G.R. No.
L-8327 December 14, 1955
ANTONINA CUEVAS, Plaintiff-Appellant, vs. CRISPULO
CUEVAS, Defendant-Appellee.
Pedro D. Maldia for appellant.
Teodoro P. Santiago for appellee.
REYES, J. B. L., J.:
On September 18, 1950, Antonina Cuevas executed a
notarized conveyance entitled "Donacin Mortis Causa,"
ceding to her nephew Crispulo Cuevas the northern half
of a parcel of unregistered land in barrio Sinasajan,
municipality of Penaranda, Province of Nueva Ecija
(Exhibit A). In the same instrument appears the
acceptance of Crispulo
Cuevas.chanroblesvirtualawlibrary chanrobles virtual law
library
"Subsequently, on May 26, 1952, the donor executed
another notarial instrument entitled "Revocacion de
Donacion Mortis Causa" (Exhibit B) purporting to set aside
the preceding conveyance; and on August 26, 1952, she
brought action in the Court of First Instance to recover the
land conveyed, on the ground (1) that the donation
being mortis causa, it had been lawfully revoked by the
donor; and (2) even it if were a donation inter vivos, the
same was invalidated because (a) it was not properly
accepted; (b) because the donor did not reserve
sufficient property for her own maintenance, and (c)
because the donee was guilty of ingratitute, for having
refused to support the donor.chanroblesvirtualawlibrary
chanrobles virtual law library
Issues having been joined, and trial had, the Court of First
Instance denied the recovery sought, and Antonina
Cuevas thereupon appealed. The Court of Appeals
forwarded the case to this Court because, the case
having been submitted on a stipulation of facts, the
appellant raised only questions of
law.chanroblesvirtualawlibrary chanrobles virtual law
library
The first issue tendered converns the true nature of the
deed "Exhibit A"; whether it embodies a donation inter
vivos, or a disposition of property mortis causa revocable
freely by the transferor at any time before death. 1
chanrobles virtual law library
It has been rules that neither the designation mortis causa,
nor the provision that a donation is "to take effect at the
death of the donor", is a controlling criterion in defining the
true nature of donations (Laureta vs. Mata, 44 Phil., 668;
Concepcion vs. Concepcion, 91 Phil., 823). Hence, the
crux of the controversy revolves around the following
provisions of the deed of donation:
Dapat maalaman ni Crispulo Cuevas na samantalang
ako ay nabubuhay, and lupa na ipinagkakaloob ko sa
kaniya ay ako pa rin and patuloy na mamomosecion,
makapagparatrabaho, makikinabang at ang iba pang
karapatan sa pagmamayari ay sa akin pa rin hanggang
hindo ko binabawian ny buhay ng Maykapal at ito
naman ay hindi ko nga iya-alis pagkat kung ako ay
mamatay na ay inilalaan ko sa kaniya.
There is an apparent conflict in the expression above
quoted, in that the donor reserves to herself "the right of
possession, cultivation, harvesting and other rights and
attributes of ownership while I am not deprived of life by
the Almighty"; but right after, the same donor states that
she "will not takle away" (the property) "because I reserve
it for him (the donee) when I die."chanrobles virtual law
library
The question to be decided is whetehr the donor intended
to part with the title to the property immediately upon the
execution of the deed, or only later, when she had died.
If the first, the donation is operative inter vivos; if the
second, we would be confronted with a disposition mortis
causa, void from the beginning because the formalities of
testaments were not observed (new Civil Code, Arts. 728
and 828; heirs of Bonsato vs. Court of Appeals, 2 50 Off.
Gaz. (8), p. 3568; Tuason vs. Posadas, 54 Phil., 289; Sent.
Trib. Sup. of Spain, 8 July 1943).chanroblesvirtualawlibrary
chanrobles virtual law library
We agree with the Court below that the decisive proof
that the present donation is operative inter vivor lies in the
final phrase to the effect that the donor will not dispose or
take away ("hindi ko nga iya-alis" in the original) the land
"because I am reserving it to him upon my death." By these
words the donor expressly renounced the right to freely
dispose of the property in favor of another (a right
essential to full ownership) and manifested the
irrevocability of the conveyance of the naked title to the
property in favor of the donee. As stated in our decision in
Bonsato vs. Court of Appeals, ante, such irrevocability is
characteristic of donations inter vivos, because it is
incompatible with the idea of a disposition post mortem.
Witness article 828 of the New Civil Code, that provides:
ART. 828. A will may be revoked by the testator at any time
before his death. Any waiver or restriction of this right is
void.
It is apparent from the entire context of the deed of
donation that the donor intended that she should retain
the entire beneficial ownership during her lifetime, but that
the naked title should irrevocably pass to the donee. It is
only thus that all the expressions heretofore discussed can
be given full effect; and when the donor stated that she
would continue to retain the "possession, cultivation,
harvesting and all other rights and attributes of ownership,"
she meant only the dominium utile, not the full ownership.
As the Court below correctly observed, the words "rights
and attributes of ownership" should be construed ejusdem
generis with the preceding rights of "possession, cultivation
and harvesting" expressly enumerated in the deed. Had
the donor meant to retain full or absolute ownership she
had no need to specify possession, cultivation and
harvesting, since all these rights are embodied in full or
absolute ownership; nor would she then have excluded
the right of free disposition from the "rights and attributes
of ownership" that she reserved for
herself.chanroblesvirtualawlibrary chanrobles virtual law
library
Hence, the Court below rightly concluded that the deed
Exhibit A was a valid donation inter vivos, with reservation
of beneficial title during the lifetime of the donor. We may
add that it is highly desirable that all those who are called
to prepare or notarize deeds of donation should call the
attention of the donors to the necessity of clearly property as long as she lived. During that time, she suffered
specifying whether, notwithstanding the donation, they no diminution of income. If that was not enough to support
wish to retain the right to control and dispose at will of the her, the deficiency was not dur to the
property before their death, without need of the consent donation.chanroblesvirtualawlibrary chanrobles virtual
or intervention of the beneficiary, since the express law library
reservation of such right would be conclusive indication
that the liberality is to exist only at the donor's death, and Finally, the donee is not rightfully chargeaboe with
therefore, the formalities of testaments should be ingratitude, because it was expressly stipulated that the
observed; while, a converso, the express waiver of the donee had a total income of only P30 a month, out of
right of free disposition would place the inter vivos which he had to support himself, his wife and his two
character of the donation beyond dispute (Heirs of children. Evidently his means did not allow him to add the
Bonsato vs. Court of Appeals, 50 Off. Gaz. (8), p. donor's support to his own
3568).chanroblesvirtualawlibrary chanrobles virtual law burdens.chanroblesvirtualawlibrary chanrobles virtual law
library library

The argument that there was no sufficient acceptance,
because the deed "merely recites that (1) the donee has
duly read all the contents of this donation; (2) that he 'shall
fully respect all its terms'; and (3) that 'for the act of
benevolence' he is expressing his gratitude" but there is no
show of acceptance (Appellant's brief, p. 7), is without
basis. To respect the terms of the donation, and at the
same time express gratitude for the donor's benevolence,
constitutes sufficient acceptance, If the donee did not
accept, what had he to be grateful about? We are no
longer under the formulary system of the Roman law,
when specific expressions had to be used under paid of
nullity.chanroblesvirtualawlibrary chanrobles virtual law
library
Also unmeritoriious is the contention that the donation is
void because the donor failed to reserve enough for ther
own support. As we have seen, she expressly reserved to
herself all the benefits derivable from the donated
Wherefore, the decision appealed from is affirmed. No
costs in this instance, appellant having obtained leave to
litigate as a pauper. So ordered.
