOND: Petitioner was a sweetheart of the deceased testator when they were still both single. That would be
in 1922 as Martin Jugo married respondent Rufina Gomez on November 29, 1923 (Exh. 3). Petitioner married
the testator only on December 5, 1952. There was a space of about 30 years in between. During those 30 years,
could it be believed that she did not even wonder why Martin Jugo did not marry her nor contact her anymore
after November, 1923 - facts that should impel her to ask her groom before she married him in secrecy,
especially so when she was already about 50 years old at the time of marriage.

THIRD: The fact that petitioner broke off from Martin Jugo in 1923 is by itself conclusive demonstration that
she new that the man she had openly lived for 22 years as man and wife was a married man with already two
children.

FOURTH: Having admitted that she knew the children of respondent Rufina Gomez, is it possible that she
would not have asked Martin Jugo whether or not they were his illegitimate or legitimate children and by
whom? That is un-Filipino.

FIFTH: Having often gone to Pasig to the residence of the parents of the deceased testator, is it possible that she
would not have known that the mother of private respondent Oscar Jugo and Carmelita Jugo was respondent
Rufina Gomez, considering that the houses of the parents of Martin Jugo (where he had lived for many years)
and that of respondent Rufina Gomez were just a few meters away?

Such pretentions of petitioner Sofia Nepomuceno are unbelievable. They are, to say the least, inherently
improbable, for they are against the experience in common life and the ordinary instincts and promptings of
human nature that a woman would not bother at all to ask the man she was going to marry whether or not he
was already married to another, knowing that her groom had children. It would be a story that would strain
 human credulity to the limit if petitioner did not know that Martin Jugo was already a married man in view of
the irrefutable fact that it was precisely his marriage to respondent Rufina Gomez that led petitioner to break off
with the deceased during their younger years.

Moreover, the prohibition in Article 739 of the Civil Code is against the making of a donation between persons who are living
in adultery or concubinage. It is the donation which becomes void. The giver cannot give even assuming that the recipient may
receive. The very wordings of the Will invalidate the legacy because the testator admitted he was disposing the properties to a
person with whom he had been living in concubinage.

WHEREFORE, the petition is DISMISSED for lack of merit. The decision of the Court of Appeals, now Intermediate Appellate
Court, is AFFIRMED. No costs.

SO ORDERED.

SECOND DIVISION

G.R. No. L-39247 June 27, 1975

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

Roberto M. Sarenas for petitioner.

Jose B. Guyo for private respondents.

AQUINO, J.:

Felix Balanay, Jr. appealed by certiorari from the order of the Court of First Instance of Davao dated February 28, 1974,
declaring illegal and void the will of his mother, Leodegaria Julian, converting the testate proceeding into an intestate
proceeding and ordering the issuance of the corresponding notice to creditors (Special Case No. 1808). The antecedents of the
appeal are as follows:

Leodegaria Julian, a native of Sta. Maria, Ilocos Sur, died on February 12, 1973 in Davao City at the age of sixty-seven. She
was survived by her husband, Felix Balanay, Sr., and by their six legitimate children named Felix Balanay, Jr., Avelina B.
Antonio, Beatriz B. Solamo, Carolina B. Manguiob, Delia B. Lanaban and Emilia B. Pabaonon.

Felix J. Balanay, Jr. filed in the lower court a petition dated February 27, 1973 for the probate of his mother's notarial will dated
September 5, 1970 which is written in English. In that will Leodegaria Julian declared (a) that she was the owner of the
"southern half of nine conjugal lots (par. II); (b) that she was the absolute owner of two parcels of land which she inherited from
her father (par. III), and (c) that it was her desire that her properties should not be divided among her heirs during her husband's
lifetime and that their legitimes should be satisfied out of the fruits of her properties (Par. IV).

Then, in paragraph V of the will she stated that after her husband's death (he was eighty-two years old in 1973) her paraphernal
lands and all the conjugal lands (which she described as "my properties") should be divided and distributed in the manner set
forth in that part of her will. She devised and partitioned the conjugal lands as if they were all owned by her. She disposed of in
the will her husband's one half share of the conjugal assets. *

Felix Balanay, Sr. and Avelina B. Antonio opposed the probate of the will on the grounds of lack of testamentary capacity,
undue influence, preterition of the husband and alleged improper partition of the conjugal estate. The oppositors claimed that
Felix Balanay, Jr. should collate certain properties which he had received from the testatrix.
Felix Balanay, Jr., in his reply to the opposition, attached thereto an affidavit of Felix Balanay, Sr. dated April 18, 1973 wherein
he withdrew his opposition to the probate of the will and affirmed that he was interested in its probate. On the same date Felix
Balanay, Sr. signed an instrument captioned "Conformation (sic) of Division and Renunciation of Hereditary Rights" wherein
he manifested that out of respect for his wife's will he "waived and renounced' his hereditary rights in her estate in favor of their
six children. In that same instrument he confirmed the agreement, which he and his wife had perfected before her death, that
their conjugal properties would be partitioned in the manner indicated in her will.

Avelina B. Antonio, an oppositor, in her rejoinder contended that the affidavit and "conformation" of Felix Balanay, Sr. were
void. The lower court in its order of June 18, 1973 "denied" the opposition and reset for hearing the probate of the will. It gave
effect to the affidavit and conformity of Felix Balanay, Sr. In an order dated August 28, 1973 it appointed its branch clerk of
court as special administrator of the decedent's estate.

Mrs. Antonio moved for the reconsideration of the lower court's order of June 18, 1973 on the grounds (a) that the testatrix
illegally claimed that she was the owner of the southern half of the conjugal lots and (b) that she could not partition the conjugal
estate by allocating portions of the nine lots to her children. Felix Balanay, Jr., through his counsel, Hermenegildo Cabreros,
opposed that motion. The lower court denied it in its order of October 15, 1973.

In the meanwhile, another lawyer appeared in the case. David O. Montaña, Sr., claiming to be the lawyer of petitioner Felix
Balanay, Jr. (his counsel of record was Atty. Cabreros), filed a motion dated September 25, 1973 for "leave of court to withdraw
probate of alleged will of Leodegaria Julian and requesting authority to proceed by intestate estate proceeding." In that motion
Montaña claimed to be the lawyer not only of the petitioner but also of Felix Balanay, Sr., Beatriz B. Solamo, Carolina B.
Manguiob and Emilia B. Pabaonon.

Montaña in his motion assailed the provision of the will which partitioned the conjugal assets or allegedly effected a
compromise of future legitimes. He prayed that the probate of the will be withdrawn and that the proceeding be converted into
an intestate proceeding. In another motion of the same date he asked that the corresponding notice to creditors be issued.

Avelina B. Antonio and Delia B. Lanaban, through Atty. Jose B. Guyo, in their comments dated October 15, 1973 manifested
their conformity with the motion for the issuance of a notice to creditors. They prayed that the will be declared void for being
contrary to law and that an intestacy be declared.

