Set 7

Succession Cases Set 7 Codoy v Calugay Gago v Mamuyac Molo v Molo Guevara v Guevara De la Cerna v Potot Gallanosa v Arcangel
Dorotheo v CA G.R. No. 123486 August 12, 1999 EUGENIA RAMONAL CODOY, and MANUEL RAMONAL, petitioners, vs.EVANGELINE R. CALUGAY, JOSEPHINE SALCEDO, and UEFEMIA PATIGAS, respondents. PARDO, J.:
Before us is a petition for review on certiorari of the decision of the Court of Appeals1 and its resolution denying reconsideration, ruling: Upon the unrebutted testimony of appellant Evangeline Calugay and witness Matilde Ramonal Binanay, the authenticity of testators holographic will has been established and the handwriting and signature therein (exhibit S) are hers, enough to probate said will. Reversal of the judgment appealed from and the probate of the holographic will in question be called for. The rule is that after plaintiff has completed presentation of his evidence and the defendant files a motion for judgment on demurrer to evidence on the ground that upon the facts and the law plaintiff has shown no right to relief, if the motion is granted and the order to dismissal is reversed on appeal, the movant loses his right to present evidence in his behalf (Sec, 1 Rule 35 Revised Rules of Court). Judgment may, therefore, be rendered for appellant in the instant case. Wherefore, the order appealed from is REVERSED and judgment rendered allowing the probate of the holographic will of the testator Matilde Seo Vda. de Ramonal.2 The facts are as follows: On April 6, 1990, Evangeline Calugay, Josephine Salcedo and Eufemia Patigas, devisees and legatees of the holographic will of the deceased Matilde Seo Vda. de Ramonal, filed with the Regional Trial Court, Misamis Oriental, Branch 18, a petition3 for probate of the holographic will of the deceased, who died on January 16, 1990. In the petition, respondents claimed that the deceased Matilde Seo Vda. de Ramonal, was of sound and disposing mind when she executed the will on August 30, 1978, that there was no fraud, undue influence, and duress employed in the person of the testator, and will was written voluntarily. The assessed value of the decedent's property, including all real and personal property was about P400,000.00, at the time of her death.4 On June 28, 1990, Eugenia Ramonal Codoy and Manuel Ramonal filed an opposition5 to the petition for probate, alleging that the holographic will was a forgery and that the same is even illegible. This gives an impression that a "third hand" of an interested party other than the "true hand" of Matilde Seo Vda. de Ramonal executed the holographic will. Petitioners argued that the repeated dates incorporated or appearing on will after every disposition is out of the ordinary. If the deceased was the one who executed the will, and was not forced, the dates and the signature should appear at the bottom after the dispositions, as
Succession Cases Set 7
regularly done and not after every disposition. And assuming that the holographic will is in the handwriting of the deceased, it was procured by undue and improper pressure and influence on the part of the beneficiaries, or through fraud and trickery.1wphi1.nt Respondents presented six (6) witnesses and various documentary evidence. Petitioners instead of presenting their evidence, filed a demurrer6 to evidence, claiming that respondents failed to establish sufficient factual and legal basis for the probate of the holographic will of the deceased Matilde Seo Vda. de Ramonal. On November 26, 1990, the lower Court issued an order, the dispositive portion of which reads: WHEREFORE, in view of the foregoing consideration, the Demurrer to Evidence having being well taken, same is granted, and the petition for probate of the document (Exhibit "S") on the purported Holographic Will of the late Matilde Seo Vda. de Ramonal, is denied for insufficiency of evidence and lack of merits.7 On December 12, 1990, respondents filed a notice of appeal,8 and in support of their appeal, the respondents once again reiterated the testimony of the following witnesses, namely: (1) Augusto Neri; (2) Generosa Senon; (3) Matilde Ramonal Binanay; (4) Teresita Vedad; (5) Fiscal Rodolfo Waga; and (6) Evangeline Calugay. To have a clear understanding of the testimonies of the witnesses, we recite an account of their testimonies. Augusto Neri, Clerk of Court, Court of First Instance of Misamis Oriental, where the special proceedings for the probate of the holographic will of the deceased was filed. He produced and identified the records of the case. The documents presented bear the signature of the deceased, Matilde Seo Vda. de Ramonal, for the purpose of laying the basis for comparison of the handwriting of the testatrix, with the writing treated or admitted as genuine by the party against whom the evidence is offered. Generosa Senon, election registrar of Cagayan de Oro, was presented to produced and identify the voter's affidavit of the decedent. However, the voters' affidavit was not produced for the same was already destroyed and no longer available. Matilde Ramonal Binanay, testified that the deceased Matilde Seo Vda. de Ramonal was her aunt, and that after the death of Matilde's husband, the latter lived with her in her parent's house for eleven (11) years from 1958 to 1969. During those eleven (11) years of close association the deceased, she acquired familiarity with her signature and handwriting as she used to accompany her (deceased Matilde Seo Vda. de Ramonal) in collecting rentals from her various tenants of commercial buildings, and deceased always issued receipts. In addition to this, she (witness Matilde Binanay) assisted the deceased in posting the records of the accounts, and carried personal letters of the deceased to her creditors. Matilde Ramonal Binanay further testified that at the time of the death of Matilde Vda. de Ramonal, she left a holographic will dated August 30, 1978, which was personally and entirely written, dated and signed, by the deceased and that all the dispositions therein, the dates, and the signatures in said will, were that of the deceased. Fiscal Rodolfo Waga testified that before he was appointed City Fiscal of Cagayan de Oro, he was a practicing lawyer, and handled all the pleadings and documents signed by the
deceased in connection with the proceedings of her late husband, as a result of which he is familiar with the handwriting of the latter. He testified that the signature appearing in the holographic will was similar to that of the deceased, Matilde Seo Vda. de Ramonal, but he can not be sure. The fifth witness presented was Mrs. Teresita Vedad, an employee of the Department of Environment and Natural Resources, Region 10. She testified that she processed the application of the deceased for pasture permit and was familiar with the signature of the deceased, since the signed documents in her presence, when the latter was applying for pasture permit. Finally, Evangeline Calugay, one of the respondents, testified that she had lived with the deceased since birth, and was in fact adopted by the latter. That after a long period of time she became familiar with the signature of the deceased. She testified that the signature appearing in the holographic will is the true and genuine signature of Matilde Seo Vda. de Ramonal. The holographic will which was written in Visayan, is translated in English as follows: Instruction August 30, 1978 1. My share at Cogon, Raminal Street, for Evangeline Calugay. (Sgd) Matilde Vda de Ramonal August 30, 1978 2. Josefina Salcedo must be given 1,500 square meters at Pinikan Street. (Sgd) Matilde Vda de Ramonal August 30, 1978 3. My jewelry's shall be divided among: 1. Eufemia Patigas 2. Josefina Salcedo 3. Evangeline Calugay (Sgd) Matilde Vda de Ramonal August 30, 1978 4. I bequeath my one (1) hectare land at Mandumol, Indahag to Evangeline R. Calugay (Sgd) Matilde Vda de Ramonal August 30, 1978 5. Give the 2,500 Square Meters at Sta. Cruz Ramonal Village in favor of Evangeline R. Calugay, Helen must continue with the Sta. Cruz, once I am no longer around. (Sgd) Matilde Vda de Ramonal August 30, 1978
Succession Cases Set 7 6. Bury me where my husband Justo is ever buried. (Sgd) Matilde Vda de Ramonal August 30, 1978 Gene and Manuel: Follow my instruction in order that I will rest peacefully. Mama Matilde Vda de Ramonal
On October 9, 1995, the Court of Appeals, rendered decision9 ruling that the appeal was meritorious. Citing the decision in the case of Azaola vs. Singson, 109 Phil. 102, penned by Mr. Justice J. B. L. Reyes, a recognized authority in civil law, the Court of Appeals held: . . . even if the genuineness of the holographic will were contested, we are of the opinion that Article 811 of our present civil code can not be interpreted as to require the compulsory presentation of three witnesses to identify the handwriting of the testator, under penalty of having the probate denied. Since no witness may have been present at the execution of the holographic will, none being required by law (art. 810, new civil code), it becomes obvious that the existence of witnesses possessing the requisite qualifications is a matter beyond the control of the proponent. For it is not merely a question of finding and producing any three witnesses; they must be witnesses "who know the handwriting and signature of the testator" and who can declare (truthfully, of course, even if the law does not express) "that the will and the signature are in the handwriting of the testator." There may be no available witness acquainted with the testator's hand; or even if so familiarized, the witness maybe unwilling to give a positive opinion. Compliance with the rule of paragraph 1 of article 811 may thus become an impossibility. That is evidently the reason why the second paragraph of article 811 prescribes that in the absence of any competent witness referred to in the preceding paragraph, and if the court deems it necessary, expert testimony may be resorted to. As can be see, the law foresees, the possibility that no qualified witness ma be found (or what amounts to the same thing, that no competent witness may be willing to testify to the authenticity of the will), and provides for resort to expert evidence to supply the deficiency. It may be true that the rule of this article (requiring that three witnesses be presented if the will is contested and only one if no contest is had) was derived from the rule established for ordinary testaments (CF Cabang vs. Delfianado, 45 PHIL 291; Tolentino v. Francisco, 57 PHIL 742). But it can not be ignored that the requirement can be considered mandatory only in case of ordinary testaments, precisely because the presence of at least three witnesses at the execution of ordinary wills is made by law essential to their validity (Art. 805). Where the will is holographic, no witness need be present (art. 10), and the rule requiring production of three witnesses must be deemed merely permissive if absurd results are to be avoided. Again, under Art. 811, the resort to expert evidence is conditioned by the words "if the