G.R. No. L-20234 December 23, 1964
PAULA DE LA CERNA, ET AL., petitioners,
vs.
MANUELA REBACA POTOT, ET AL., and THE HONORABLE
COURT OF APPEALS, respondents.
Philip M. Alo and Crispin M. Menchavez for petitioners.
Nicolas Jumapao for respondents.
REYES, J.B.L., J.:
Appeal by Paula de la Cerna and others from a decision
of the Court of Appeals, Sixth Division (C.A.-G.R. No. 23763-
R) reversing that of the Court of First Instance of Cebu (Civ.
Case No. R-3819) and ordering the dismissal of an action
for partition.
The factual background appears in the following portion
of the decision of the Court of Appeals (Petition, Annex A,
pp. 2-4):
It appears that on May 9, 1939, the spouses, Bernabe de
la Serna and Gervasia Rebaca, executed a joint last will
and testament in the local dialect whereby they willed
that "our two parcels of land acquired during our marriage
together with all improvements thereon shall be given to
Manuela Rebaca, our niece, whom we have nurtured
since childhood, because God did not give us any child
in our union, Manuela Rebaca being married to Nicolas
Potot", and that "while each of the testators is yet living, he
or she will continue to enjoy the fruits of the two lands
aforementioned", the said two parcels of land being
covered by Tax No. 4676 and Tax No. 6677, both situated
in sitio Bucao, barrio Lugo, municipality of Borbon,
province of Cebu. Bernabe dela Serna died on August 30,
1939, and the aforesaid will was submitted to probate by
said Gervasia and Manuela before the Court of First
Instance of Cebu which, after due publication as required
by law and there being no opposition, heard the
evidence, and, by Order of October 31, 1939; in Special
Proceedings No. 499, "declara legalizado el documento
Exhibit A como el testamento y ultima voluntad del finado
Bernabe de la Serna con derecho por parte du su viuda
superstite Gervasia Rebaca y otra testadora al propio
tiempo segun el Exhibit A de gozar de los frutos de los
terranos descritos en dicho documents; y habido
consideracion de la cuantia de dichos bienes, se decreta
la distribucion sumaria de los mismos en favor de la
logataria universal Manuela Rebaca de Potot previa
prestacion por parte de la misma de una fianza en la sum
de P500.00 para responder de cualesquiera
reclamaciones que se presentare contra los bienes del
finado Bernabe de la Serna de los años desde esta fecha"
(Act Esp. 499, Testamentaria Finado Bernabe de la Serna)
Upon the death of Gervasia Rebaca on October 14, 1952,
another petition for the probate of the same will insofar as
Gervasia was concerned was filed on November 6, 1952,
being Special Proceedings No. 1016-R of the same Court
of First Instance of Cebu, but for failure of the petitioner,
Manuela R. Potot and her attorney, Manuel Potot to
appear, for the hearing of said petition, the case was
dismissed on March 30, 1954 Spec. Proc. No. 1016-R, In the
matter of the Probate of the Will of Gervasia Rebaca).
The Court of First Instance ordered the petition heard and
declared the testament null and void, for being executed
contrary to the prohibition of joint wills in the Civil Code
(Art. 669, Civil Code of 1889 and Art. 818, Civil Code of the
Philippines); but on appeal by the testamentary heir, the
Court of Appeals reversed, on the ground that the decree
of probate in 1939 was issued by a court of probate
jurisdiction and conclusive on the due execution of the
testament. Further, the Court of Appeals declared that:
... . It is true the law (Art. 669, old Civil Code; Art. 818, new
Civil Code). prohibits the making of a will jointly by two or
more persons either for their reciprocal benefit or for the
benefit of a third person. However, this form of will has long
been sanctioned by use, and the same has continued to
be used; and when, as in the present case, one such joint
last will and testament has been admitted to probate by
final order of a Court of competent jurisdiction, there
seems to be no alternative except to give effect to the
provisions thereof that are not contrary to law, as was
done in the case of Macrohon vs. Saavedra, 51 Phil. 267,
wherein our Supreme Court gave effect to the provisions
of the joint will therein mentioned, saying, "assuming that
the joint will in question is valid."
Whence this appeal by the heirs intestate of the
deceased husband, Bernabe de la Cerna.
The appealed decision correctly held that the final
decree of probate, entered in 1939 by the Court of First
Instance of Cebu (when the testator, Bernabe de la
Cerna, died), has conclusive effect as to his last will and
testament despite the fact that even then the Civil Code
already decreed the invalidity of joint wills, whether in
favor of the joint testators, reciprocally, or in favor of a third
party (Art. 669, old Civil Code). The error thus committed
by the probate court was an error of law, that should have
been corrected by appeal, but which did not affect the
jurisdiction of the probate court, nor the conclusive effect
of its final decision, however erroneous. A final judgment
rendered on a petition for the probate of a will is binding
upon the whole world (Manalo vs. Paredes, 47 Phil. 938; In
re Estates of Johnson, 39 Phil. 156); and public policy and
sound practice demand that at the risk of occasional
errors judgment of courts should become final at some
definite date fixed by law. Interest rei publicae ut finis set
litium (Dy Cay vs. Crossfield, 38 Phil, 521, and other cases
cited in 2 Moran, Comments on the Rules of Court (1963
Ed., p. 322).
Petitioners, as heirs and successors of the late Bernabe de
la Cerna, are concluded by the 1939 decree admitting his
will to probate. The contention that being void the will
cannot be validated, overlooks that the ultimate decision
on Whether an act is valid or void rests with the courts, and
here they have spoken with finality when the will was
probated in 1939. On this court, the dismissal of their action
for partition was correct.
But the Court of Appeals should have taken into account
also, to avoid future misunderstanding, that the probate
decree in 1989 could only affect the share of the
deceased husband, Bernabe de la Cerna. It could not
include the disposition of the share of the wife, Gervasia
Rebaca, who was then still alive, and over whose interest
in the conjugal properties the probate court acquired no
jurisdiction, precisely because her estate could not then
be in issue. Be it remembered that prior to the new Civil
Code, a will could not be probated during the testator's
lifetime.
It follows that the validity of the joint will, in so far as the
estate of the wife was concerned, must be, on her death,
reexamined and adjudicated de novo, since a joint will is
considered a separate will of each testator. Thus
regarded, the holding of the court of First Instance of
Cebu that the joint will is one prohibited by law was
correct as to the participation of the deceased Gervasia
Rebaca in the properties in question, for the reasons
extensively discussed in our decision in Bilbao vs. Bilbao, 87
Phil. 144, that explained the previous holding in Macrohon
vs. Saavedra, 51 Phil. 267.
Therefore, the undivided interest of Gervasia Rebaca
should pass upon her death to her heirs intestate, and not
exclusively to the testamentary heir, unless some other
valid will in her favor is shown to exist, or unless she be the
only heir intestate of said Gervasia.