The lower court, acting on the motions of Atty. Montaña, assumed that the issuance of a notice to creditors was in order since
the parties had agreed on that point. It adopted the view of Attys. Montaña and Guyo that the will was void. So, in its order of
February 28, 1974 it dismissed the petition for the probate, converted the testate proceeding into an intestate proceeding, ordered
the issuance of a notice to creditors and set the intestate proceeding for hearing on April 1 and 2, 1974. The lower court did not
abrogate its prior orders of June 18 and October 15, 1973. The notice to creditors was issued on April 1, 1974 and published on
May 2, 9 and 16 in the Davao Star in spite of petitioner's motion of April 17, 1974 that its publication be held in abeyance.

Felix Balanay, Jr., through a new counsel, Roberto M. Sarenas, in a verified motion dated April 15, 1974, asked for the
reconsideration of the lower court's order of February 28, 1974 on the ground that Atty. Montaña had no authority to withdraw
the petition for the allowance of the will. Attached to the motion was a copy of a letter dated March 27, 1974 addressed to Atty.
Montaña and signed by Felix Balanay, Jr., Beatriz V. Solamo, Carolina B. Manguiob and Emilia B. Pabaonon, wherein they
terminated Montaña's services and informed him that his withdrawal of the petition for the probate of the will was without their
consent and was contrary to their repeated reminder to him that their mother's will was "very sacred" to them.

Avelina B. Antonio and Delia B. Lanaban opposed the motion for reconsideration. The lower court denied the motion in its
order of June 29, 1974. It clarified that it declared the will void on the basis of its own independent assessment of its provisions
and not because of Atty. Montaña's arguments.

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

We are of the opinion that in view of certain unusual provisions of the will, which are of dubious legality, and because of the
motion to withdraw the petition for probate (which the lower court assumed to have been filed with the petitioner's
authorization), the trial court acted correctly in passing upon the will's intrinsic validity even before its formal validity had been
established. The probate of a will might become an idle ceremony if on its face it appears to be intrinsically void. Where
practical considerations demand that the intrinsic validity of the will be passed upon, even before it is probated, the court should
meet the issue (Nuguid vs. Nuguid, 64 O.G. 1527, 17 SCRA 449. Compare with Sumilang vs. Ramagosa, L-23135, December
26, 1967, 21 SCRA 1369; Cacho vs. Udan, L-19996, April 30, 1965, 13 SCRA 693).1äwphï1.ñët

But the probate court erred in declaring, in its order of February 28, 1974 that the will was void and in converting the testate
proceeding into an intestate proceeding notwithstanding the fact that in its order of June 18, 1973 , it gave effect to the surviving
husband's conformity to the will and to his renunciation of his hereditary rights which presumably included his one-half share of
the conjugal estate.

The rule is that "the invalidity of one of several dispositions contained in a will does not result in the invalidity of the other
dispositions, unless it is to be presumed that the testator would not have made such other dispositions if the first invalid
disposition had not been made" (Art. 792, Civil Code). "Where some of the provisions of a will are valid and others invalid, the
valid parts will be upheld if they can be separated from the invalid without defeating the intention of the testator or interfering
with the general testamentary scheme, or doing injustice to the beneficiaries" (95 C.J.S. 873).

The statement of the testatrix that she owned the "southern half of the conjugal lands is contrary to law because, although she
was a coowner thereof, her share was inchoate and proindiviso (Art. 143, Civil Code; Madrigal and Paterno vs. Rafferty and
Concepcion, 38 Phil. 414). But That illegal declaration does not nullify the entire will. It may be disregarded.

The provision of the will that the properties of the testatrix should not be divided among her heirs during her husband's lifetime
but should be kept intact and that the legitimes should be paid in cash is contrary to article 1080 of the Civil Code which reads:

ART. 1080. Should a person make a partition of his estate by an act inter vivos, or by will, such partition shall
be respected, insofar as it does not prejudice the legitime of the compulsory heirs.

A parent who, in the interest of his or her family, to keep any agricultural, industrial, or manufacturing
enterprise intact, may avail himself of the right granted him in this article, by ordering that the legitime of the
other children to whom the property is not assigned be paid in cash. (1056a)

The testatrix in her will made a partition of the entire conjugal estate among her six children (her husband had renounced his
hereditary rights and his one-half conjugal share). She did not assign the whole estate to one or more children as envisaged in
article 1080. Hence, she had no right to require that the legitimes be paid in cash. On the other hand, her estate may remain
undivided only for a period of twenty years. So, the provision that the estate should not be divided during her husband's lifetime
would at most be effective only for twenty years from the date of her death unless there are compelling reasons for terminating
the coownership (Art. 1083, Civil Code).

Felix Balanay, Sr. could validly renounce his hereditary rights and his one-half share of the conjugal partnership (Arts. 179[1]
and 1041, Civil Code) but insofar as said renunciation partakes of a donation of his hereditary rights and his one-half share in
the conjugal estate (Art. 1060[1] Civil Code), it should be subject to the limitations prescribed in articles 750 and 752 of the
Civil Code. A portion of the estate should be adjudicated to the widower for his support and maintenance. Or at least his
legitime should be respected.

Subject to the foregoing observations and the rules on collation, the will is intrinsically valid and the partition therein may be
given effect if it does not prejudice the creditors and impair the legitimes. The distribution and partition would become effective
upon the death of Felix Balanay, Sr. In the meantime, the net income should be equitably divided among the children and the
surviving spouse.

It should be stressed that by reason of the surviving husband's conformity to his wife's will and his renunciation of his hereditary
rights, his one-half conjugal share became a part of his deceased wife's estate. His conformity had the effect of validating the
partition made in paragraph V of the will without prejudice, of course, to the rights of the creditors and the legitimes of the
compulsory heirs.

Article 793 of the Civil Code provides that "property acquired after the making of a will shall only pass thereby, as if the testator
had it at the time of making the will, should it expressly appear by the will that such was his intention". Under article 930 of the
Civil Code "the legacy or devise of a thing belonging to another person is void, if the testator erroneously believed that the thing
pertained to him. But if the thing bequeathed, though not belonging to the testator when he made the will, afterwards becomes
his, by whatever title, the disposition shall take effect."
In the instant case there is no doubt that the testatrix and her husband intended to partition the conjugal estate in the manner set
forth in paragraph V of her will. It is true that she could dispose of by will only her half of the conjugal estate (Art. 170, Civil
Code) but since the husband, after the dissolution of the conjugal partnership, had assented to her testamentary partition of the
conjugal estate, such partition has become valid, assuming that the will may be probated.