court deem it necessary", which reveal that what the law deems essential is that the court should be convinced of the will's authenticity. Where the prescribed number of witnesses is produced and the court is convinced by their testimony that the will is genuine, it may consider it unnecessary to call for expert evidence. On the other hand, if no competent witness is available, or none of those produced is convincing, the court may still, and in fact it should resort to handwriting experts. The duty of the court, in fine, is to exhaust all available lines of inquiry, for the state is as much interested as the proponent that the true intention of the testator be carried into effect. Paraphrasing Azaola vs. Singson, even if the genuineness of the holographic will were contested, Article 811 of the civil code cannot be interpreted as to require the compulsory presentation of three witnesses to identify the handwriting of the testator, under penalty of the having the probate denied. No witness need be present in the execution of the holographic will. And the rule requiring the production of three witnesses is merely permissive. What the law deems essential is that the court is convinced of the authenticity of the will. Its duty is to exhaust all available lines of inquiry, for the state is as much interested in the proponent that the true intention of the testator be carried into effect. And because the law leaves it to the trial court to decide if experts are still needed, no unfavorable inference can be drawn from a party's failure to offer expert evidence, until and unless the court expresses dissatisfaction with the testimony of the lay witnesses.10 According to the Court of Appeals, Evangeline Calugay, Matilde Ramonal Binanay and other witnesses definitely and in no uncertain terms testified that the handwriting and signature in the holographic will were those of the testator herself. Thus, upon the unrebutted testimony of appellant Evangeline Calugay and witness Matilde Ramonal Binanay, the Court of Appeals sustained the authenticity of the holographic will and the handwriting and signature therein, and allowed the will to probate. Hence, this petition. The petitioners raise the following issues: (1) Whether or not the ruling of the case of Azaola vs. Singson, 109 Phil. 102, relied upon by the respondent Court of Appeals, was applicable to the case. (2) Whether or not the Court of Appeals erred in holding that private respondents had been able to present credible evidence to that the date, text, and signature on the holographic will written entirely in the hand of the testatrix. (3) Whether or not the Court of Appeals erred in not analyzing the signatures in the holographic will of Matilde Seo Vda. de Ramonal. In this petition, the petitioners ask whether the provisions of Article 811 of the Civil Code are permissive or mandatory. The article provides, as a requirement for the probate of a contested holographic will, that at least three witnesses explicitly declare that the signature in the will is the genuine signature of the testator.1wphi1.nt We are convinced, based on the language used, that Article 811 of the Civil Code is mandatory. The word "shall" connotes a mandatory order. We have ruled that "shall" in a statute commonly denotes an imperative obligation and is inconsistent with the idea of
discretion and that the presumption is that the word "shall," when used in a statute is mandatory.11 Laws are enacted to achieve a goal intended and to guide against an evil or mischief that aims to prevent. In the case at bar, the goal to achieve is to give effect to the wishes of the deceased and the evil to be prevented is the possibility that unscrupulous individuals who for their benefit will employ means to defeat the wishes of the testator. So, we believe that the paramount consideration in the present petition is to determine the true intent of the deceased. An exhaustive and objective consideration of the evidence is imperative to establish the true intent of the testator. It will be noted that not all the witnesses presented by the respondents testified explicitly that they were familiar with the handwriting of testator. In the case of Augusto Neri, clerk of court, Court of First Instance, Misamis Oriental, he merely identified the record of Special Proceedings No. 427 before said court. He was not presented to declare explicitly that the signature appearing in the holographic was that of the deceased. Generosa E. Senon, the election registrar of Cagayan de Oro City, was presented to identify the signature of the deceased in the voter's affidavit, which was not even produced as it was no longer available. Matilde Ramonal Binanay, on the other hand, testified that: Q. And you said for eleven (11) years Matilde Vda de Ramonal resided with your parents at Pinikitan, Cagayan de Oro City. Would you tell the court what was your occupation or how did Matilde Vda de Ramonal keep herself busy that time? A. Collecting rentals. Q. From where? A. From the land rentals and commercial buildings at Pabayo-Gomez streets.12 xxx Q. Who sometime accompany her? A. I sometimes accompany her. Q. In collecting rentals does she issue receipts? A. Yes, sir.13 xxx xxx xxx Q. Showing to you the receipt dated 23 October 1979, is this the one you are referring to as one of the receipts which she issued to them? A. Yes, sir. Q. Now there is that signature of Matilde vda. De Ramonal, whose signature is that Mrs. Binanay? A. Matilde vda. De Ramonal. Q. Why do you say that is the signature of Matilde Vda. De Ramonal? A. I am familiar with her signature. xxx xxx
Q. Now, you tell the court Mrs. Binanay, whether you know Matilde vda de Ramonal kept records of the accounts of her tenants? A. Yes, sir. Q. Why do you say so? A. Because we sometimes post a record of accounts in behalf of Matilde Vda. De Ramonal. Q. How is this record of accounts made? How is this reflected? A. In handwritten.14 xxx xxx xxx Q. In addition to collection of rentals, posting records of accounts of tenants and deed of sale which you said what else did you do to acquire familiarity of the signature of Matilde Vda De Ramonal? A. Posting records. Q. Aside from that? A. Carrying letters. Q. Letters of whom? A. Matilde. Q. To whom? A. To her creditors.15 xxx xxx xxx Q. You testified that at time of her death she left a will. I am showing to you a document with its title "tugon" is this the document you are referring to? A. Yes, sir. Q. Showing to you this exhibit "S", there is that handwritten "tugon", whose handwriting is this? A. My Aunt. Q. Why do you say this is the handwriting of your aunt? A. Because I am familiar with her signature.16 What Ms. Binanay saw were pre-prepared receipts and letters of the deceased, which she either mailed or gave to her tenants. She did not declare that she saw the deceased sign a document or write a note. Further, during the cross-examination, the counsel for petitioners elicited the fact that the will was not found in the personal belongings of the deceased but was in the possession of Ms. Binanay. She testified that: Q. Mrs. Binanay, when you were asked by counsel for the petitioners if the late Matilde Seno vda de Ramonal left a will you said, yes?
Succession Cases Set 7 A. Yes, sir. Q. Who was in possession of that will? A. I. Q. Since when did you have the possession of the will? A. It was in my mother's possession. Q. So, it was not in your possession? A. Sorry, yes.
Q. And when did you come into possession since as you said this was originally in the possession of your mother? A. 1985.17 xxx xxx xxx Q. Now, Mrs. Binanay was there any particular reason why your mother left that will to you and therefore you have that in your possession? A. It was not given to me by my mother, I took that in the aparador when she died. Q. After taking that document you kept it with you? A. I presented it to the fiscal. Q. For what purpose? A. Just to seek advice. Q. Advice of what? A. About the will.18 In her testimony it was also evident that Ms. Binanay kept the fact about the will from petitioners, the legally adopted children of the deceased. Such actions put in issue her motive of keeping the will a secret to petitioners and revealing it only after the death of Matilde Seo Vda. de Ramonal. In the testimony of Ms. Binanay, the following were established: Q. Now, in 1978 Matilde Seno Vda de Ramonal was not yet a sickly person is that correct? A. Yes, sir. Q. She was up and about and was still uprightly and she could walk agilely and she could go to her building to collect rentals, is that correct? A. Yes, sir.19 xxx xxx xxx Q. Now, let us go to the third signature of Matilde Ramonal. Do you know that there are retracings in the word Vda.? A. Yes, a little. The letter L is continuous.