It is unnecessary to emphasize that the fact that joint wills
should be in common usage could not make them valid
when our Civil Codes consistently invalidated them,
because laws are only repealed by other subsequent
laws, and no usage to the contrary may prevail against
their observance (Art. 5, Civ. Code of 1889; Art. 7, Civil
Code of the Philippines of 1950).
WITH THE FOREGOING MODIFICATION, the judgment of
the Court of Appeals in CA-G.R. No. 23763-R is affirmed.
No Costs.
G.R. No. L-48840 December 29, 1943
ERNESTO M. GUEVARA, petitioner-appellant,
vs.
ROSARIO GUEVARA and her husband PEDRO BUISON,
respondent-appellees.
Primacias, Abad, Mencias & Castillo for appellant.
Pedro C. Quinto for appellees.
OZAETA, J.:
Ernesto M. Guevarra and Rosario Guevara, ligitimate son
and natural daughter, respectively, of the deceased
Victorino L. Guevara, are litigating here over their
inheritance from the latter. The action was commenced
on November 12, 1937, by Rosario Guevara to recover
from Ernesto Guevara what she claims to be her strict
ligitime as an acknowledged natural daughter of the
deceased — to wit, a portion of 423,492 square meters of
a large parcel of land described in original certificate of
title No. 51691 of the province of Pangasinan, issued in the
name of Ernesto M. Guervara — and to order the latter to
pay her P6,000 plus P2,000 a year as damages for
withholding such legitime from her. The defendant
answered the complaint contending that whatever right
or rights the plaintiff might have had, had been barred by
the operation of law.
It appears that on August 26, 1931, Victorino L. Guevara
executed a will (exhibit A), apparently with all the
formalities of the law, wherein he made the following
bequests: To his stepdaughter Candida Guevara, a pair of
earrings worth P150 and a gold chain worth P40; to his son
Ernesto M. Guevara, a gold ring worth P180 and all the
furniture, pictures, statues, and other religious objects
found in the residence of the testator in Poblacion Sur,
Bayambang, Pangasinan; "a mi hija Rosario Guevara," a
pair of earrings worth P120; to his stepson Piuo Guevara, a
ring worth P120; and to his wife by second marriage,
Angustia Posadas, various pieces of jewelry worth P1,020.
He also made the following devises: "A mis hijos Rosario
Guevara y Ernesto M. Guevara y a mis hijastros, Vivencio,
Eduviges, Dionisia, Candida y Pio, apellidados Guevara,"
a residential lot with its improvements situate in the town
of Bayambang, Pangasinan, having an area of 960
square meters and assessed at P540; to his wife Angustia
Posadas he confirmed the donation propter nuptias
theretofore made by him to her of a portion of 25 hectares
of the large parcel of land of 259-odd hectares described
in plan Psu-66618. He also devised to her a portion of 5
hectares of the same parcel of land by way of complete
settlement of her usufructurary right.1awphil.net
He set aside 100 hectares of the same parcel of land to
be disposed of either by him during his lifetime or by his
attorney-in-fact Ernesto M. Guevara in order to pay all his
pending debts and to degray his expenses and those of
his family us to the time of his death.
The remainder of said parcel of land his disposed of in the
following manner:
(d). — Toda la porcion restante de mi terreno arriba
descrito, de la extension superficial aproximada de ciento
veintinueve (129) hectareas setenta (70) areas, y
veiticinco (25) centiares, con todas sus mejoras existentes
en la misma, dejo y distribuyo, pro-indiviso, a mis siguientes
herederos como sigue:
A mi hijo legitimo, Ernesto M. Guevara, ciento ocho (108)
hectareas, ocho (8) areas y cincuenta y cuatro (54)
centiareas, hacia la parte que colinda al Oeste de las
cien (100) hectareas referidas en el inciso (a) de este
parrafo del testamento, como su propiedad absoluta y
exclusiva, en la cual extension superficial estan incluidas
cuarenta y tres (43) hectareas, veintitres (23) areas y
cuarenta y dos (42) centiareas que le doy en concepto
de mejora.
A mi hija natural reconocida, Rosario Guevara, veintiun
(21) hectareas, sesenta y un (61) areas y setenta y un (71)
centiareas, que es la parte restante.
Duodecimo. — Nombro por la presente como Albacea
Testamentario a mi hijo Ernesto M. Guevara, con
relevacion de fianza. Y una vez legalizado este
testamento, y en cuanto sea posible, es mi deseo, que los
herederos y legatarios aqui nombrados se repartan
extrajudicialmente mis bienes de conformidad con mis
disposiciones arriba consignadas.
Subsequently, and on July 12, 1933, Victorino L. Guevarra
executed whereby he conveyed to him the southern half
of the large parcel of land of which he had theretofore
disposed by the will above mentioned, inconsideration of
the sum of P1 and other valuable considerations, among
which were the payment of all his debts and obligations
amounting to not less than P16,500, his maintenance up
to his death, and the expenses of his last illness and funeral
expenses. As to the northern half of the same parcel of
land, he declared: "Hago constar tambien que
reconozco a mi referido hijo Ernesto M. guevara como
dueño de la mitad norte de la totalidad y conjunto de los
referidos terrenos por haberlos comprado de su propio
peculio del Sr. Rafael T. Puzon a quien habia vendido con
anterioridad."
On September 27, 1933, final decree of registration was
issued in land registration case No. 15174 of the Court of
First Instance of Pangasinan, and pursuant thereto original
certificate of title No. 51691 of the same province was
issued on October 12 of the same year in favor of Ernesto
M. Guevara over the whole parcel of land described in
the deed of sale above referred to. The registration
proceeding had been commenced on November 1,
1932, by Victorino L. Guevara and Ernesto M. Guevara as
applicants, with Rosario, among others, as oppositor; but
before the trial of the case Victorino L. Guevara withdrew
as applicant and Rosario Guevara and her co-oppositors
also withdrew their opposition, thereby facilitating the
issuance of the title in the name of Ernesto M. Guevara
alone.
On September 27, 1933, Victorino L. Guevarra died. His last
will and testament, however, was never presented to the
court for probate, nor has any administration proceeding
ever been instituted for the settlement of his estate.
Whether the various legatees mentioned in the will have
received their respective legacies or have even been
given due notice of the execution of said will and of the
dispositions therein made in their favor, does not
affirmatively appear from the record of this case. Ever
since the death of Victorino L. Guevara, his only legitimate
son Ernesto M. Guevara appears to have possessed the
land adjudicated to him in the registration proceeding
and to have disposed of various portions thereof for the
purpose of paying the debts left by his father.
In the meantime Rosario Guevara, who appears to have
had her father's last will and testament in her custody, did
nothing judicially to invoke the testamentary dispositions
made therein in her favor, whereby the testator
acknowledged her as his natural daughter and, aside
from certain legacies and bequests, devised to her a
portion of 21.6171 hectares of the large parcel of land
described in the will. But a little over four years after the
testor's demise, she (assisted by her husband)
commenced the present action against Ernesto M.
Guevara alone for the purpose hereinbefore indicated;
and it was only during the trial of this case that she
presented the will to the court, not for the purpose of
having it probated but only to prove that the deceased
Victirino L. Guevara had acknowledged her as his natural
daughter. Upon that proof of acknowledgment she
claimed her share of the inheritance from him, but on the
theory or assumption that he died intestate, because the
will had not been probated, for which reason, she
asserted, the betterment therein made by the testator in
favor of his legitimate son Ernesto M. Guevara should be
disregarded. Both the trial court and the Court of appeals
sustained that theory.