The instant case is different from the Nuguid case, supra, where the testatrix instituted as heir her sister and preterited her
parents. Her will was intrinsically void because it preterited her compulsory heirs in the direct line. Article 854 of the Civil
Code provides that "the preterition or omission of one, some, or all of the compulsory heirs in the direct line, whether living at
the time of the execution of the will or born after the death of the testator, shall annul the institution of heir; but the devises and
legacies, shall be valid insofar as they are not inofficious." Since the preterition of the parents annulled the institution of the
sister of the testatrix and there were no legacies and devises, total intestacy resulted (.Art. 960[2], Civil Code).1äwphï1.ñët

In the instant case, the preterited heir was the surviving spouse. His preterition did not produce intestacy. Moreover, he signified
his conformity to his wife's will and renounced his hereditary rights. .

It results that the lower court erred in not proceeding with the probate of the will as contemplated in its uncancelled order of
June 18, 1973. Save in an extreme case where the will on its face is intrinsically void, it is the probate court's duty to pass first
upon the formal validity of the will. Generally, the probate of the will is mandatory (Art. 838, Civil Code; Guevara vs. Guevara,
74 Phil. 479 and 98 Phil. 249; Fernandez vs. Dimagiba, L-23638, October 12, 1967, 21 SCRA 428).

As aptly stated by Mr. Justice Barredo, "the very existence of a purported testament is in itself prima facie proof that the
supposed testator has willed that his estate should be distributed in the manner therein provided, and it is incumbent upon the
state that, if legally tenable, such desire be given effect independent of the attitude of the parties affected thereby" (Resolution,
Vda. de Precilla vs. Narciso, L-27200, August 18, 1972, 46 SCRA 538, 565).

To give effect to the intention and wishes of the testatrix is the first and principal law in the matter of testaments (Dizon-Rivera
vs. Dizon, L-24561, June 30, 1970, 33 SCRA 554, 561). Testacy is preferable to intestacy. An interpretation that will render a
testamentary disposition operative takes precedence over a construction that will nullify a provision of the will (Arts. 788 and
791, Civil Code).

Testacy is favored. Doubts are resolved in favor of testacy especially where the will evinces an intention on the part of the
testator to dispose of practically his whole estate. So compelling is the principle that intestacy should be avoided and that the
wishes of the testator should prevail that sometimes the language of the will can be varied for the purpose of giving it effect
(Austria vs. Reyes, L-23079, February 27, 1970, 31 SCRA 754, 762).

As far as is legally possible, the expressed desire of the testator must be followed and the dispositions of the properties in his
will should be upheld (Estorque vs. Estorque, L-19573, June 30, 1970, 33 SCRA 540, 546).

The law has a tender regard for the wishes of the testator as expressed in his will because any disposition therein is better than
that which the law can make (Castro vs. Bustos, L-25913, February 28, 1969, 27 SCRA 327, 341).

Two other errors of the lower court may be noticed. It erred in issuing a notice to creditors although no executor or regular
administrator has been appointed. The record reveals that it appointed a special administrator. A notice to creditors is not in
order if only a special administrator has been appointed. Section 1, Rule 86 of the Rules of Court, in providing that
"immediately after granting letters of testamentary or of administration, the court shall issue a notice requiring all persons
having money claims against the decedent to file them in the office of the clerk of said court" clearly contemplates the
appointment of an executor or regular administrator and not that of a special administrator.

It is the executor or regular administrator who is supposed to oppose the claims against the estate and to pay such claims when
duly allowed (See. 10, Rule 86 and sec. 1, Rule 88, Rules of Court).

We also take this occasion to point out that the probate court's appointment of its branch clerk of court as special administrator
(p. 30, Rollo) is not a salutary practice because it might engender the suspicion that the probate Judge and his clerk of court are
in cahoots in milking the decedent's estate. Should the branch clerk of court commit any abuse or devastavit in the course of his
administration, the probate Judge might find it difficult to hold him to a strict accountability. A court employee should devote
his official time to his official duties and should not have as a sideline the administration of a decedent's estate.
WHEREFORE, the lower court's orders of February 28, and June 29, 1974 are set aside and its order of June 18, 1973, setting
for hearing the petition for probate, is affirmed. The lower court is directed to conduct further proceedings in Special Case No.
1808 in consonance with this opinion. Costs, against the private respondents.

SO ORDERED.

EN BANC

G.R. No. 72706 October 27, 1987

CONSTANTINO C. ACAIN, petitioner,

vs.
HON. INTERMEDIATE APPELLATE COURT (Third Special Cases Division), VIRGINIA A. FERNANDEZ and
ROSA DIONGSON, respondents.

PARAS, J.:

This is a petition for review on certiorari of the decision * of respondent. Court of Appeals in AC-G.R. SP No. 05744
promulgated on August 30, 1985 (Rollo, p. 108) ordering the dismissal of the petition in Special Proceedings No, 591 ACEB
and its Resolution issued on October 23, 1985 (Rollo, p. 72) denying respondents' (petitioners herein) motion for
reconsideration.

The dispositive portion of the questioned decision reads as follows:

WHEREFORE, the petition is hereby granted and respondent Regional Trial Court of the Seventh Judicial
Region, Branch XIII (Cebu City), is hereby ordered to dismiss the petition in Special Proceedings No. 591
ACEB No special pronouncement is made as to costs.

The antecedents of the case, based on the summary of the Intermediate Appellate Court, now Court of Appeals, (Rollo, pp. 108-
109) are as follows:

On May 29, 1984 petitioner Constantino Acain filed on the Regional Trial Court of Cebu City Branch XIII, a petition for the
probate of the will of the late Nemesio Acain and for the issuance to the same petitioner of letters testamentary, docketed as
Special Proceedings No. 591 ACEB (Rollo, p. 29), on the premise that Nemesio Acain died leaving a will in which petitioner
and his brothers Antonio, Flores and Jose and his sisters Anita, Concepcion, Quirina and Laura were instituted as heirs. The will
allegedly executed by Nemesio Acain on February 17, 1960 was written in Bisaya (Rollo, p. 27) with a translation in English
(Rollo, p. 31) submi'tted by petitioner without objection raised by private respondents. The will contained provisions on burial
rites, payment of debts, and the appointment of a certain Atty. Ignacio G. Villagonzalo as the executor of the testament. On the
disposition of the testator's property, the will provided:

THIRD: All my shares that I may receive from our properties. house, lands and money which I earned jointly
with my wife Rosa Diongson shall all be given by me to my brother SEGUNDO ACAIN Filipino, widower, of
legal age and presently residing at 357-C Sanciangko Street, Cebu City. In case my brother Segundo Acain pre-
deceased me, all the money properties, lands, houses there in Bantayan and here in Cebu City which constitute
my share shall be given to me to his children, namely: Anita, Constantino, Concepcion, Quirina, laura, Flores,
Antonio and Jose, all surnamed Acain.