Succession Cases Set 7 Q. And also in Matilde the letter L is continued to letter D? A. Yes, sir.
Q. Again the third signature of Matilde Vda de Ramonal the letter L in Matilde is continued towards letter D. A. Yes, sir. Q. And there is a retracing in the word Vda.? A. Yes, sir.20 xxx xxx xxx Q. Now, that was 1979, remember one year after the alleged holographic will. Now, you identified a document marked as Exhibit R. This is dated January 8, 1978 which is only about eight months from August 30, 1978. Do you notice that the signature Matilde Vda de Ramonal is beautifully written and legible? A. Yes, sir the handwriting shows that she was very exhausted. Q. You just say that she was very exhausted while that in 1978 she was healthy was not sickly and she was agile. Now, you said she was exhausted? A. In writing. Q. How did you know that she was exhausted when you were not present and you just tried to explain yourself out because of the apparent inconsistencies? A. That was I think. (sic). Q. Now, you already observed this signature dated 1978, the same year as the alleged holographic will. In exhibit I, you will notice that there is no retracing; there is no hesitancy and the signature was written on a fluid movement. . . . And in fact, the name Eufemia R. Patigas here refers to one of the petitioners? A. Yes, sir. Q. You will also notice Mrs. Binanay that it is not only with the questioned signature appearing in the alleged holographic will marked as Exhibit X but in the handwriting themselves, here you will notice the hesitancy and tremors, do you notice that? A. Yes, sir.21 Evangeline Calugay declared that the holographic will was written, dated and signed in the handwriting of the testator. She testified that: Q. You testified that you stayed with the house of the spouses Matilde and Justo Ramonal for the period of 22 years. Could you tell the court the services if any which you rendered to Matilde Ramonal? A. During my stay I used to go with her to the church, to market and then to her transactions. Q. What else? What services that you rendered? A. After my college days I assisted her in going to the bank, paying taxes and to her lawyer.
Succession Cases Set 7 Q. What was your purpose of going to her lawyer? A. I used to be her personal driver.
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Q. In the course of your stay for 22 years did you acquire familiarity of the handwriting of Matilde Vda de Ramonal? A. Yes, sir. Q. How come that you acquired familiarity? A. Because I lived with her since birth.22 xxx xxx xxx Q. Now, I am showing to you Exhibit S which is captioned "tugon" dated Agosto 30, 1978 there is a signature here below item No. 1, will you tell this court whose signature is this? A. Yes, sir, that is her signature. Q. Why do you say that is her signature? A. I am familiar with her signature.23 So, the only reason that Evangeline can give as to why she was familiar with the handwriting of the deceased was because she lived with her since birth. She never declared that she saw the deceased write a note or sign a document. The former lawyer of the deceased, Fiscal Waga, testified that: Q. Do you know Matilde Vda de Ramonal? A. Yes, sir I know her because she is my godmother the husband is my godfather. Actually I am related to the husband by consanguinity. Q. Can you tell the name of the husband? A. The late husband is Justo Ramonal.24 xxx xxx xxx Q. Can you tell this court whether the spouses Justo Ramonal and Matilde Ramonal have legitimate children? A. As far as I know they have no legitimate children.25 xxx A. Here in Cagayan de Oro City. Q. Do you have services rendered with the deceased Matilde vda de Ramonal? A. I assisted her in terminating the partition, of properties. Q. When you said assisted, you acted as her counsel? Any sort of counsel as in what case is that, Fiscal? A. It is about the project partition to terminate the property, which was under the court xxx xxx Q. You said after becoming a lawyer you practice your profession? Where?
Succession Cases Set 7 before.26 xxx xxx xxx
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Q. Appearing in special proceeding no. 427 is the amended inventory which is marked as exhibit N of the estate of Justo Ramonal and there appears a signature over the type written word Matilde vda de Ramonal, whose signature is this? A. That is the signature of Matilde Vda de Ramonal. Q. Also in exhibit n-3, whose signature is this? A. This one here that is the signature of Mrs. Matilde vda de Ramonal.27 xxx xxx xxx Q. Aside from attending as counsel in that Special Proceeding Case No. 427 what were the other assistance wherein you were rendering professional service to the deceased Matilde Vda de Ramonal? A. I can not remember if I have assisted her in other matters but if there are documents to show that I have assisted then I can recall.28 xxx xxx xxx Q. Now, I am showing to you exhibit S which is titled "tugon", kindly go over this document, Fiscal Waga and tell the court whether you are familiar with the handwriting contained in that document marked as exhibit "S"? A. I am not familiar with the handwriting. Q. This one, Matilde Vda de Ramonal, whose signature is this? A. I think this signature here it seems to be the signature of Mrs. Matilde vda de Ramonal. Q. Now, in item No. 2 there is that signature here of Matilde Vda de Ramonal, can you tell the court whose signature is this? A. Well, that is similar to that signature appearing in the project of partition. Q. Also in item no. 3 there is that signature Matilde Vda de Ramonal, can you tell the court whose signature is that? A. As I said, this signature also seems to be the signature of Matilde vda de Ramonal. Q. Why do you say that? A. Because there is a similarity in the way it is being written. Q. How about this signature in item no. 4, can you tell the court whose signature is this? A. The same is true with the signature in item no. 4. It seems that they are similar.29 xxx xxx xxx Q. Mr. Prosecutor, I heard you when you said that the signature of Matilde Vda de Ramonal Appearing in exhibit S seems to be the signature of Matilde vda de Ramonal?
Succession Cases Set 7 A. Yes, it is similar to the project of partition.
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Q. So you are not definite that this is the signature of Matilde vda de Ramonal. You are merely supposing that it seems to be her signature because it is similar to the signature of the project of partition which you have made? A. That is true.30 From the testimonies of these witnesses, the Court of Appeals allowed the will to probate and disregard the requirement of three witnesses in case of contested holographic will, citing the decision in Azaola vs. Singson,31ruling that the requirement is merely directory and not mandatory. In the case of Ajero vs. Court of Appeals,32 we said 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. However, we cannot eliminate the possibility of a false document being adjudged as the will of the testator, which is why if the holographic will is contested, that law requires three witnesses to declare that the will was in the handwriting of the deceased. The will was found not in the personal belongings of the deceased but with one of the respondents, who kept it even before the death of the deceased. In the testimony of Ms. Binanay, she revealed that the will was in her possession as early as 1985, or five years before the death of the deceased. There was no opportunity for an expert to compare the signature and the handwriting of the deceased with other documents signed and executed by her during her lifetime. The only chance at comparison was during the cross-examination of Ms. Binanay when the lawyer of petitioners asked Ms. Binanay to compare the documents which contained the signature of the deceased with that of the holographic will and she is not a handwriting expert. Even the former lawyer of the deceased expressed doubts as to the authenticity of the signature in the holographic will. A visual examination of the holographic will convince us that the strokes are different when compared with other documents written by the testator. The signature of the testator in some of the disposition is not readable. There were uneven strokes, retracing and erasures on the will. Comparing the signature in the holographic will dated August 30, 1978,33 and the signatures in several documents such as the application letter for pasture permit dated December 30, 1980,34 and a letter dated June 16, 1978,35 the strokes are different. In the letters, there are continuous flows of the strokes, evidencing that there is no hesitation in writing unlike that of the holographic will. We, therefore, cannot be certain that ruling holographic will was in the handwriting by the deceased. IN VIEW WHEREOF, the decision appealed from is SET ASIDE. The records are ordered remanded to the court of origin with instructions to allow petitioners to adduce evidence in support of their opposition to the probate of the holographic will of the deceased Matilde Seo
Succession Cases Set 7 vda. de Ramonal.1wphi1.nt