Two principal questions are before us for determination:
(1) the legality of the procedure adopted by the plaintiff
(respondent herein) Rosario Guevara; and (2) the efficacy
of the deed of sale exhibit 2 and the effect of the
certificate of title issued to the defendant (petitioner
herein) Ernesto M. Guevara.
I
We cannot sanction the procedure adopted by the
respondent Rosario Guevara, it being in our opinion in
violation of procedural law and an attempt to circumvent
and disregard the last will and testament of the decedent.
The Code of Civil Procedure, which was in force up to the
time this case was decided by the trial court, contains the
following pertinent provisions:
Sec. 625. Allowance Necessary, and Conclusive as to
Execution. — No will shall pass either the real or personal
estate, unless it is proved and allowed in the Court of First
Instance, or by appeal to the Supreme Court; and the
allowance by the court of a will of real and personal
estate shall be conclusive as to its due execution.

Sec. 626. Custodian of Will to Deliver. — The person who
has the custody of a will shall, within thirty days after he
knows of the death of the testator, deliver the will into the
court which has jurisdiction, or to the executor named in
the will.
Sec. 627. Executor to Present Will and Accept or Refuse
Trust. — A person named as executor in a will, shall within
thirty days after he knows of the death of the testor, or
within thirty days after he knows that he is named
executor, if he obtained such knowledge after knowing of
the death of the testor, present such will to the court which
has jurisdiction, unless the will has been otherwise returned
to said court, and shall, within such period, signify to the
court his acceptance of the trust, or make known in writing
his refusal to accept it.
Sec. 628. Penalty. — A person who neglects any of the
duties required in the two proceeding sections, unless he
gives a satisfactory excuse to the court, shall be subject to
a fine not exceeding one thousand dollars.
Sec. 629. Person Retaining Will may be Committed. — If a
person having custody of a will after the death of the
testator neglects without reasonable cause to deliver the
same to the court having jurisdiction, after notice by the
court so to do, he may be committed to the prison of the
province by a warrant issued by the court, and there kept
in close confinement until he delivers the will.
The foregoing provisions are now embodied in Rule 76 of
the new Rules of Court, which took effect on July 1, 1940.
The proceeding for the probate of a will is one in rem, with
notice by publication to the whole world and with
personal notice to each of the known heirs, legatees, and
devisees of the testator (section 630, C. c. P., and sections
3 and 4, Rule 77). Altho not contested (section 5, Rule 77),
the due execution of the will and the fact that the testator
at the time of its execution was of sound and disposing
mind and not acting under duress, menace, and undue
influence or fraud, must be proved to the satisfaction of
the court, and only then may the will be legalized and
given effect by means of a certificate of its allowance,
signed by the judge and attested by the seal of the court;
and when the will devises real property, attested copies
thereof and of the certificate of allowance must be
recorded in the register of deeds of the province in which
the land lies. (Section 12, Rule 77, and section 624, C. C.
P.)
It will readily be seen from the above provisions of the law
that the presentation of a will to the court for probate is
mandatory and its allowance by the court is essential and
indispensable to its efficacy. To assure and compel the
probate of will, the law punishes a person who neglects his
duty to present it to the court with a fine not exceeding
P2,000, and if he should persist in not presenting it, he may
be committed to prision and kept there until he delivers
the will.
The Court of Appeals took express notice of these
requirements of the law and held that a will, unless
probated, is ineffective. Nevertheless it sanctioned the
procedure adopted by the respondent for the following
reasons:
The majority of the Court is of the opinion that if this case
is dismissed ordering the filing of testate proceedings, it
would cause injustice, incovenience, delay, and much
expense to the parties, and that therefore, it is preferable
to leave them in the very status which they themselves
have chosen, and to decide their controversy once and
for all, since, in a similar case, the Supreme Court applied
that same criterion (Leaño vs. Leaño, supra), which is now
sanctioned by section 1 of Rule 74 of the Rules of Court.
Besides, section 6 of Rule 124 provides that, if the
procedure which the court ought to follow in the exercise
of its jurisdiction is not specifically pointed out by the Rules
of Court, any suitable process or mode of procedure may
be adopted which appears most consistent to the spirit of
the said Rules. Hence, we declare the action instituted by
the plaintiff to be in accordance with law.
Let us look into the validity of these considerations. Section
1 of Rule 74 provides as follows:
Section 1. Extrajudicial settlement by agreement between
heirs. — If the decedent left no debts and the heirs and
legatees are all of age, or the minors are represented by
their judicial guardians, the parties may, without securing
letters of administration, divide the estate among
themselves as they see fit by means of a public instrument
filed in the office of the register of deeds, and should they
disagree, they may do so in an ordinary action of partition.
If there is only one heir or one legatee, he may adjudicate
to himself the entire estate by means of an affidavit filed
in the office of the register of deeds. It shall be presumed
that the decedent left no debts if no creditor files a
petition for letters of administration within two years after
the death of the decedent.
That is a modification of section 596 of the Code of Civil
Procedure, which reads as follows:
Sec. 596. Settlement of Certain Intestates Without Legal
Proceedings. — Whenever all the heirs of a person who
died intestate are of lawful age and legal capacity and
there are no debts due from the estate, or all the debts
have been paid the heirs may, by agreement duly
executed in writing by all of them, and not otherwise,
apportion and divide the estate among themselves, as
they may see fit, without proceedings in court.
The implication is that by the omission of the word
"intestate" and the use of the word "legatees" in section 1
of Rule 74, a summary extrajudicial settlement of a
deceased person's estate, whether he died testate or
intestate, may be made under the conditions specified.
Even if we give retroactive effect to section 1 of Rule 74
and apply it here, as the Court of Appeals did, we do not
believe it sanctions the nonpresentation of a will for
probate and much less the nullification of such will thru the
failure of its custodian to present it to the court for probate;
for such a result is precisely what Rule 76 sedulously
provides against. Section 1 of Rule 74 merely authorizes
the extrajudicial or judicial partition of the estate of a
decedent "without securing letter of administration." It
does not say that in case the decedent left a will the heirs
and legatees may divide the estate among themselves
without the necessity of presenting the will to the court for
probate. The petition to probate a will and the petition to
issue letters of administration are two different things, altho
both may be made in the same case. the allowance of a
will precedes the issuance of letters testamentary or of
administration (section 4, Rule 78). One can have a will
probated without necessarily securing letters
testamentary or of administration. We hold that under
section 1 of Rule 74, in relation to Rule 76, if the decedent
left a will and no debts and the heirs and legatees desire
to make an extrajudicial partition of the estate, they must
first present that will to the court for probate and divide
the estate in accordance with the will. They may not
disregard the provisions of the will unless those provisions
are contrary to law. Neither may they so away with the
presentation of the will to the court for probate, because
such suppression of the will is contrary to law and public
policy. The law enjoins the probate of the will and public
policy requires it, because unless the will is probated and
notice thereof given to the whole world, the right of a
person to dispose of his property by will may be rendered
nugatory, as is attempted to be done in the instant case.
Absent legatees and devisees, or such of them as may
have no knowledge of the will, could be cheated of their
inheritance thru the collusion of some of the heirs who
might agree to the partition of the estate among
themselves to the exclusion of others.