Obviously, Segundo pre-deceased Nemesio. Thus it is the children of Segundo who are claiming to be heirs, with Constantino
as the petitioner in Special Proceedings No. 591 ACEB

After the petition was set for hearing in the lower court on June 25, 1984 the oppositors (respondents herein Virginia A.
Fernandez, a legally adopted daughter of tile deceased and the latter's widow Rosa Diongson Vda. de Acain filed a motion to
dismiss on the following grounds for the petitioner has no legal capacity to institute these proceedings; (2) he is merely a
universal heir and (3) the widow and the adopted daughter have been pretirited. (Rollo, p. 158). Said motion was denied by the
trial judge.
After the denial of their subsequent motion for reconsideration in the lower court, respondents filed with the Supreme Court a
petition for certiorari and prohibition with preliminary injunction which was subsequently referred to the Intermediate Appellate
Court by Resolution of the Court dated March 11, 1985 (Memorandum for Petitioner, p. 3; Rollo, p. 159).

Respondent Intermediate Appellate Court granted private respondents' petition and ordered the trial court to dismiss the petition
for the probate of the will of Nemesio Acain in Special Proceedings No. 591 ACEB

His motion for reconsideration having been denied, petitioner filed this present petition for the review of respondent Court's
decision on December 18, 1985 (Rollo, p. 6). Respondents' Comment was filed on June 6, 1986 (Rollo, p. 146).

On August 11, 1986 the Court resolved to give due course to the petition (Rollo, p. 153). Respondents' Memorandum was filed
on September 22, 1986 (Rollo, p. 157); the Memorandum for petitioner was filed on September 29, 1986 (Rollo, p. 177).

Petitioner raises the following issues (Memorandum for petitioner, p. 4):

(A) The petition filed in AC-G.R. No. 05744 for certiorari and prohibition with preliminary injunction is not the
proper remedy under the premises;

(B) The authority of the probate courts is limited only to inquiring into the extrinsic validity of the will sought
to be probated and it cannot pass upon the intrinsic validity thereof before it is admitted to probate;

(C) The will of Nemesio Acain is valid and must therefore, be admitted to probate. The preterition mentioned in
Article 854 of the New Civil Code refers to preterition of "compulsory heirs in the direct line," and does not
apply to private respondents who are not compulsory heirs in the direct line; their omission shall not annul the
institution of heirs;

(D) DICAT TESTATOR ET MERIT LEX. What the testator says will be the law;

(E) There may be nothing in Article 854 of the New Civil Code, that suggests that mere institution of a
universal heir in the will would give the heir so instituted a share in the inheritance but there is a definite
distinct intention of the testator in the case at bar, explicitly expressed in his will. This is what matters and
should be in violable.

(F) As an instituted heir, petitioner has the legal interest and standing to file the petition in Sp. Proc. No. 591
ACEB for probate of the will of Nemesio Acain and

(G) Article 854 of the New Civil Code is a bill of attainder. It is therefore unconstitutional and ineffectual.

The pivotal issue in this case is whether or not private respondents have been pretirited.

Article 854 of the Civil Code provides:

Art. 854. The preterition or omission of one, some, or all of the compulsory heirs in the direct line, whether
living at the time of the execution of the will or born after the death of the testator, shall annul the institution of
heir; but the devisees and legacies shall be valid insofar as they are not; inofficious.

If the omitted compulsory heirs should die before the testator, the institution shall he effectual, without
prejudice to the right of representation.

Preterition consists in the omission in the testator's will of the forced heirs or anyone of them either because they are not
mentioned therein, or, though mentioned, they are neither instituted as heirs nor are expressly disinherited (Nuguid v. Nuguid,
17 SCRA 450 [1966]; Maninang v. Court of Appeals, 114 SCRA 478 [1982]). Insofar as the widow is concerned, Article 854 of
the Civil Code may not apply as she does not ascend or descend from the testator, although she is a compulsory heir. Stated
otherwise, even if the surviving spouse is a compulsory heir, there is no preterition even if she is omitted from the inheritance,
for she is not in the direct line. (Art. 854, Civil code) however, the same thing cannot be said of the other respondent Virginia A.
Fernandez, whose legal adoption by the testator has not been questioned by petitioner (.Memorandum for the Petitioner, pp. 8-
9). Under Article 39 of P.D. No. 603, known as the Child and Youth Welfare Code, adoption gives to the adopted person the
same rights and duties as if he were a legitimate child of the adopter and makes the adopted person a legal heir of the adopter. It
cannot be denied that she has totally omitted and preterited in the will of the testator and that both adopted child and the widow
were deprived of at least their legitime. Neither can it be denied that they were not expressly disinherited. Hence, this is a clear
case of preterition of the legally adopted child.

Pretention annuls the institution of an heir and annulment throws open to intestate succession the entire inheritance including "la
porcion libre (que) no hubiese dispuesto en virtual de legado mejora o donacion" Maniesa as cited in Nuguid v. Nuguid, supra;
Maninang v. Court of Appeals, 114 SCRA [1982]). The only provisions which do not result in intestacy are the legacies and
devises made in the will for they should stand valid and respected, except insofar as the legitimes are concerned.

The universal institution of petitioner together with his brothers and sisters to the entire inheritance of the testator results in
totally abrogating the will because the nullification of such institution of universal heirs-without any other testamentary
disposition in the will-amounts to a declaration that nothing at all was written. Carefully worded and in clear terms, Article 854
of the Civil Code offers no leeway for inferential interpretation (Nuguid v. Nuguid), supra. No legacies nor devises having been
provided in the will the whole property of the deceased has been left by universal title to petitioner and his brothers and sisters.
The effect of annulling the "Institution of heirs will be, necessarily, the opening of a total intestacy (Neri v. Akutin, 74 Phil. 185
[1943]) except that proper legacies and devises must, as already stated above, be respected.

We now deal with another matter. In order that a person may be allowed to intervene in a probate proceeding he must have an
interest iii the estate, or in the will, or in the property to be affected by it either as executor or as a claimant of the estate and an
interested party is one who would be benefited by the estate such as an heir or one who has a claim against the estate like a
creditor (Sumilang v. Ramagosa, 21 SCRA 1369/1967). Petitioner is not the appointed executor, neither a devisee or a legatee
there being no mention in the testamentary disposition of any gift of an individual item of personal or real property he is called
upon to receive (Article 782, Civil Code). At the outset, he appears to have an interest in the will as an heir, defined under
Article 782 of the Civil Code as a person called to the succession either by the provision of a will or by operation of law.
However, intestacy having resulted from the preterition of respondent adopted child and the universal institution of heirs,
petitioner is in effect not an heir of the testator. He has no legal standing to petition for the probate of the will left by the
deceased and Special Proceedings No. 591 A-CEB must be dismissed.

As a general rule certiorari cannot be a substitute for appeal, except when the questioned order is an oppressive exercise of j
judicial authority (People v. Villanueva, 110 SCRA 465 [1981]; Vda. de Caldito v. Segundo, 117 SCRA 573 [1982]; Co Chuan
Seng v. Court of Appeals, 128 SCRA 308 [1984]; and Bautista v. Sarmiento, 138 SCRA 587 [1985]). It is axiomatic that the
remedies of certiorari and prohibition are not available where the petitioner has the remedy of appeal or some other plain,
speedy and adequate remedy in the course of law (DD Comendador Construction Corporation v. Sayo (118 SCRA 590 [1982]).
They are, however, proper remedies to correct a grave abuse of discretion of the trial court in not dismissing a case where the
dismissal is founded on valid grounds (Vda. de Bacang v. Court of Appeals, 125 SCRA 137 [1983]).