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No costs.SO ORDERED.Davide, Jr., C.J., Puno, Kapunan and Ynares-Santiago, JJ., concur. G.R. No. L-26317 January 29, 1927 Estate of Miguel Mamuyac, deceased. FRANCISCO GAGO, petitioner-appellant, vs. CORNELIO MAMUYAC, AMBROSIO LARIOSA, FELICIANA BAUZON, and CATALINA MAMUYAC, opponents-appellees.Nicanor Tavora for appellant.Jose Rivera for appellees. JOHNSON, J.: The purpose of this action was to obtain the probation of a last will and testament of Miguel Mamuyac, who died on the 2d day of January, 1922, in the municipality of Agoo of the Province of La Union. It appears from the record that on or about the 27th day of July, 1918, the said Miguel Mamuyac executed a last will and testament (Exhibit A). In the month of January, 1922, the said Francisco Gago presented a petition in the Court of First Instance of the Province of La Union for the probation of that will. The probation of the same was opposed by Cornelio Mamuyac, Ambrosio Lariosa, Feliciana Bauzon, and Catalina Mamuyac (civil cause No. 1144, Province of La Union). After hearing all of the parties the petition for the probation of said will was denied by the Honorable C. M. Villareal on the 2d day of November, 1923, upon the ground that the deceased had on the 16th day of April, 1919, executed a new will and testament. On the 21st day of February, 1925, the present action was commenced. Its purpose was to secure the probation of the said will of the 16th day of April, 1919 (Exhibit 1). To said petition Cornelio Mamuyac, Ambrosio Lariosa, Feliciana Bauzon, and Catalina Mamuyac presented their oppositions, alleging ( a) that the said will is a copy of the second will and testament executed by the said Miguel Mamuyac; ( b) that the same had been cancelled and revoked during the lifetime of Miguel Mamuyac and ( c) that the said will was not the last will and testament of the deceased Miguel Mamuyac. Upon the issue thus presented, the Honorable Anastacio R. Teodoro, judge, after hearing the respective parties, denied the probation of said will of April 16, 1919, upon the ground that the same had been cancelled and revoked in the year 1920. Judge Teodoro, after examining the evidence adduced, found that the following facts had been satisfactorily proved: That Exhibit A is a mere carbon of its original which remained in the possession of the deceased testator Miguel Mamuyac, who revoked it before his death as per testimony of witness Jose Fenoy, who typed the will of the testator on April 16, 1919, and Carlos Bejar, who saw on December 30, 1920, the original Exhibit A (will of 1919) actually cancelled by the testator Miguel Mamuyac, who assured Carlos Bejar that inasmuch as he had sold him a house and the land where the house was built, he had to cancel it (the will of 1919), executing thereby a new testament. Narcisa Gago in a way corroborates the testimony of Jose Fenoy, admitting that the will executed by the deceased (Miguel Mamuyac) in 1919 was found in the possession of father Miguel Mamuyac. The opponents have successfully established the fact that father Miguel Mamuyac had executed in 1920 another will. The same Narcisa Gago, the sister of the deceased, who was living in the house with him, when cross-examined by attorney for the opponents, testified that the original Exhibit A could not be found. For the foregoing consideration and for the reason that the original of Exhibit A has been cancelled by the
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deceased father Miguel Mamuyac, the court disallows the probate of Exhibit A for the applicant." From that order the petitioner appealed. The appellant contends that the lower court committed an error in not finding from the evidence that the will in question had been executed with all the formalities required by the law; that the same had been revoked and cancelled in 1920 before his death; that the said will was a mere carbon copy and that the oppositors were not estopped from alleging that fact. With reference to the said cancellation, it may be stated that there is positive proof, not denied, which was accepted by the lower court, that will in question had been cancelled in 1920. The law does not require any evidence of the revocation or cancellation of a will to be preserved. It therefore becomes difficult at times to prove the revocation or cancellation of wills. The fact that such cancellation or revocation has taken place must either remain unproved of be inferred from evidence showing that after due search the original will cannot be found. Where a will which cannot be found is shown to have been in the possession of the testator, when last seen, the presumption is, in the absence of other competent evidence, that the same was cancelled or destroyed. The same presumption arises where it is shown that the testator had ready access to the will and it cannot be found after his death. It will not be presumed that such will has been destroyed by any other person without the knowledge or authority of the testator. The force of the presumption of cancellation or revocation by the testator, while varying greatly, being weak or strong according to the circumstances, is never conclusive, but may be overcome by proof that the will was not destroyed by the testator with intent to revoke it. In view of the fat that the original will of 1919 could not be found after the death of the testator Miguel Mamuyac and in view of the positive proof that the same had been cancelled, we are forced to the conclusion that the conclusions of the lower court are in accordance with the weight of the evidence. In a proceeding to probate a will the burden of proofs is upon the proponent clearly to establish not only its execution but its existence. Having proved its execution by the proponents, the burden is on the contestant to show that it has been revoked. In a great majority of instances in which wills are destroyed for the purpose of revoking them there is no witness to the act of cancellation or destruction and all evidence of its cancellation perishes with the testator. Copies of wills should be admitted by the courts with great caution. When it is proven, however, by proper testimony that a will was executed in duplicate and each copy was executed with all the formalities and requirements of the law, then the duplicate may be admitted in evidence when it is made to appear that the original has been lost and was not cancelled or destroyed by the testator. (Borromeo vs. Casquijo, G.R. No. L-26063.)1 After a careful examination of the entire record, we are fully persuaded that the will presented for probate had been cancelled by the testator in 1920. Therefore the judgment appealed from is hereby affirmed. And without any finding as to costs, it is so ordered. Street, Malcolm, Villamor, Ostrand, Romualdez and Villa-Real, JJ., concur G.R. No. L-2538 September 21, 1951 Testate Estate of the Deceased MARIANO MOLO Y LEGASPI. JUANA JUAN VDA. DE MOLO, petitioner-appellee, vs.LUZ, GLICERIA and CORNELIO MOLO, oppositors-appellants.Claro M. Recto and Serafin C. Dizon for appellants. Delgado & Flores for appellee. BAUTISTA ANGELO, J.:
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This is an appeal from an order of the Court of First Instance of Rizal admitting to probate the last will and testament of the deceased Mariano Molo y Legaspi executed on August 17, 1918. The oppositors-appellants brought the case on appeal to this Court for the reason that the value of the properties involved exceeds P50,000. Mariano Molo y Legaspi died on January 24, 1941, in the municipality of Pasay, province of Rizal, without leaving any forced heir either in the descending or ascending line. He was survived, however, by his wife, the herein petitioner Juana Juan Vda. de Molo, and by his nieces and nephew, the oppositors-appellants, Luz Gliceria and Cornelio, all surnamed Molo, who were the legitimate children of Candido Molo y Legaspi, deceased brother of the testator. Mariano Molo y Legaspi left two wills, one executed on August 17, 1918, (Exhibit A) and another executed on June 20, 1939. (Exhibit I). The later will executed in 1918. On February 7, 1941, Juana Juan Vda. de Molo, filed in the Court of First Instance of Rizal a petition, which was docketed as special proceeding No. 8022 seeking the probate of the will executed by the deceased on June 20, 1939. There being no opposition, the will was probated. However, upon petition filed by the herein oppositors, the order of the court admitting the will to probate was set aside and the case was reopened. After hearing, at which both parties presented their evidence, the court rendered decision denying the probate of said will on the ground that the petitioner failed to prove that the same was executed in accordance with law. In view of the disallowance of the will executed on June 20, 1939, the widow on February 24, 1944, filed another petition for the probate of the will executed by the deceased on August 17, 1918, which was docketed as special proceeding No. 56, in the same court. Again, the same oppositors filed an opposition to the petition based on three grounds: (1) that petitioner is now estopped from seeking the probate of the will of 1918; (2) that said will has not been executed in the manner required by law and (3) that the will has been subsequently revoked. But before the second petition could be heard, the battle for liberation came and the records of the case were destroyed. Consequently, a petition for reconstitution was filed, but the same was found to be impossible because neither petitioner nor oppositors could produce the copies required for its reconstitution. As a result, petitioner filed a new petition on September 14, 1946, similar to the one destroyed, to which the oppositors filed an opposition based on the same grounds as those contained in their former opposition. Then, the case was set for trial, and on May 28, 1948, the court issued an order admitting the will to probate already stated in the early part of this decision. From this order the oppositors appealed assigning six errors, to wit. I. The probate court erred in not holding that the present petitioner voluntarily and deliberately frustrated the probate of the will dated June 20, 1939, in special proceeding No. 8022, in order to enable her to obtain the probate of another alleged will of Molo dated 191. II. The court a quo erred in not holding that the petitioner is now estopped from seeking the probate of Molo's alleged will of 1918. III. The lower court erred in not holding that petitioner herein has come to court with "unclean hands" and as such is not entitled to relief. IV. The probate court erred in not holding that Molo's alleged will of August 17, 1918 was not executed in the manner required by law.