In the instant case there is no showing that the various
legatees other than the present litigants had received
their respective legacies or that they had knowledge of
the existence and of the provisions of the will. Their right
under the will cannot be disregarded, nor may those rights
be obliterated on account of the failure or refusal of the
custodian of the will to present it to the court for probate.
Even if the decedent left no debts and nobdy raises any
question as to the authenticity and due execution of the
will, none of the heirs may sue for the partition of the estate
in accordance with that will without first securing its
allowance or probate by the court, first, because the law
expressly provides that "no will shall pass either real or
personal estate unless it is proved and allowed in the
proper court"; and, second, because the probate of a will,
which is a proceeding in rem, cannot be dispensed with
the substituted by any other proceeding, judicial or
extrajudicial, without offending against public policy
designed to effectuate the testator's right to dispose of his
property by will in accordance with law and to protect the
rights of the heirs and legatees under the will thru the
means provided by law, among which are the publication
and the personal notices to each and all of said heirs and
legatees. Nor may the court approve and allow the will
presented in evidence in such an action for partition,
which is one in personam, any more than it could decree
the registration under the Torrens system of the land
involved in an ordinary action for reinvindicacion or
partition.
We therefore believe and so hold that section 1 of Rule 74,
relied upon by the Court of Appeals, does not sanction
the procedure adopted by the respondent.
The case of Leaño vs. Leaño (25 Phil., 180), cited by the
Court of Appeals, like section 1 of Rule 74, sanctions the
extrajudicial partition by the heirs of the properties left by
a decedent, but not the nonpresentation of a will for
probate. In that case one Paulina Ver executed a will on
October 11, 1902, and died on November 1, 1902. Her will
was presented for probate on November 10, 1902, and
was approved and allowed by the Court on August 16,
1904. In the meantime, and on November 10, 1902, the
heirs went ahead and divided the properties among
themselves and some of them subsequently sold and
disposed of their shares to third persons. It does not
affirmatively appear in the decision in that case that the
partition made by the heirs was not in accordance with
the will or that they in any way disregarded the will. In
closing the case by its order dated September 1, 1911, the
trial court validated the partition, and one of the heirs,
Cunegunda Leaño, appealed. In deciding the appeal
this Court said:
The principal assignment of error is that the lower court
committed an error in deciding that the heirs and
legatees of the estate of Dña. Paulina Ver had voluntarily
divided the estate among themselves.
In resolving that question this Court said:
In view of the positive finding of the judge of the lower
court that there had been a voluntary partition of the
estate among the heirs and legatees, and in the absence
of positive proof to the contrary, we must conclude that
the lower court had some evidence to support its
conclusion.
Thus it will be seen that as a matter of fact no question of
law was raised and decided in that case. That decision
cannot be relied upon as an authority for the
unprecedented and unheard of procedure adopted by
the respondent whereby she seeks to prove her status as
an acknowledged natural child of the decedent by his will
and attempts to nullify and circumvent the testamentary
dispositions made by him by not presenting the will to the
court for probate and by claiming her legitime as an
acknowledged natural child on the basis of intestacy; and
that in the face of express mandatory provisions of the law
requiring her to present the will to the court for probate.
In the subsequent case of Riosa vs. Rocha (1926), 48 Phil.
737, this Court departed from the procedure sanctioned
by the trial court and impliedly approved by this Court in
the Leaño case, by holding that an extrajudicial partition
is not proper in testate succession. In the Riosa case the
Court, speaking thru Chief Justice Avanceña, held:
1. EXTRAJUDICIAL PARTITION; NOT PROPER IN TESTATE
SUCCESSION. — Section 596 of the Code of Civil
Procedure, authorizing the heirs of a person who dies
intestate to make extrajudicial partition of the property of
the deceased, without going into any court of justice,
makes express reference to intestate succession, and
therefore excludes testate succession.
2. ID.; EFFECTS OF; TESTATE SUCCESSION. — In the instant
case, which is a testate succession, the heirs made an
extrajudicial partition of the estate and at the same time
instituted proceeding for the probate of the will and the
administration of the estate. When the time came for
making the partition, they submitted to the court the
extrajudicial partition previously made by them, which the
court approved. Held: That for the purposes of the
reservation and the rights and obligations created
thereby, in connection with the relatives benefited, the
property must not be deemed transmitted to the heirs
from the time the extrajudicial partition was made, but
from the time said partition was approved by the court.
(Syllabus.)
The Court of Appeals also cites section 6 of Rule 124, which
provides that if the procedure which the court ought to
follow in the exercise of its jurisdiction is not specifically
pointed out by the Rules of Court, any suitable process for
mode of proceeding may be adopted which appears
most conformable to the spirit of the said Rules. That
provision is not applicable here for the simple reason that
the procedure which the court ought to follow in the
exercise of its jurisdiction is specifically pointed out and
prescribed in detail by Rules 74, 76, and 77 of the Rules of
Court.
The Court of Appeals also said "that if this case is dismissed,
ordering the filing of testate proceedings, it would cause
injustice, inconvenience, delay, and much expense to the
parties." We see no injustice in requiring the plaintiff not to
violate but to comply with the law. On the contrary, an
injustice might be committed against the other heirs and
legatees mentioned in the will if the attempt of the plaintiff
to nullify said will by not presenting it to the court for
probate should be sanctioned. As to the inconvenience,
delay, and expense, the plaintiff herself is to blame
because she was the custodian of the will and she
violated the duty imposed upon her by sections 2, 4, and
5 of Rule 76, which command her to deliver said will to the
court on pain of a fine not exceeding P2,000 and of
imprisonment for contempt of court. As for the defendant,
he is not complaining of inconvenience, delay, and
expense, but on the contrary he is insisting that the
procedure prescribed by law be followed by the plaintiff.
Our conclusion is that the Court of Appeals erred in
declaring the action instituted by the plaintiff to be in
accordance with law. It also erred in awarding relief to the
plaintiff in this action on the basis of intestacy of the
decedent notwithstanding the proven existence of a will
left by him and solely because said will has not been
probated due to the failure of the plaintiff as custodian
thereof to comply with the duty imposed upon her by the
law.
It is apparent that the defendant Ernesto M. Guevara,
who was named executor in said will, did not take any
step to have it presented to the court for probate and did
not signify his acceptance of the trust or refusal to accept
it as required by section 3 of Rule 76 (formerly section 627
of the Code of Civil Procedure), because his contention is
that said will, insofar as the large parcel of land in litigation
is concerned, has been superseded by the deed of sale
exhibit 2 and by the subsequent issuance of the Torrens
certificate of title in his favor.
II
This brings us to the consideration of the second question,
referring to the efficacy of the deed of sale exhibit 2 and
the effect of the certificate of titled issued to the
defendant Ernesto M. Guevara. So that the parties may
not have litigated here in vain insofar as that question is
concerned, we deem it proper to decide it now and
obviate the necessity of a new action.
The deed of sale exhibit 2 executed by and between
Victorino L. Guevara and Ernesto M. Guevara before a
notary public on July 12, 1933, may be divided into two
parts: (a) insofar as it disposes of and conveys to Ernesto
M. Guevara the southern half of Victorino L. Guevara's
hacienda of 259-odd hectares in consideration of P1 and
other valuable considerations therein mentioned; and (b)
insofar as it declares that Ernesto M. Guevara became the
owner of the northern half of the same hacienda by
repurchasing it with his own money from Rafael T. Puzon.