Special Proceedings No. 591 ACEB is for the probate of a will. As stated by respondent Court, the general rule is that the
probate court's authority is limited only to the extrinsic validity of the will, the due execution thereof, the testator's testamentary
capacity and the compliance with the requisites or solemnities prescribed by law. The intrinsic validity of the will normally
comes only after the Court has declared that the will has been duly authenticated. Said court at this stage of the proceedings is
not called upon to rule on the intrinsic validity or efficacy of the provisions of the will (Nuguid v. Nuguid, 17 SCRA 449
[1966]; Sumilang v. Ramagosa, supra; Maninang v. Court of Appeals, 114 SCRA 478 [1982]; Cayetano v. Leonides, 129
SCRA 522 [1984]; and Nepomuceno v. Court of Appeals, 139 SCRA 206 [1985]).

The rule, however, is not inflexible and absolute. Under 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 (Nepomuceno v. Court of Appeals, supra). In
Nuguid v. Nuguid the oppositors to the probate moved to dismiss on the ground of absolute preteriton The probate court acting
on the motion held that the will in question was a complete nullity and dismissed the petition without costs. On appeal the
Supreme Court upheld the decision of the probate court, induced by practical considerations. The Court said:

We pause to reflect. If the case were to be remanded for probate of the will, nothing will be gained. On the
contrary, this litigation will be protracted. And for aught that appears in the record, in the event of probate or if
the court rejects the will, probability exists that the case will come up once again before us on the same issue of
the intrinsic validity or nullity of the will. Result: waste of time, effort, expense, plus added anxiety. These are
the practical considerations that induce us to a belief that we might as well meet head-on the issue of the
validity of the provisions of the will in question. After all there exists a justiciable controversy crying for
solution.
In Saguimsim v. Lindayag (6 SCRA 874 [1962]) the motion to dismiss the petition by the surviving spouse was grounded on
petitioner's lack of legal capacity to institute the proceedings which was fully substantiated by the evidence during the hearing
held in connection with said motion. The Court upheld the probate court's order of dismissal.

In Cayetano v. Leonides, supra one of the issues raised in the motion to dismiss the petition deals with the validity of the
provisions of the will. Respondent Judge allowed the probate of the will. The Court held that as on its face the will appeared to
have preterited the petitioner the respondent judge should have denied its probate outright. Where circumstances demand that
intrinsic validity of testamentary provisions be passed upon even before the extrinsic validity of the will is resolved, the probate
court should meet the issue. (Nepomuceno v. Court of Appeals, supra; Nuguid v. Nuguid, supra).

In the instant case private respondents filed a motion to dismiss the petition in Sp. Proceedings No. 591 ACEB of the Regional
Trial Court of Cebu on the following grounds: (1) petitioner has no legal capacity to institute the proceedings; (2) he is merely a
universal heir; and (3) the widow and the adopted daughter have been preterited (Rollo, p. 158). It was denied by the trial court
in an order dated January 21, 1985 for the reason that "the grounds for the motion to dismiss are matters properly to be resolved
after a hearing on the issues in the course of the trial on the merits of the case (Rollo, p. 32). A subsequent motion for
reconsideration was denied by the trial court on February 15, 1985 (Rollo, p. 109).

For private respondents to have tolerated the probate of the will and allowed the case to progress when on its face the will
appears to be intrinsically void as petitioner and his brothers and sisters were instituted as universal heirs coupled with the
obvious fact that one of the private respondents had been preterited would have been an exercise in futility. It would have meant
a waste of time, effort, expense, plus added futility. The trial court could have denied its probate outright or could have passed
upon the intrinsic validity of the testamentary provisions before the extrinsic validity of the will was resolved (Cayetano v.
Leonides, supra; Nuquid v. Nuguid, supra. The remedies of certiorari and prohibition were properly availed of by private
respondents.

Thus, this Court ruled that where the grounds for dismissal are indubitable, the defendants had the right to resort to the more
speedy, and adequate remedies of certiorari and prohibition to correct a grave abuse of discretion, amounting to lack of
jurisdiction, committed by the trial court in not dismissing the case, (Vda. de Bacang v. Court of Appeals, supra) and even
assuming the existence of the remedy of appeal, the Court harkens to the rule that in the broader interests of justice, a petition
for certiorari may be entertained, particularly where appeal would not afford speedy and adequate relief. (Maninang Court of
Appeals, supra).

PREMISES CONSIDERED, the petition is hereby DENIED for lack of merit and the questioned decision of respondent Court
of Appeals promulgated on August 30, 1985 and its Resolution dated October 23, 1985 are hereby AFFIRMED.

SO ORDERED.

Teehankee, C.J., Yap, Fernan, Narvasa, Gutierrez, Jr., Cruz, Feliciano, Gancayco, Padilla, Bidin, Sarmiento and Cortes, JJ.,
concur.

Separate Opinions

MELENCIO-HERRERA, J., concurring:

I concur in the result on the basic proposition that preterition in this case was by mistake or inadvertence.

To my mind, an important distinction has to be made as to whether the omission of a forced heir in the will of a testator is by
mistake or inadvertence, or voluntary or intentional. If by mistake or inadvertence, there is true preterirton and total intestacy
results. The reason for this is the "inability to determine how the testator would have distributed his estate if none of the heirs
had been omitted or forgotten (An Outline of Civil Law, J.B.L. Reyes and R.C. Puno, Vol. III, p. 54).
The requisites of preterition are:

1. The heir omitted is a forced heir (in the direct line);

2. The ommission is by mistake or thru an oversight.

3. The omission is complete so that the forced heir received nothing in the will. (111 Padilla, Civil Code
Annotated, 1973 Edition, pp. 224-225) (Parenthetical addendum supplied).

On the other hand, if the omission is intentional, the effect would be a defective disinheritance covered by Article 918 of the
Civil Code in which case the institution of heir is not wholly void but only insofar as it prejudices the legitime of the person
disinherited. Stated otherwise. the nullity is partial unlike in true preterition where the nullity is total.

Pretention is presumed to be only an involuntary omission; that is, that if the testator had known of the
existence of the compulsory heir at the time of the execution of the will, he would have instituted such heir. On
the other hand, if the testator attempts to disinherit a compulsory heir, the presumption of the law is that he
wants such heir to receive as little as possible from his estate. (III Tolentino, Civil Code, 1973 Edition, pp. 174-
175).

In the case at bar, there seems to have been mistake or in advertence in the omission of the adopted daughter, hence, my
concurrence in the result that total intestacy ensued.

Separate Opinions

MELENCIO-HERRERA, J., concurring:

I concur in the result on the basic proposition that preterition in this case was by mistake or inadvertence.