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V. The probate court erred in not holding that the alleged will of 1918 was deliberately revoked by Molo himself. VI. The lower court erred in not holding that Molo's will of 1918 was subsequently revoked by the decedent's will of 1939. In their first assignment of error, counsel for oppositors contend that the probate court erred in not holding that the petitioner voluntarily and deliberately frustrated the probate of the will dated June 20, 1939, in order to enable her to obtain the probate of the will executed by the deceased on August 17, 1918, pointing out certain facts and circumstances with their opinion indicate that petitioner connived with the witness Canuto Perez in an effort to defeat and frustrate the probate of the 1939 will because of her knowledge that said will intrinsically defective in that "the one and only testamentory disposition thereof was a "disposicion captatoria". These circumstances, counsel for the appellants contend, constitute a series of steps deliberately taken by petitioner with a view to insuring the realization of her plan of securing the probate of the 1918 will which she believed would better safeguard her right to inherit from the decease. These imputations of fraud and bad faith allegedly committed in connection with special proceedings No. 8022, now closed and terminated, are vigorously met by counsel for petitioner who contends that to raise them in these proceedings which are entirely new and distinct and completely independent from the other is improper and unfair as they find no support whatsoever in any evidence submitted by the parties in this case. They are merely based on the presumptions and conjectures not supported by any proof. For this reason, counsel, contends, the lower court was justified in disregarding them and in passing them sub silentio in its decision. A careful examination of the evidence available in this case seems to justify this contention. There is indeed no evidence which may justify the insinuation that petitioner had deliberately intended to frustrate the probate of the 1939 will of the deceased to enable her to seek the probate of another will other than a mere conjecture drawn from the apparently unexpected testimony of Canuto Perez that he went out of the room to answer an urgent call of nature when Artemio Reyes was signing the will and the failure of petitioner later to impeach the character of said witness in spite of the opportunity given her by the court to do so. Apart from this insufficiency of evidence, the record discloses that this failure has been explained by petitioner when she informed the court that she was unable to impeach the character of her witness Canuto Perez because of her inability to find witnesses who may impeach him, and this explanation stands uncontradicted. Whether this explanation is satisfactory or not, it is not now, for us to determine. It is an incident that comes within the province of the former case. The failure of petitioner to present the testimony of Artemio Reyes at the hearing has also been explained, and it appears that petitioner has filed because his whereabouts could not be found. Whether this is true or not is also for this Court to determine. It is likewise within the province and function of the court in the former case. And the unfairness of this imputation becomes more glaring when we stock of the developments that had taken place in these proceedings which show in bold relief the true nature of the conduct, behavior and character of the petitioner so bitterly assailed and held in disrepute by the oppositors. It should be recalled that the first petition for the probate of the will executed on June 20, 1939, was filed on February 7, 1941, by the petitioner. There being no opposition, the will was
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probated. Subsequently, however, upon petition of the herein oppositors, the order of the court admitting said will to probate was set aside, over the vigorous opposition of the herein petitioner, and the case was reopened. The reopening was ordered because of the strong opposition of the oppositors who contended that he will had not been executed as required by law. After the evidence of both parties had been presented, the oppositors filed an extensive memorandum wherein they reiterated their view that the will should be denied probate. And on the strenght of this opposition, the court disallowed the will. If petitioner then knew that the 1939 will was inherently defective and would make the testamentary disposition in her favor invalid and ineffective, because it is a "disposicion captatoria", which knowledge she may easily acquire through consultation with a lawyer, there was no need her to go through the order of filing the petition for the probate of the will. She could accomplish her desire by merely suppressing the will or tearing or destroying it, and then take steps leading to the probate of the will executed in 1918. But for her conscience was clear and bade her to take the only proper step possible under the circumstances, which is to institute the necessary proceedings for the probate of the 1939 will. This she did and the will was admitted to probate. But then the unexpected happened. Over her vigorous opposition, the herein appellants filed a petition for reopening, and over her vigorous objection, the same was granted and the case was reopened. Her motion for reconsideration was denied. Is it her fault that the case was reopened? Is it her fault that the order admitting the will to probate was set aside? That was a contingency which petitioner never expected. Had appellants not filed their opposition to the probate of the will and had they limited their objection to the intrinsic validity of said will, their plan to defeat the will and secure the intestacy of the deceased would have perhaps been accomplished. But they failed in their strategy. If said will was denied probate it is due to their own effort. It is now unfair to impute bad faith petitioner simply because she exerted every effort to protect her own interest and prevent the intestacy of the deceased to happen. Having reached the foregoing conclusions, it is obvious that the court did not commit the second and third errors imputed to it by the counsel for appellants. Indeed, petitioner cannot be considered guilty or estoppel which would prevent her from seeking the probate of the 1918 will simply because of her effort to obtain the allowance of the 1939 will has failed considering that in both the 1918 and 1939 wills she was in by her husband as his universal heir. Nor can she be charged with bad faith far having done so because of her desire to prevent the intestacy of her husband. She cannot be blamed being zealous in protecting her interest. The next contention of appellants refers to the revocatory clause contained in 1939 will of the deceased which was denied probate. They contend that, notwithstanding the disallowance of said will, the revocatory clause is valid and still has the effect of nullifying the prior of 1918. Counsel for petitioner meets this argument by invoking the doctrine laid down in the case of Samson vs. Naval, (41 Phil., 838). He contends that the facts involved in that case are on all fours with the facts of this case. Hence, the doctrine is that case is here controlling. There is merit in this contention. We have carefully read the facts involved in the Samson case we are indeed impressed by their striking similarity with the facts of this case. We do not need to recite here what those facts are; it is enough to point out that they contain many points and circumstances in common. No reason, therefore, is seen by the doctrine laid down
Succession Cases Set 7 in that case (which we quote hereunder) should not apply and control the present case.
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A subsequent will, containing a clause revoking a previous will, having been disallowed, for the reason that it was not executed in conformity with the provisions of section 618 of the Code of Civil Procedure as to the making of wills, cannot produce the effect of annulling the previous will, inasmuch as said revocatory clause is void. (41 Phil., 838.) Apropos of this question, counsel for oppositors make the remark that, while they do not disagree with the soundness of the ruling laid down in the Samson case, there is reason to abandon said ruling because it is archaic or antiquated and runs counter to the modern trend prevailing in American jurisprudence. They maintain that said ruling is no longer controlling but merely represents the point of view of the minority and should, therefore, be abandoned, more so if we consider the fact that section 623 of our Code of Civil Procedure, which governs the revocation of wills, is of American origin and as such should follow the prevailing trend of the majority view in the United States. A long line of authorities is cited in support of this contention. And these authorities hold the view, that "an express revocation is immediately effective upon the execution of the subsequent will, and does not require that it first undergo the formality of a probate proceeding". (p. 63, appellants' brief . While they are many cases which uphold the view entertained by counsel for oppositors, and that view appears to be in controlling the states where the decisions had been promulgated, however, we are reluctant to fall in line with the assertion that is now the prevailing view in the United States. In the search we have made of American authorities on the subject, we found ourselves in a pool of conflicting opinions perhaps because of the peculiar provisions contained in the statutes adopted by each State in the subject of revocation of wills. But the impression we gathered from a review and the study of the pertinent authorities is that the doctrine laid down in the Samson case is still a good law. On page 328 of the American Jurisprudence Vol. 57, which is a revision Published in 1948, we found the following passages which in our opinion truly reflect the present trend of American jurisprudence on this matter affecting the revocation of wills: SEC. 471. Observance of Formalities in Execution of Instrument . Ordinarily, statutes which permit the revocation of a will by another writing provide that to be effective as a revocation, the writing must be executed with the same formalities which are required to be observed in the execution of a will. Accordingly, where, under the statutes, attestation is necessary to the making of a valid will, an unattested non testamentary writing is not effective to revoke a prior will. It has been held that a writing fails as a revoking instrument where it is not executed with the formalities requisite for the execution of a will, even though it is inscribed on the will itself, although it may effect a revocation by cancellation or obliteration of the words of the will. A testator cannot reserve to himself the power to modify a will by a written instrument subsequently prepared but not executed in the manner required for a will. SEC, 472. Subsequent Unexecuted, Invalid, or Ineffective Will or Codicil . A will which is invalid because of the incapacity of the testator, or of undue influence can have no effect whatever as a revoking will. Moreover, a will is not revoked by the unexecuted draft of a later one. Nor is a will revoked by a defectively executed will or codicil, even though the latter contains a clause expressly revoking the former will, in a