A. As to the conveyance of the southern half of the
hacienda to Ernesto M. Guevara in consideration of the
latter's assumption of the obligation to pay all the debts of
the deceased, the Court of Appeals found it to be valid
and efficacious because: "(a) it has not been proven that
the charges imposed as a condition is [are] less than the
value of the property; and (b) neither has it been proven
that the defendant did not comply with the conditions
imposed upon him in the deed of transfer." As a matter of
fact the Court of Appeals found" "It appears that the
defendant has been paying the debts left by his father. To
accomplish this, he had to alienate considerable portions
of the above-mentioned land. And we cannot brand
such alienation as anomalous unless it is proven that they
have exceeded the value of what he has acquired by
virtue of the deed of July 12, 1933, and that of his
corresponding share in the inheritance." The finding of the
Court of Appeals on this aspect of the case is final and
conclusive upon the respondent, who did not appeal
therefrom.
B. With regard to the northern half of the hacienda, the
findings of fact and of law made by the Court of Appeals
are as follows:
The defendant has tried to prove that with his own money,
he bought from Rafael Puzon one-half of the land in
question, but the Court a quo, after considering the
evidence, found it not proven; we hold that such
conclusion is well founded. The acknowledgment by the
deceased, Victorino L. Guevara, of the said transactions,
which was inserted incidentally in the document of July 12,
1933, is clearly belied by the fact that the money paid to
Rafael Puzon came from Silvestre P. Coquia, to whom
Victorino L. Guevara had sold a parcel of land with the
right of repurchase. The defendant, acting for his father,
received the money and delivered it to Rafael Puzon to
redeem the land in question, and instead of executing a
deed of redemption in favor of Victorino L. Guevara, the
latter executed a deed of sale in favor of the defendant.
The plaintiff avers that she withdrew her opposition to the
registration of the land in the name of the defendant,
because of the latter's promise that after paying all the
debt of their father, he would deliver to her and to the
widow their corresponding shares. As their father then was
still alive, there was no reason to require the delivery of her
share and that was why she did not insist on her
opposition, trusting on the reliability and sincerity of her
brother's promise. The evidence shows that such promise
was really made. The registration of land under the Torrens
system does not have the effect of altering the laws of
succession, or the rights of partition between
coparceners, joint tenants, and other cotenants nor does
it change or affect in any other way any other rights and
liabilities created by law and applicable to unregistered
land (sec. 70, Land Registration Law). The plaintiff is not,
then, in estoppel, nor can the doctrine of res judicata be
invoked against her claim. Under these circumstances,
she has the right to compel the defendant to deliver her
corresponding share in the estate left by the deceased,
Victorino L. Guevara.
In his tenth to fourteenth assignments of error the petitioner
assails the foregoing findings of the Court of Appeals. But
the findings of fact made by said court are final and not
reviewable by us on certiorari. The Court of Appeals found
that the money with which the petitioner repurchased the
northern half of the land in question from Rafael Puzon was
not his own but his father's, it being the proceeds of the
sale of a parcel of land made by the latter to Silvestre P.
Coquia. Said court also found that the respondent
withdrew her opposition to the registration of the land in
the name of the petitioner upon the latter's promise that
after paying all the debts of their father he would deliver
to her and to the widow their corresponding shares. From
these facts, it results that the interested parties consented
to the registration of the land in question in the name of
Ernesto M. Guevara alone subject to the implied trust on
account of which he is under obligation to deliver and
convey to them their corresponding shares after all the
debts of the original owner of said land had been paid.
Such finding does not constitute a reversal of the decision
and decree of registration, which merely confirmed the
petitioner's title; and in the absence of any intervening
innocent third party, the petitioner may be compelled to
fulfill the promise by virtue of which he acquired his title.
That is authorized by section 70 of the Land Registration
Act, cited by the Court of Appeals, and by the decision of
this Court in Severino vs. Severino, 44 Phil., 343, and the
cases therein cited.
Upon this phase of the litigation, we affirm the finding of
the Court of Appeals that the northern half of the land
described in the will exhibit A and in original certificate of
title No. 51691 still belongs to the estate of the deceased
Victorino L. Guevara. In the event the petitioner Ernesto M.
Guevara has alienated any portion thereof, he is under
obligation to compensate the estate with an equivalent
portion from the southern half of said land that has not yet
been sold. In other words, to the estate of Victorino L.
Guevara still belongs one half of the total area of the land
described in said original certificate of title, to be taken
from such portions as have not yet been sold by the
petitioner, the other half having been lawfully acquired by
the latter in consideration of his assuming the obligation to
pay all the debts of the deceased.
Wherefore, that part of the decision of the Court of
Appeals which declares in effect that notwithstanding
exhibit 2 and the issuance of original certificate of title No.
51691 in the name of Ernesto M. Guevara, one half of the
land described in said certificate of title belongs to the
estate of Victorino L. Guevara and the other half to
Ernesto M. Guevara in consideration of the latter's
assumption of the obligation to pay all the debts of the
deceased, is hereby affirmed; but the judgment of said
court insofar as it awards any relief to the respondent
Rosario Guevara in this action is hereby reversed and set
aside, and the parties herein are hereby ordered to
present the document exhibit A to the proper court for
probate in accordance with law, without prejudice to
such action as the provincial fiscal of Pangasinan may
take against the responsible party or parties under section
4 of Rule 76. After the said document is approved and
allowed by the court as the last will and testament of the
deceased Victorino L. Guevara, the heirs and legatees
therein named may take such action, judicial or
extrajudicial, as may be necessary to partition the estate
of the testator, taking into consideration the
pronouncements made in part II of this opinion. No finding
as to costs in any of the three instances.
GALLANOSA VS ARCANGEL
In this special civil action of certiorari, filed on July 29, 1968,
the petitioners seek to annul the orders of respondent
Judge dated May 3 trial June 17, 1968, wherein he
reconsidered his order of January 10, 1968, dismissing, on
the ground of prescription, the complaint in Civil Case No.
2233 of the Court of First Instance of Sorsogon.
The case involves the sixty-one parcels of land in Sorsogon
left by Florentino Hitosis, with an estimated value of
P50,000, trial claims for damages exceeding one million
pesos. The undisputed facts are as follows:
1. Florentino Hitosis executed a will in the Bicol dialect on
June 19, 1938 when he was eighty years old. He died on
May 26, 1939 at Irosin, Sorsogon. A childless widower, he
as survived by his brother, Leon Hitosis. His other brothers,
named Juan, Tito (Juancito), Leoncio (Aloncio) trial
Apolonio and only sister, Teodora, were all dead.
2. On June 24, 1939 a petition for the probate of his will was
filed in the Court of First Instance of Sorsogon (Special
Proceeding No. 3171). The notice of hearing was duly
published. In that will, Florentino bequeathed his one-half
share in the conjugal estate to his second wife, Tecla
Dollentas, and, should Tecla predecease him, as was the
case, his one-half share would be assigned to the spouses
Pedro Gallanosa and Corazon Grecia, the reason being
that Pedro, Tecla's son by her first marriage, grew up under
the care of Florentino; he had treated Pedro as his foster
child, and Pedro has rendered services to Florentino and
Tecla. Florentino likewise bequeathed his separate
properties consisting of three parcels of abaca land and
parcel of riceland to his protege (sasacuyang ataman),
Adolfo Fortajada, a minor.