To my mind, an important distinction has to be made as to whether the omission of a forced heir in the will of a testator is by
mistake or inadvertence, or voluntary or intentional. If by mistake or inadvertence, there is true preterirton and total intestacy
results. The reason for this is the "inability to determine how the testator would have distributed his estate if none of the heirs
had been omitted or forgotten (An Outline of Civil Law, J.B.L. Reyes and R.C. Puno, Vol. III, p. 54).

The requisites of preterition are:

1. The heir omitted is a forced heir (in the direct line);

2. The ommission is by mistake or thru an oversight.

3. The omission is complete so that the forced heir received nothing in the will. (111 Padilla, Civil Code
Annotated, 1973 Edition, pp. 224-225) (Parenthetical addendum supplied).

On the other hand, if the omission is intentional, the effect would be a defective disinheritance covered by Article 918 of the
Civil Code in which case the institution of heir is not wholly void but only insofar as it prejudices the legitime of the person
disinherited. Stated otherwise. the nullity is partial unlike in true preterition where the nullity is total.

Pretention is presumed to be only an involuntary omission; that is, that if the testator had known of the
existence of the compulsory heir at the time of the execution of the will, he would have instituted such heir. On
the other hand, if the testator attempts to disinherit a compulsory heir, the presumption of the law is that he
wants such heir to receive as little as possible from his estate. (III Tolentino, Civil Code, 1973 Edition, pp. 174-
175).
In the case at bar, there seems to have been mistake or in advertence in the omission of the adopted daughter, hence, my
concurrence in the result that total intestacy ensued.
SECOND DIVISION

JARABINI G. DEL ROSARIO, G.R. No. 187056

Petitioner,
Present:
CARPIO, J., Chairperson,
- versus - PERALTA,
BERSAMIN,*
ABAD, and
PEREZ,** JJ.
ASUNCION G. FERRER, substituted
by her heirs, VICENTE, PILAR,
ANGELITO, FELIXBERTO, JR.,
all surnamed G. FERRER, and Promulgated:
MIGUELA FERRER ALTEZA,
Respondents. September 20, 2010

x --------------------------------------------------------------------------------------- x

DECISION

ABAD, J.:

This case pertains to a gift, otherwise denominated as a donation mortis causa, which in reality is a donation inter
vivos made effective upon its execution by the donors and acceptance thereof by the donees, and immediately transmitting
ownership of the donated property to the latter, thus precluding a subsequent assignment thereof by one of the donors.

The Facts and the Case

On August 27, 1968 the spouses Leopoldo and Guadalupe Gonzales executed a document entitled Donation Mortis
[1]
Causa in favor of their two children, Asuncion and Emiliano, and their granddaughter, Jarabini (daughter of their predeceased
son, Zoilo) covering the spouses 126-square meter lot and the house on it in Pandacan, Manila[2] in equal shares. The deed of
donation reads:

It is our will that this Donation Mortis Causa shall be irrevocable and shall be respected by the
surviving spouse.

It is our will that Jarabini Gonzales-del Rosario and Emiliano Gonzales will continue to occupy the
portions now occupied by them.

It is further our will that this DONATION MORTIS CAUSA shall not in any way affect any other
distribution of other properties belonging to any of us donors whether testate or intestate and where ever
situated.

It is our further will that any one surviving spouse reserves the right, ownership, possession and
administration of this property herein donated and accepted and this Disposition and Donation shall be
operative and effective upon the death of the DONORS.[3]

Although denominated as a donation mortis causa, which in law is the equivalent of a will, the deed had no attestation
clause and was witnessed by only two persons. The named donees, however, signified their acceptance of the donation on the face
of the document.
 Guadalupe, the donor wife, died in September 1968. A few months later or on December 19, 1968, Leopoldo, the donor
husband, executed a deed of assignment of his rights and interests in subject property to their daughter Asuncion. Leopoldo died
in June 1972.

In 1998 Jarabini filed a petition for the probate of the August 27, 1968 deed of donation mortis causa before the Regional
Trial Court (RTC) of Manila in Sp. Proc. 98-90589.[4] Asuncion opposed the petition, invoking his father Leopoldos assignment
of his rights and interests in the property to her.

After trial, the RTC rendered a decision dated June 20, 2003,[5] finding that the donation was in fact one made inter vivos,
the donors intention being to transfer title over the property to the donees during the donors lifetime, given its
irrevocability. Consequently, said the RTC, Leopoldos subsequent assignment of his rights and interest in the property was void
since he had nothing to assign. The RTC thus directed the registration of the property in the name of the donees in equal shares.[6]

On Asuncions appeal to the Court of Appeals (CA), the latter rendered a decision on December 23, 2008,[7] reversing that
of the RTC. The CA held that Jarabini cannot, through her petition for the probate of the deed of donation mortis causa, collaterally
attack Leopoldos deed of assignment in Asuncions favor. The CA further held that, since no proceeding exists for the allowance
of what Jarabini claimed was actually a donation inter vivos, the RTC erred in deciding the case the way it did. Finally, the CA
held that the donation, being one given mortis causa, did not comply with the requirements of a notarial will,[8] rendering the same
void.Following the CAs denial of Jarabinis motion for reconsideration,[9] she filed the present petition with this Court.

Issue Presented

The key issue in this case is whether or not the spouses Leopoldo and Guadalupes donation to Asuncion, Emiliano, and
Jarabini was a donation mortis causa, as it was denominated, or in fact a donation inter vivos.

The Courts Ruling

That the document in question in this case was captioned Donation Mortis Causa is not controlling. This Court has held
that, if a donation by its terms is inter vivos, this character is not altered by the fact that the donor styles it mortis causa.[10]

In Austria-Magat v. Court of Appeals,[11] the Court held that irrevocability is a quality absolutely incompatible with the
idea of conveyances mortis causa, where revocability is precisely the essence of the act. A donation mortis causa has the
following characteristics:

1. It conveys no title or ownership to the transferee before the death of the transferor; or, what
amounts to the same thing, that the transferor should retain the ownership (full or naked) and control of
the property while alive;

2. That before his death, the transfer should be revocable by the transferor at will, ad nutum; but
revocability may be provided for indirectly by means of a reserved power in the donor to dispose of the
properties conveyed; and

3. That the transfer should be void if the transferor should survive the transferee.[12] (Underscoring
supplied)

The Court thus said in Austria-Magat that the express irrevocability of the donation is the distinctive standard that
identifies the document as a donation inter vivos. Here, the donors plainly said that it is our will that this Donation Mortis
Causa shall be irrevocable and shall be respected by the surviving spouse. The intent to make the donation irrevocable becomes
even clearer by the proviso that a surviving donor shall respect the irrevocability of the donation. Consequently, the donation was
in reality a donation inter vivos.