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jurisdiction where it is provided by a controlling statute that no writing other than a testamentary instrument is sufficient to revoke a will, for the simple reason that there is no revoking will. Similarly where the statute provides that a will may be revoked by a subsequent will or other writing executed with the same formalities as are required in the execution of wills, a defectively executed will does not revoke a prior will, since it cannot be said that there is a writing which complies with the statute. Moreover, a will or codicil which, on account of the manner in which it is executed, is sufficient to pass only personally does not affect dispositions of real estate made by a former will, even though it may expressly purport to do so. The intent of the testator to revoke is immaterial, if he has not complied with the statute. (57 Am. Jur., 328, 329.) We find the same opinion in the American Law Reports, Annotated, edited in 1939. On page 1400, Volume 123, there appear many authorities on the "application of rules where second will is invalid", among which a typical one is the following: It is universally agreed that where the second will is invalid on account of not being executed in accordance with the provisions of the statute, or where the testator who has not sufficient mental capacity to make a will or the will is procured through undue influence, or the such, in other words, where the second will is really no will, it does not revoke the first will or affect it in any manner. Mort vs. Baker University (193-5) 229 Mo. App., 632, 78 S.W. (2d), 498. These treaties cannot be mistaken. They uphold the view on which the ruling in the Samson case is predicated. They reflect the opinion that this ruling is sound and good and for this reason, we see no justification for abondoning it as now suggested by counsel for the oppositors. It is true that our law on the matter (sec. 623, Code Civil Procedure) provides that a will may be some will, codicil, or other writing executed as proved in case of wills" but it cannot be said that the 1939 will should be regarded, not as a will within the meaning of said word, but as "other writing executed as provided in the case of wills", simply because it was denied probate. And even if it be regarded as any other writing within the meaning of said clause, there is authority for holding that unless said writing is admitted to probate, it cannot have the effect of revocation. (See 57 Am. Jur. pp. 329-330). But counsel for oppositors contemned that, regardless of said revocatory clause, said will of 1918 cannot still be given effect because of the presumption that it was deliberately revoked by the testator himself. The oppositors contend that the testator, after executing the 1939 will, and with full knowledge of the recovatory clause contained said will, himself deliberately destroyed the original of the 1918 will, and for that reason the will submitted by petitioner for probate in these proceedings is only a duplicate of said original. There is no evidence which may directly indicate that the testator deliberately destroyed the original of the 1918 will because of his knowledge of the revocatory clause contained in the will he executed in 1939. The only evidence we have is that when the first will was executed in 1918, Juan Salcedo, who prepared it, gave the original and copies to the testator himself and apparently they remained in his possession until he executed his second will in 1939. And when the 1939 will was denied probate on November 29, 1943, and petitioner was asked by her attorney to look for another will, she found the duplicate copy (Exhibit A) among the papers or files of the testator. She did not find the original.
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If it can be inferred that the testator deliberately destroyed the 1918 will because of his knowledge of the revocatory clause of the 1939 will, and it is true that he gave a duplicate copy thereof to his wife, the herein petitioner, the most logical step for the testator to take is to recall said duplicate copy in order that it may likewise be destroyed. But this was not done as shown by the fact that said duplicate copy remained in the possession of petitioner. It is possible that because of the long lapse of twenty-one (21) years since the first will was executed, the original of the will had been misplaced or lost, and forgetting that there was a copy, the testator deemed it wise to execute another will containing exactly the same testamentary dispositions. Whatever may be the conclusion we may draw from this chain of circumstances, the stubborn fact is that there is no direct evidence of voluntary or deliberate destruction of the first will by the testator. This matter cannot be inference or conjectur. Granting for the sake of argument that the earlier will was voluntarily destroyed by the testator after the execution of the second will, which revoked the first, could there be any doubt, under this theory, that said earlier will was destroyed by the testator in the honest belief that it was no longer necessary because he had expressly revoked it in his will of 1939? In other words, can we not say that the destruction of the earlier will was but the necessary consequence of the testator's belief that the revocatory clause contained in the subsequent will was valid and the latter would be given effect? If such is the case, then it is our opinion that the earlier will can still be admitted to probate under the principle of "dependent relative revocation". This doctrine is known as that of dependent relative revocation, and is usually applied where the testator cancels or destroys a will or executes an instrument intended to revoke a will with a present intention to make a new testamentary disposition as a substitute for the old, and the new disposition is not made or, if made, fails of effect for same reason. The doctrine is n limited to the existence of some other document, however, and has been applied where a will was destroyed as a consequence of a mistake of law. . . . (68 C.J.P. 799). The rule is established that where the act of destruction is connected with the making of another will so as fairly to raise the inference that the testator meant the revocation of the old to depend upon the efficacy of a new disposition intended to be substituted, the revocation will be conditional and dependent upon the efficacy of the new disposition; and if, for any reason, the new will intended to be made as a substitute is inoperative, the revocation fails and the original will remains in full force. (Gardner, pp. 232, 233.) This is the doctrine of dependent relative revocation. The failure of a new testamentary disposition upon whose validity the revocation depends, is equivalent to the nonfulfillment of a suspensive conditions, and hence prevents the revocation of the original will. But a mere intent to make at some time a will in the place of that destroyed will not render the destruction conditional. It must appear that the revocation is dependent upon the valid execution of a new will. (1 Alexander, p. 751; Gardner, p. 253.) We hold therefore, that even in the supposition that the destruction of the original will by the testator could be presumed from the failure of the petitioner to produce it in court, such destruction cannot have the effect of defeating the prior will of 1918 because of the fact that it is founded on the mistaken belief that the will of 1939 has been validly executed and would be given due effect. The theory on which this principle is predicated is that the testator did not
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intend to die intestate. And this intention is clearly manifest when he executed two wills on two different occasion and instituted his wife as his universal heir. There can therefore be no mistake as to his intention of dying testate. The remaining question to be determined refers to the sufficiency of the evidence to prove the due execution of the will. The will in question was attested, as required by law, by three witnesses, Lorenzo Morales, Rufino Enriquez, and Angel Cuenca. The first two witnesses died before the commencement of the present proceedings. So the only instrumental witness available was Angel Cuenca and under our law and precedents, his testimony is sufficient to prove the due execution of the will. However, petitioner presented not only the testimony of Cuenca but placed on the witness stand Juan Salcedo, the notary public who prepared and notarized the will upon the express desire and instruction of the testator, The testimony of these witnesses shows that the will had been executed in the manner required by law. We have read their testimony and we were impressed by their readiness and sincerity. We are convinced that they told the truth. Wherefore, the order appealed from is hereby affirmed, with costs against the appellants.1wphl.nt Paras, C.J. Feria, Pablo Bengzon, Tuason and Jugo JJ., concur G.R. No. L-48840 December 29, 1943 ERNESTO M. GUEVARA, petitionerappellant, vs.ROSARIO GUEVARA and her husband PEDRO BUISON, respondentappellees.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
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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, proindiviso, a mis siguientes herederos como sigue: A mi hijo legitimo, Ernesto M. Guevara, ciento ocho (108) hectareas, ocho (8) areas y cincuenta y cuatro (54) centiareas, hacia la parte que colinda al Oeste de las cien (100) hectareas referidas en el inciso ( a) de este parrafo del testamento, como su propiedad absoluta y exclusiva, en la cual extension superficial estan incluidas cuarenta y tres (43) hectareas, veintitres (23) areas y cuarenta y dos (42) centiareas que le doy en concepto de mejora. A mi hija natural reconocida, Rosario Guevara, veintiun (21) hectareas, sesenta y un (61) areas y setenta y un (71) centiareas, que es la parte restante. Duodecimo. Nombro por la presente como Albacea Testamentario a mi hijo Ernesto M. Guevara, con relevacion de fianza. Y una vez legalizado este testamento, y en cuanto sea posible, es mi deseo, que los herederos y legatarios aqui nombrados se repartan extrajudicialmente mis bienes de conformidad con mis disposiciones arriba consignadas. Subsequently, and on July 12, 1933, Victorino L. Guevarra executed whereby he conveyed to him the southern half of the large parcel of land of which he had theretofore disposed by the will above mentioned, inconsideration of the sum of P1 and other valuable considerations, among which were the payment of all his debts and obligations amounting to not less than P16,500, his maintenance up to his death, and the expenses of his last illness and funeral expenses. As to the northern half of the same parcel of land, he declared: "Hago constar tambien que reconozco a mi referido hijo Ernesto M. guevara como dueo de la mitad norte de la totalidad y conjunto de los referidos terrenos por haberlos comprado de su propio peculio del Sr. Rafael T. Puzon a quien habia vendido con anterioridad." 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.