3. Opposition to the probate of the will was registered by
the testator's legal heirs, namely, his surviving brother,
Leon, trial his nephews trial nieces. After a hearing,
wherein the oppositors did not present any evidence in
support of their opposition, Judge Pablo S. Rivera, in his
decision of October 27, 1939, admitted the will to probate
and appointed Gallanosa as executor. Judge Rivera
specifically found that the testator executed his last will
"gozando de buena salud y facultades mentales y no
obrando en virtud de amenaza, fraude o influencia
indebida."
4. On October 24, 1941, the testamentary heirs, the
Gallanosa spouses trial Adolfo Fortajada, submitted a
project of partition covering sixty-one parcels of land
located in various parts of Sorsogon, large cattle trial
several pieces of personal property which were distributed
in accordance with Florentino's will. The heirs assumed the
obligations of the estate amounting to P7,129.27 in the
portion of P2,376.42 for Adolfo Fortajada and P4,752.85 for
the Gallanosa spouses. The project of partition was
approved by Judge Doroteo Amador in his order of March
13, 1943, thus confirming the heirs' possession of their
respective shares. The testator's legal heirs did not appeal
from the decree of probate trial from the order of partition
trial distribution.
5. On February 20, 1952, Leon Hitosis trial the heirs of
Florentino's deceased brothers trial sisters instituted an
action in the Court of First Instance of Sorsogon against
Pedro Gallanosa for the recovery of the said sixty-one
parcels of land. They alleged that they, by themselves or
through their predecessors-in-interest, had been in
continuous possession of those lands en concepto de
dueño trial that Gallanosa entered those lands in 1951 trial
asserted ownership over the lands. They prayed that they
be declared the owners of the lands trial that they be
restored to the possession thereof. They also claimed
damages (Civil Case No. 696).
6. Gallanosa moved to dismiss the above complaint for
lack of cause of action trial on the ground of bar by the
prior judgment in the probate proceeding. Judge
Anatolio C. Mañalac dismiss the complaint on the ground
of res judicata in his order of August 14, 1952 wherein he
said:
It also appears that the plaintiffs and/or their
predecessors-in-interest had intervened in the testate
proceedings in Civil Case No. 3171 of this Court for- the
purpose of contesting the probate of the will of (the) late
Florentino Hitosis; trial had their opposition prospered trial
the will denied of probate, the proceedings would have
been converted into one of intestacy (Art. 960 Civil Code)
and the settlement of the estate of the said deceased
would have been made in accordance with the
provisions of law governing legal or intestate succession ...
, in which case the said plaintiffs, as the nearest of kin or
legal heirs of said Florentino Mitosis, would have
succeeded to the ownership and possession of the 61
parcels of land in question forming part of his estate (art.
1003, Civil Code).
However, the derision of the Court was adverse to them,
when it their opposition trial ordered the probate of his will.
From this decision (Annex K) legalizing the said will, the
oppositors did not file any appeal within the period fixed
by law, despite the fact that they were duly notified
thereof, so that the said decision had become final trial it
now constitutes a bar to any action that the plaintiffs may
institute for the purpose of a redetermination of their rights
to inherit the properties of the late Florentino Hitosis.
In other words, the said decision of this Court in Civil Case
special ) No. 3171, in which the herein plaintiffs or their
predecessors-in-interest had intervened as parties
oppositors, constitutes a final judicial determination of the
issue that the said plaintiffs, as ordinary heirs, have no legal
rights to succeed to any of the properties of the late
Florentino Hitosis; consequently, their present claim to the
ownership trial possession of the 61 parcels of land in
question is without any legal merit or basis.
7. The plaintiffs did not appeal from that order of dismissal
which should have set the matter at rest. But the same
plaintiffs or oppositors to the probate of the will, trial their
heirs, with a persistence befitting a more meritorious case,
filed on September 21, 1967, or fifteen years after the
dismissal of Civil Case No. 696 trial twenty-eight years after
the probate of the will another action in the same court
against the Gallanosa spouses trial Adolfo Fortajada for
the "annulment" of the will of Florentino Hitosis trial and for
the recovery of the same sixty-one parcels of land. They
prayed for the appointment of a receiver.

8. As basis of their complaint, they alleged that the
Gallanosa spouses, through fraud trial deceit, caused the
execution trial simulation of the document purporting to
be the last will trial testament of Florentino Hitosis. While in
their 1952 complaint the game plaintiffs alleged that they
were in possession of the lands in question, in their 1967
complaint they admitted that since 1939, or from the
death of Florentino Hitosis, the defendants (now the
petitioners) have been in possession of the disputed lands
(Par. XIV of the complaint, p. 70, Rollo in Civil Case No. 555,
Gubat Branch, which was transferred to Branch I in
Sorsogon town where Special Proceeding No. 3171 trial
Civil Case No. 696 were decided trial which was re-
docketed as Civil Case No. 2233).
9. As already stated, that 1967 complaint, upon motion of
the defendants, now the petitioners, was dismissed by
respondent Judge. The plaintiffs filed a motion for
reconsideration Respondent Judge. granted it trial set
aside the order of dismissal. He denied defendants' motion
for the reconsideration of his order setting aside that
dismissal order.
The petitioners or the defendants below contend in this
certiorari case that the lower court has no jurisdiction to
set aside the 1939 decree of probate trial the 1952 order
of dismissal in Civil Case No. 696 trial that it acted with
grave abuse of discretion in not dismissing private
respondents' 1967 complaint.
The issue is whether, under the facts set forth above, the
private respondents have a cause of action the
"annulment" of the will of Florentino Hitosis trial for the
recovery of the sixty-one parcels of land adjudicated
under that will to the petitioners.
We hold that the lower court committed a grave abuse of
discretion in reconsideration its order of dismissal trial in
ignoring the 1939 testamentary case trial the 1952 Civil
Case No. 696 which is the same as the instant 1967 case.
A rudimentary knowledge of substantive law trial
procedure is sufficient for an ordinary lawyer to conclude
upon a causal perusal of the 1967 complaint that it is
baseless trial unwarranted.
What the plaintiffs seek is the "annulment" of a last will trial
testament duly probated in 1939 by the lower court itself.
The proceeding is coupled with an action to recover the
lands adjudicated to the defendants by the same court in
1943 by virtue of the probated will, which action is a
resuscitation of The complaint of the same parties that the
same court dismissed in 1952.
It is evident from the allegations of the complaint trial from
defendants' motion to dismiss that plaintiffs' 1967 action is
barred by res judicata, a double-barrelled defense, trial
by prescription, acquisitive trial extinctive, or by what are
known in the jus civile trial the jus gentium as usucapio,
longi temporis possesio and praescriptio (See Ramos vs.
Ramos, L-19872, December 3, 1974, 61 SCRA 284).
Our procedural law does not sanction an action for the
"annulment" of a will. In order that a will may take effect,
it has to be probated, legalized or allowed in the proper
testamentary proceeding. The probate of the will is
mandatory (Art. 838, Civil Code; sec. 1, Rule 75, formerly
sec. 1, Rule 76, Rules of Court; Guevara vs. Guevara, 74
Phil. 479; Guevara vs. Guevara, 98 Phil. 249).