The donors in this case of course reserved the right, ownership, possession, and administration of the property and made
the donation operative upon their death. But this Court has consistently held that such reservation (reddendum) in the context of
an irrevocable donation simply means that the donors parted with their naked title, maintaining only beneficial ownership of the
donated property while they lived.[13]

Notably, the three donees signed their acceptance of the donation, which acceptance the deed required.[14] This Court has
held that an acceptance clause indicates that the donation is inter vivos, since acceptance is a requirement only for such kind of
donations. Donations mortis causa, being in the form of a will, need not be accepted by the donee during the donors lifetime.[15]
 Finally, as Justice J. B. L. Reyes said in Puig v. Peaflorida,[16] in case of doubt, the conveyance should be deemed a
donation inter vivos rather than mortis causa, in order to avoid uncertainty as to the ownership of the property subject of the deed.

Since the donation in this case was one made inter vivos, it was immediately operative and final. The reason is that such
kind of donation is deemed perfected from the moment the donor learned of the donees acceptance of the donation. The acceptance
makes the donee the absolute owner of the property donated.[17]

Given that the donation in this case was irrevocable or one given inter vivos, Leopoldos subsequent assignment of his
rights and interests in the property to Asuncion should be regarded as void for, by then, he had no more rights to assign. He could
not give what he no longer had. Nemo dat quod non habet.[18]

The trial court cannot be faulted for passing upon, in a petition for probate of what was initially supposed to be a
donation mortis causa, the validity of the document as a donation inter vivos and the nullity of one of the donors subsequent
assignment of his rights and interests in the property. The Court has held before that the rule on probate is not inflexible and
absolute.[19] Moreover, in opposing the petition for probate and in putting the validity of the deed of assignment squarely in
issue, Asuncion or those who substituted her may not now claim that the trial court improperly allowed a collateral attack on such
assignment.

WHEREFORE, the Court GRANTS the petition, SETS ASIDE the assailed December 23, 2008 Decision and March
6, 2009 Resolution of the Court of Appeals in CA-G.R. CV 80549, and REINSTATES in toto the June 20, 2003 Decision of the
Regional Trial Court of Manila, Branch 19, in Sp. Proc. 98-90589.

SO ORDERED.
SECOND DIVISION

[G.R. No. 124099. October 30, 1997]

MANUEL G. REYES, MILA G. REYES, DANILO G. REYES, LYN AGAPE, MARITES AGAPE, ESTABANA
GALOLO, and CELSA AGAPE, petitioners, vs. COURT OF APPEALS AND JULIO VIVARES, respondents.

DECISION
TORRES, JR., J.:
Unless legally flawed, a testators intention in his last will and testament is its life and soul which deserves reverential
observance.
The controversy before us deals with such a case.
Petitioners Manuel G. Reyes, Mila G. Reyes, Danilo G. Reyes, Lyn Agape, Marites Agape, Estebana Galolo and Celsa
Agape, the oppositors in Special Proceedings No. 112 for the probate of the will of Torcuato J. Reyes, assail in this petition for
review the decision of the Court of Appeals[1] dated November 29, 1995, the dispositive portion of which reads:

WHEREFORE, premises considered, the judgment appealed from allowing or admitting the will of Torcuato J. Reyes to probate
and directing the issuance of Letter Testamentary in favor of petitioner Julio A. Vivares as executor without bond is
AFFIRMED but modified in that the declaration that paragraph II of the Torcuato Reyes' last will and testament, including
subparagraphs (a) and (b) are null and void for being contrary to law is hereby SET ASIDE, said paragraphs (a) and (b) are
declared VALID. Except as above modified, the judgment appealed from is AFFIRMED.

SO ORDERED."[2]
The antecedent facts:
On January 3, 1992, Torcuato J. Reyes executed his last will and testament declaring therein in part, to wit:

xxx
II. I give and bequeath to my wife Asuncion Oning R. Reyes the following properties to wit:

a. All my shares of our personal properties consisting among others of jewelries, coins, antiques, statues, tablewares, furnitures,
fixtures and the building;

b. All my shares consisting of one half (1/2) or 50% of all the real estates I own in common with my brother Jose, situated in
Municipalities of Mambajao, Mahinog, Guinsiliban, Sagay all in Camiguin; real estates in Lunao, Ginoong, Caamulan,
Sugbongcogon, Boloc-Boloc, Kinoguinatan, Balingoan, Sta. Ines, Caesta, Talisayan, all in the province of Misamis Oriental.[3]
The will consisted of two pages and was signed by Torcuato Reyes in the presence of three witnesses: Antonio Veloso, Gloria
Borromeo, and Soledad Gaputan. Private respondent Julio A. Vivares was designated the executor and in his default or incapacity,
his son Roch Alan S. Vivares.
Reyes died on May 12, 1992 and on May 21, 1992, private respondent filed a petition for probate of the will before the
Regional Trial Court of Mambajao, Camiguin. The petitioner was set for hearing and the order was published in the Mindanao
Daily Post, a newspaper of general circulation, once a week for three consecutive weeks. Notices were likewise sent to all the
persons named in the petition.
On July 21, 1992, the recognized natural children of Torcuato Reyes with Estebana Galolo, namely Manuel, Mila, and Danilo
all surnamed Reyes, and the deceaseds natural children with Celsa Agape, namely Lyn and Marites Agape, filed an opposition
with the following allegations: a) that the last will and testament of Reyes was not executed and attested in accordance with the
formalities of law; and b) that Asuncion Reyes Ebarle exerted undue and improper influence upon the testator at the time of the
execution of the will. The opposition further averred that Reyes was never married to and could never marry Asuncion Reyes, the
woman he claimed to be his wife in the will, because the latter was already married to Lupo Ebarle who was still then alive and
their marriage was never annulled. Thus Asuncion can not be a compulsory heir for her open cohabitation with Reyes was violative
of public morals.
On July 22, 1992, the trial court issued an ordering declaring that it had acquired jurisdiction over the petition and, therefore,
allowed the presentation of evidence. After the presentation of evidence and submission of the respective memoranda, the trial
court issued its decision on April 23, 1993.
The trial court declared that the will was executed in accordance with the formalities prescribed by law. It, however, ruled
that Asuncion Reyes, based on the testimonies of the witnesses, was never married to the deceased Reyes, and, therefore, their
relationship was an adulterous one. Thus:

The admission in the will by the testator to the illicit relationship between him and ASUNCION REYES EBARLE who is
somebody elses, wife, is further bolstered, strengthened, and confirmed by the direct testimonies of the petitioner himself and
his two attesting witnesses during the trial.