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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,
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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 (Leao vs. Leao, supra), which is now sanctioned by section 1 of Rule 74 of the Rules of Court. Besides, section 6 of Rule 124 provides that, if the procedure which the court ought to follow in the exercise of its jurisdiction is not specifically pointed out by the Rules of Court, any suitable process or mode of procedure may be adopted which appears most consistent to the spirit of the said Rules. Hence, we declare the action instituted by the plaintiff to be in accordance with law. 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
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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
Succession Cases Set 7 present it to the court for probate.
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Even if the decedent left no debts and nobdy raises any question as to the authenticity and due execution of the will, none of the heirs may sue for the partition of the estate in accordance with that will without first securing its allowance or probate by the court, first, because the law expressly provides that "no will shall pass either real or personal estate unless it is proved and allowed in the proper court"; and, second, because the probate of a will, which is a proceeding in rem, cannot be dispensed with the substituted by any other proceeding, judicial or extrajudicial, without offending against public policy designed to effectuate the testator's right to dispose of his property by will in accordance with law and to protect the rights of the heirs and legatees under the will thru the means provided by law, among which are the publication and the personal notices to each and all of said heirs and legatees. Nor may the court approve and allow the will presented in evidence in such an action for partition, which is one in personam, any more than it could decree the registration under the Torrens system of the land involved in an ordinary action for reinvindicacion or partition. We therefore believe and so hold that section 1 of Rule 74, relied upon by the Court of Appeals, does not sanction the procedure adopted by the respondent. The case of Leao vs. Leao (25 Phil., 180), cited by the Court of Appeals, like section 1 of Rule 74, sanctions the extrajudicial partition by the heirs of the properties left by a decedent, but not the nonpresentation of a will for probate. In that case one Paulina Ver executed a will on October 11, 1902, and died on November 1, 1902. Her will was presented for probate on November 10, 1902, and was approved and allowed by the Court on August 16, 1904. In the meantime, and on November 10, 1902, the heirs went ahead and divided the properties among themselves and some of them subsequently sold and disposed of their shares to third persons. It does not affirmatively appear in the decision in that case that the partition made by the heirs was not in accordance with the will or that they in any way disregarded the will. In closing the case by its order dated September 1, 1911, the trial court validated the partition, and one of the heirs, Cunegunda Leao, appealed. In deciding the appeal this Court said: The principal assignment of error is that the lower court committed an error in deciding that the heirs and legatees of the estate of Da. Paulina Ver had voluntarily divided the estate among themselves. In resolving that question this Court said: 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.
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In the subsequent case of Riosa vs. Rocha (1926), 48 Phil. 737, this Court departed from the procedure sanctioned by the trial court and impliedly approved by this Court in the Leao case, by holding that an extrajudicial partition is not proper in testate succession. In the Riosa case the Court, speaking thru Chief Justice Avancea, held: 1. EXTRAJUDICIAL PARTITION; NOT PROPER IN TESTATE SUCCESSION. Section 596 of the Code of Civil Procedure, authorizing the heirs of a person who dies intestate to make extrajudicial partition of the property of the deceased, without going into any court of justice, makes express reference to intestate succession, and therefore excludes testate succession. 2. ID.; EFFECTS OF; TESTATE SUCCESSION. In the instant case, which is a testate succession, the heirs made an extrajudicial partition of the estate and at the same time instituted proceeding for the probate of the will and the administration of the estate. When the time came for making the partition, they submitted to the court the extrajudicial partition previously made by them, which the court approved. Held: That for the purposes of the reservation and the rights and obligations created thereby, in connection with the relatives benefited, the property must not be deemed transmitted to the heirs from the time the extrajudicial partition was made, but from the time said partition was approved by the court. (Syllabus.) 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
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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
29
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
30
document is approved and allowed by the court as the last will and testament of the deceased Victorino L. Guevara, the heirs and legatees therein named may take such action, judicial or extrajudicial, as may be necessary to partition the estate of the testator, taking into consideration the pronouncements made in part II of this opinion. No finding as to costs in any of the three instances. Yulo, C.J., and Hontiveros, 1 J., concur. Separate Opinions BOCOBO, J., concurring: I concur in the result. Extrajudicial settlement by agreement among the heirs is authorized by section 1 of Rule 74. only "if the decedent left no debts." In this case, according to the findings of the Court of Appeals, Ernesto M. Guevara "has been paying the debts left by his father." It is true that said Ernesto M. Guevara, in consideration of the conveyance to him of the southern half of the hacienda, assumed all the debts of the deceased, but this agreement is binding only upon the parties to the contract but not upon the creditors who did not consent thereto. (Art. 1205, Civil Code.) There being debts when the father died, section 1 of Rule 74 is not applicable. MORAN, J., concurring in part and dissenting in part: I would be agreeable to the majority decision but for a statement therein made which in my view repeals by an erroneous interpretation the provisions of Rule 74, section 1, of the Rules of Court, which reads as follows: 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. The majority holds that under this provision, the heirs and legatees, even if all of them are of age, and there are no debts to be paid, cannot make an extrajudicial settlement of the estate left by the decedent without first submitting in court for probate the will left by the testator. This erroneous interpretation clearly overlooks not only the letter and the spirit but more specially the whole background of the provision. It is admitted that the provision has been taken from section 596 of Act No. 190 but with modification consisting in that it is made to apply in testate succession. Said section 596 reads: SETTLEMENT OF CERTAIN INTESTATE ESTATES 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.
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It must be observed that the procedure contemplated in this legal provision is completely extrajudicial and the same procedure intended in section 1 of Rule 74 above quoted which is captioned "Extrajudicial Settlement by Agreement . . .". Justice Laurel, who was one of the members of this Court when the new Rules were promulgated, in commenting upon Rule 74, said: RULE 74. SUMMARY SETTLEMENT OF ESTATES. The corresponding provisions in the Code of Civil Procedures are sections 596-598. There is substantial analogy between the provisions of the Code of Civil Procedure and those of Rule 74, save that: (1) Under section 1 of Rule 74, there may be extrajudicial settlement whether a person died testate or intestate, while under section 596 of the Code of Civil Procedure extrajudicial settlement can be had only when a person dies intestate. (2) Under Rule 74, section 1, extrajudicial settlement may take place 'if the decedent left no debts,' while under section 596 of the Code of Civil Procedure it may take place 'when there are no debts due from the estate, or all the debts have been paid.' (3) Under section 596 of the Code of Civil Procedure, extrajudicial settlement may take place when 'the heirs and legatees are of lawful age and legal capacity, while under section 1 of Rule 74 it may take place when the 'the heirs and legatees are all of legal age, or the minors are represented by their judicial guardians' (4) Unlike the Code of Civil Procedure, section 596, section 1 of Rule 74 requires the extrajudicial agreement to be filed in the office of the register of deeds; provides that should the heirs disagree, 'they may do so in an ordinary action of partition', and that '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', and that 'it shall be presumed that the decedent left no debts if no creditor files a petition for letter of administration within two years after the death of the decedent.' [(Emphasis mine); Laurel, Procedural Reform in the Philippines, pp. 137-138]. The phrase "extrajudicial settlement" unquestionably means liquidation and distribution of the estate without judicial proceeding. In other words, even in cases of testate succession, the heirs and legatees, when they are all of age or are represented by their judicial guardians, and there are no debts to be paid, are allowed by section 1 of Rule 74 of the Rules of Court to liquidate and distribute among themselves the estate left by the decedent and need not go to court even for the probate of the will. Unless legal terms mean nothing, this is clearly what it meant in said provision by the words "extrajudicial settlement" and by the clause " . . . the parties may, without securing letters of administration, divide the estate among themselves as they see fit" . . . . When judicial administration is made unnecessary by the provision, the inevitable implication is that the probate of the will is also unnecessary, the probate having no other object than administration for purposes of distribution according to the provisions of the will. That is why section 4 of rule 78 provides: ESTATE, HOW ADMINISTERED. When a will is thus allowed, the court shall grant letters testamentary, or letters of administration with the will annexed, such letters testamentary or of administration shall extend to all the estate of the testator in the Philippines. Such estate, after the payment of just debts and expenses of administration, shall be disposed of according to such will, so far as such will may operate upon it; and the residue, if any, shall be disposed of as is provided by law in cases of estates in the Philippines belonging to persons who are inhabitants of another
Succession Cases Set 7 state or country.