The testamentary proceeding is a special proceeding for
the settlement of the testator's estate. A special
proceeding is distinct trial different from an ordinary action
(Secs. 1 trial 2, Rule 2 trial sec. 1, Rule 72, Rules of Court).
We say that the defense of res judicata, as a ground for
the dismissal of plaintiffs' 1967 complaint, is a two-pronged
defense because (1) the 1939 trial 1943 decrees of
probate trial distribution in Special Proceeding No. 3171
trial (2) the 1952 order of dismissal in Civil Case No. 696 of
the lower court constitute bars by former judgment, Rule
39 of the Rules of Court provides:
SEC. 49. Effect of judgments. — The effect of a judgment
or final order rendered by a court or judge of the
Philippines, having jurisdiction to pronounce the judgment
or order, may be as follows:
(a) In case of a judgment or order against a specific thing,
or in respect to the probate of a will or the administration
of the estate of a deceased person, or in respect to the
personal, political, or legal condition or status of a
particular person or his relationship to another, the
judgment or order is conclusive upon the title to the thing
the will or administration, or the condition, status or
relationship of the person; however, the probate of a will
or granting of letters of administration shall only be prima
facie evidence of the death of the testator or intestate;
(b) In other cases the judgment or order is, with respect to
the matter directly adjudged or as to any other matter
that could have been raised in relation thereto,
conclusive between the parties trial their successors in
interest by title subsequent to the commencement of the
action or special proceeding, litigating of the same thing
trial under the same title trial in the same capacity;
(c) In any other litigation between the same parties or their
successors in interest, that only is deemed to have been
adjudged in a former judgment which appears upon its
face to have been so adjudged, or which was actually
trial necessarily included therein or necessary thereto.
The 1939 decree of probate is conclusive as to the due
execution or formal validity of the will (Sec. 625, Act 190,
sec. 1, Rule 76, now sec. 1, Rule 75, Rules of Court; Last par.
of art. 838, Civil Code).
That means that the testator was of sound trial disposing
mind at the time when he executed the will and was not
acting under duress, menace, fraud, or undue influence;
that the will was signed by him in the presence of the
required number of witnesses, and that the will is genuine
trial is not a forgery. Accordingly, these facts cannot again
be questioned in a subsequent proceeding, not even in a
criminal action for the forgery of the will. (3 Moran's
Comments on the Rules of Court, 1970 Edition, p. 395;
Manahan vs. Manahan, 58 Phil. 448).
After the finality of the allowance of a will, the issue as to
the voluntariness of its execution cannot be raised
anymore (Santos vs. De Buenaventura, L-22797,
September 22, 1966, 18 SCRA 47).
In Austria vs. Ventenilla, 21 Phil. 180, a "petition for
annulment of a will" was not entertained after the decree
of probate had become final. That case is summarized as
follows:
Wills; Probate; Alledged Fraudulent Will; Appeal.— V. died.
His will was admitted to probate without objection. No
appeal was taken from said order. It was admitted that
due trial legal notice had been given to all parties. Fifteen
months after the date of said order, a motion was
presented in the lower court to have said will declared null
and void, for the reason that fraud had been practised
upon the deceased in the making of his will.
Held: That under section 625 of Act No. 190, the only time
given parties who are displeased with the order admitting
to probate a will, for an appeal is the time given for
appeals in ordinary actions; but without deciding whether
or not an order admitting a will to probate will be opened
for fraud, after the time allowed for an appeal has
expired, when no appeal is taken from an order probating
a will, the heirs can not, in subsequent litigation in the
same proceedings, raise questions relating to its due
execution. The probate of a will is conclusive as to its due
execution trial as to the testamentary capacity of The
testator. (See Austria vs. Heirs of Ventenilla. 99 Phil. 1069).
On the other hand, the 1943 decree of adjudication
rendered by the trial court in the testate proceeding for
the settlement of the estate of Florentino Hitosis, having
been rendered in a proceeding in rem, is under the
abovequoted section 49(a), binding upon the whole
world (Manalo vs. Paredes, 47 Phil. 938; In re Estate of
Johnson, 39 Phil. 156; De la Cerna vs. Potot, 120 Phil. 1361,
1364; McMaster vs. Hentry Reissmann & Co., 68 Phil. 142).
It is not only the 1939 probate proceeding that can be
interposed as res judicata with respect to private
respondents' complaint, The 1952 order of dismissal
rendered by Judge Mañalac in Civil Case No. 696, a
judgment in personam was an adjudication on the merits
(Sec. 4, Rule 30, old Rules of Court). It constitutes a bar by
former judgment under the aforequoted section 49(b)
(Anticamara vs. Ong, L-29689. April 14, 1978).
The plaintiffs or private respondents did not even bother
to ask for the annulment of the testamentary proceeding
trial the proceeding in Civil Case No. 696. Obviously, they
realized that the final adjudications in those cases have
the binding force of res judicata and that there is no
ground, nor is it timely, to ask for the nullification of the final
orders trial judgments in those two cases.
It is a fundamental concept in the organization of every
jural system, a principle of public policy, that, at the risk of
occasional errors, judgments of courts should become
final at some definite date fixed by law. Interest rei
publicae ut finis sit litum. "The very object for which the
courts were constituted was to put an end to
controversies." (Dy Cay vs. Crossfield and O'Brien, 38 Phil.
521: Peñalosa vs. Tuason, 22 Phil, 303; De la Cerna vs.
Potot, supra).
After the period for seeking relief from a final order or
judgment under Rule 38 of the Rules of Court has expired,
a final judgment or order can be set aside only on the
grounds of (a) lack of jurisdiction or lack of due process of
law or (b) that the judgment was obtained by means of
extrinsic or collateral fraud. In the latter case, the period
for annulling the judgment is four years from the discovery
of the fraud (2 Moran's Comments on the Rules of Court,
1970 Edition, pp. 245-246; Mauricio vs. Villanueva, 106 Phil.
1159).
To hurdle over the obstacle of prescription, the trial court,
naively adopting the theory of plaintiffs' counsel, held that
the action for the recovery of the lands had not
prescribed because the rule in article 1410 of the Civil
Code, that "the action or defense for the declaration of
the inexistence of a contract does not prescribe", applies
to wills.
That ruling is a glaring error. Article 1410 cannot possibly
apply to last wills trial testaments. The trial court trial
plaintiffs' counsel relied upon the case of Dingle vs.
Guillermo, 48 0. G. 4410, allegedly decided by this Court,
which cited the ruling in Tipton vs. Velasco, 6 Phil. 67, that
mere lapse of time cannot give efficacy to void contracts,
a ruling elevated to the category of a codal provision in
article 1410. The Dingle case was decided by the Court of
Appeals. Even the trial court did not take pains to verify
the misrepresentation of plaintiffs' counsel that the Dingle
case was decided by this Court. An elementary
knowledge of civil law could have alerted the trial court
to the egregious error of plaintiffs' counsel in arguing that
article 1410 applies to wills.
WHEREFORE, the lower court's orders of May 3 trial June 17,
1968 are reversed trial set aside trial its order of dismissal
dated January 10, 1968 is affirmed. Costs against the
private respondents. SO ORDERED.
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 SO ORDERED.
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.