In both cases, the common denominator is the immoral meretrecious, adulterous and adulterous and illicit relationship existing
between the testator and the devisee prior to the death of the testator, which constituted the sole and primary consideration for
the devise or legacy, thus making the will intrinsically invalid.[4]
The will of Reyes was admitted to probate except for paragraph II (a) and (b) of the will which was declared null and void
for being contrary to law and morals. Hence, Julio Vivares filed an appeal before the Court of Appeals with the allegation that the
oppositors failed to present any competent evidence that Asuncion Reyes was legally married to another person during the period
of her cohabitation with Torcuato Reyes.
On November 29, 1995, the Court of Appeals promulgated the assailed decision which affirmed the trial courts decision
admitting the will for probate but the modification that paragraph II including subparagraphs (a) and (b) were declared valid. The
appellee court stated:

Considering that the oppositors never showed any competent, documentary or otherwise during the trial to show that Asuncion
Oning Reyes marriage to the testator was inexistent or void, either because of a pre-existing marriage or adulterous relationship,
the trial court gravely erred in striking down paragraph II (a) and (b) of the subject Last Will and Testament, as void for being
contrary to law and morals. Said declarations are not sufficient to destroy the presumption of marriage. Nor is it enough to
overcome the very declaration of the testator that Asuncion Reyes is his wife.[5]
Dissatisfied with the decision of the Court of Appeals, the oppositors filed this petition for review.
Petitioners contend that the findings and conclusion of the Court of Appeals was contrary to law, public policy and evidence
on record. Torcuato Reyes and Asuncion Oning Reyes were collateral relatives up to the fourth civil degree. Witness Gloria
Borromeo testified that Oning Reyes was her cousin as her mother and the latters father were sister and brother. They were also
nieces of the late Torcuato Reyes. Thus, the purported marriage of the deceased Reyes and Oning Reyes was void ab initio as it
was against public policy pursuant to Article 38 (1) of the Family Code. Petitioners further alleged that Oning Reyes was already
married to Lupo Ebarle at the time she was cohabiting with the testator hence, she could never contact any valid marriage with
the latter. Petitioners argued that the testimonies of the witnesses as well as the personal declaration of the testator, himself, were
sufficient to destroy the presumption of marriage. To further support their contention, petitioners attached a copy of the marriage
certificate of Asuncion Reyes and Lupo Ebarle.[6]
The petition is devoid of merit.
As a general rule, courts in probate proceedings are limited to pass only upon the extrinsic validity of the will sought to be
probated.[7] Thus, the court merely inquires on its due execution, whether or not it complies with the formalities prescribed by
law, and the testamentary capacity of the testator. It does not determine nor even by implication prejudge the validity or efficacy
of the wills provisions.[8] The intrinsic validity is not considered since the consideration thereof usually comes only after the will
has been proved and allowed. There are, however, notable circumstances wherein the intrinsic validity was first determined as
when the defect of the will is apparent on its face and the probate of the will may become a useless ceremony if it is intrinsically
invalid.[9] The intrinsic validity of a will may be passed upon because practical considerations demanded it as when there is
preterition of heirs or the testamentary provisions are doubtful legality. [10] Where the parties agree that the intrinsic validity be
first determined, the probate court may also do so.[11] Parenthetically, the rule on probate is not inflexible and absolute. Under
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.[12]
The case at bar arose from the institution of the petition for the probate of the will of the late Torcuato Reyes. Perforce, the
only issues to be settled in the said proceeding were: (1) whether or not the testator had animus testandi; (2) whether or not vices
of consent attended the execution of the will; and (3) whether or not the formalities of the will had been complied with. Thus, the
lower court was not asked to rule upon the intrinsic validity or efficacy of the provisions of the will. As a result, the declaration
of the testator that Asuncion Oning Reyes was his wife did not have to be scrutinized during the probate proceedings. The propriety
of the institution of Oning Reyes as one of the devisees/legatees already involved inquiry on the wills intrinsic validity and which
need not be inquired upon by the probate court.
The lower court erroneously invoked the ruling in Nepomuceno vs. Court of Appeals (139 SCRA 206) in the instant case. In
the case aforesaid, the testator himself, acknowledged his illicit relationship with the devisee, to wit:

Art. IV. That since 1952, I have been living, as man and wife, with one Sofia J. Nepomuceno, whom I declare and avow to be
entitled to my love an [sic] 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 comfort 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.
Thus, the very tenor of the will invalidates the legacy because the testator admitted he was disposing of the properties to a
person with whom he had been living in concubinage.[13] To remand the case would only be a waste of time and money since the
illegality or defect was already patent. This case is different from the Nepomuceno case. Testator Torcuato Reyes merely stated
in his will that he was bequeathing some of his personal and real properties to his wife, Asuncion Oning Reyes. There was never
an open admission of any illicit relationship. In the case of Nepomuceno, the testator admitted that he was already previously
married and that he had an adulterous relationship with the devisee.
We agree with the Court of Appeals that the trial court relied on uncorroborated testimonial evidence that Asuncion Reyes
was still married to another during the time she cohabited with the testator. The testimonies of the witnesses were merely hearsay
and even uncertain as to the whereabouts or existence of Lupo Ebarle, the supposed husband of Asuncion. Thus:

The foregoing testimony cannot go against the declaration of the testator that Asuncion Oning Reyes is his wife. In Alvarado v.
City Government of Tacloban (supra) the Supreme Court stated that the declaration of the husband is competent evidence to
show the fact of marriage.

Considering that the oppositors never showed any competent evidence, documentary or otherwise during the trial to show that
Asuncion Oning Reyes marriage to the testator was inexistent or void, either because of a pre-existing marriage or adulterous
relationship, the trial court gravely erred in striking down paragraph II (a) and (b) of the subject Last Will and Testament, as
void for being contrary to law and morals. Said declarations are not sufficient to destroy the presumption of marriage. Nor is it
enough to overcome the very declaration of the testator that Asuncion Reyes is his wife.[14]
In the elegant language of Justice Moreland written decades ago, he said-
A will is the testator speaking after death. Its provisions have substantially the same force and effect in the probate court as if
the testator stood before the court in full life making the declarations by word of mouth as they appear in the will. That was the
special purpose of the law in the creation of the instrument known as the last will and testament. Men wished to speak after they
were dead and the law, by the creation of that instrument, permitted them to do so. xxx All doubts must be resolved in favor of
the testators having meant just what he said. (Santos vs. Manarang, 27 Phil. 209).
Petitioners tried to refute this conclusion of the Court of Appeals by presenting belatedly a copy of the marriage certificate
of Asuncion Reyes and Lupo Ebarle. Their failure to present the said certificate before the probate court to support their position
that Asuncion Reyes had an existing marriage with Ebarle constituted a waiver and the same evidence can no longer be entertained
on appeal, much less in this petition for review. This Court would no try the case a new or settle factual issues since its jurisdiction
is confined to resolving questions of law which have been passed upon by the lower courts. The settled rule is that the factual
findings of the appellate court will not be disturbed unless shown to be contrary to the evidence on the record, which petitioners
have not shown in this case.[15]
Considering the foregoing premises, we sustain the findings of the appellate court it appearing that it did not commit a
reversible error in issuing the challenged decision.
ACCORDINGLY, decision appealed from dated November 29, 1995, is hereby AFFIRMED and the instant petition for
review is DENIED for lack of merit.
SO ORDERED.