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If judicial administration and distribution is made unnecessary by section 1 of Rule 74, then, I repeat, the probate of the will being purposeless, becomes unnecessary. If the parties have already divided the estate in accordance with the will, the probate of the will is a useless ceremony. If they have divided the estate in a different manner, the probate of the will is worse than useless; it is ridiculous. The following words of this Court in a previous case may well be here reiterated: These sections provide for the voluntary division of the whole property of the decedent without proceedings in court. The provisions which they contain are extremely important. The wisdom which underlies them is apparent. It is the undisputed policy of every people which maintains the principle of private ownership of property that he who owns a thing shall not be deprived of its possession or use except for the most urgent and imperative reasons and then only so long as is necessary to make the rights which underlie those reasons effective. It is a principle of universal acceptance which declares that one has the instant right to occupy and use that which he owns, and it is only in the presence of reasons of the strongest and most urgent nature that the principle is prevented from accomplishing the purpose which underlies it. The force which gave birth to this stern and imperious principle is the same force which destroyed the feudal despotism and created the democracy of private owners. These provisions should, therefore, be given the most liberal construction so that the intent of the framers may be fully carried out. They should not be straitened or narrowed but should rather be given that wideness and fullness of application without which they cannot produce their most beneficial effects. . . . The purpose which underlies them, as we have already intimated, is to put into one's hands the property which belongs to him not only at the earliest possible moment but also with the least possible expense. By permitting the partition and division without proceedings in court no time is lost and substantially all expense and waste are saved. This is as it should be. The State fails wretchedly in its duly to its citizens if the machinery furnished by it for the division and distribution of the property of a decedent is so cumbersome, unwieldy and expensive that a considerable portion of the estate is absorbed in the process of such division. . . . (McMicking vs. Sy Conbieng, 21 Phil., 211; 219-220). Indeed, there can be no valid reason why the probate of a will may not be dispensed with by agreement of all the parties interested and the estate left by the decedent settled extrajudicially among all the heirs and legatees, as is now provided in section 1 of Rule 74. It is well recognized that the allowance of a will gives conclusiveness merely to its provisions which are governed by the substantive law regarding descent and distribution. If so, why cannot all the parties interested agree, without going to court, that the will of the decedent is in form valid (this being the only point to be litigated in a probate proceeding), and that they will divide the inheritance in the manner acceptable to them? The procedure would not be against public policy or the law placing in the hands of the courts the probate of wills, because what the courts are enjoined to do for the benefit of the parties, the latter have already done. As long as the extrajudicial partition of the estate does not affect the rights of third parties and is not rendered invalid by any provision of the substantive law, no possible objection can be
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raised thereto. On practical considerations, it would be useless to force the parties, at their expense, to go thru the formality of probating a will and dividing the estate in accordance therewith, because as soon as the routine is over, they are of course free to make such transfers to one another as will be necessary to effect a partition which they would have made if they were allowed to settle the estate extrajudicially. It is true that there are provisions in the Rules of Court compelling the delivery of a will to the competent court and punishing omissions to do so, but said provisions are calculated to protect the interests of the persons entitled to share in the inheritance. The latter may waive such benefit. This waiver cannot be said to be withdrawal or diminution of the jurisdiction of the court, since it only implies a desire of the parties not to litigate. The fear that "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", is wisely provided against in the requirement of the Rule that all the parties interested and all the beneficiaries under the will should be parties to the extrajudicial settlement. The participation of all the interested parties excludes the probability of fraud or collusion and, even in that eventuality, the aggrieved beneficiaries are not without adequate remedy for the voidance of the partition under the Civil Code. And this is in accordance with the weight of authority in this and other jurisdictions. In Leao vs. Leao (25 Phil., 180), all the heirs and legatees have made an extrajudicial partition of the estate left by the decedent and then filed the will in court which was probated. Nine years of costly probate proceedings have followed after which the extrajudicial partition was made known to court. such extrajudicial partition was objected to by one party upon the ground that it was not in conformity with the provisions of the will. But the trial Court held: Naturally the partition made by the heirs voluntarily and spontaneously must produce and has produced a legal status, which cannot be annulled merely for the caprice of one person. and it cannot be said that, because the partition was not made in accordance with the will, if such be the case, the latter has to be annulled, for by voluntarily and spontaneously concurring therein they implicitly renounced the effects of said will, of which they were aware. (See p. 183). On appeal, this Court affirmed the ruling with the following pronouncement: 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 his conclusion. If the heirs and legatees had voluntarily divided the estate among themselves, then their division is conclusive, unless and until it is shown that there were debts existing against the estate which had not been paid. No claim is made whatever by third parties nor objections of any character are made by others than the heirs against said partition. We see no reason why their heirs and legatees should not be bound by their voluntary acts. (Page 183184). This case furnishes precisely a valuable experience as to the practical wisdom underlying the procedure established in section 1 of Rule 74. After the will was probated and after nine years of costly administration proceedings, nothing absolutely nothing was accomplished by the court except to make the belated pronouncement that the extrajudicial partition made by the parties prior to the institution of the proceedings was proper and binding upon them. Thus,
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the whole proceedings for nine years have proved no more than a futile chronicle of wasted time and money for the parties and the court. This disgraceful experience could not and did not pass unnoticed to the members of this Court who drafted the new Rules of Court. The solemn admonition made by this Court in a previous case (McMicking vs. Sy Conbieng, supra) when it said that "the State fails wretchedly in its duly to its citizens if the machinery furnished by it for the division and distribution of the property of a decedent is so cumbersome, unwieldy and expensive that a considerable portion of the estate is absorbed in the process of such division", rang with re-echoing insistence and was heeded to when the new Rules of Court was drafted and promulgated. The fundamental policy pervading the whole system of procedure adopted in said Rules is speed, economy an justice. Thus, features of procedure were done away with when, without them, the same purpose may be achieved. The result is brevity and simplicity of procedure with such guarantees as the necessary to assure due process. And to remedy such evil as is disclosed in the Leao case, a completely extrajudicial settlement is allowed even in testate succession with the probate of the will dispensed with, when the heirs and legatees who are all of age or represented by their judicial guardians, so agree, and there are not debts to be paid. Thus, the scope of section 596 of Act No. 190 was amplified and with it the ruling of this Court in Riosa vs. Rocha (48 Phil., 737). The procedure is in consonance with the almost unanimous weight of authority in other jurisdictions: The complainant, to which a demurrer was sustained, shows that all the persons interested in a decedent's estate, as widow, heirs, distributees, legatees, or devisees, including the person appointed executrix by the will, and the husbands of femes covert, (all being adults), by agreement divided among themselves all the property of the estate according to the direction of the will, paid off all debts against the estate, and delivered the note described to the plaintiff, as a part of her share; and all this was done without probate of the will, or administration of the estate. The effect of such a division was to invest the plaintiff with an equitable title to the note. In the absence of the will, the decisions of this court, heretofore made, would meet every argument in favor of an opposite conclusion. (Anderson vs. Anderson, 37 Ala., 683; Marshall vs.Crow, 29 Ala., 278; Vanderveer vs. Alston, 16 Ala., 494; Miller vs. Eatman, 11 feature of this case, take it out of the principle of those decisions? We can perceive no sufficient reason why it should. All the parties interested, or to be affected, may as well by agreement divide property, where there is a will, without employing the agency of courts, as in case of intestacy. Parties, competent to act, ought to do that, without the agency of courts, which the courts would ultimately accomplish. To deny them the privilege of so doing, would manifest a judicial abhorrence of harmony. By the probate of the will, the claims of heirs and distributees, and of the widow, would have been subordinated to the directions of the will. this has been accomplished by the agreement. There being no debts, the executrix would have had no other duty to perform, than to divide the property according to the will. This, too, has been done by agreement of competent parties. All the ends and objects of judicial proceedings have been accomplished, by agreement of the parties; and that agreement must be effective. (Carter vs. Owens, 41 Ala., 215; 216-217). The absence of sound objection on this ground to a contract having for its sole purpose the disposition of property in a manner different from that proposed by a a testator, even where the contract contemplates the rejection of the will when offered for probate
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or its setting aside when admitted to probate, when it is entirely free from fraud, and is made by all the parties in interest, may be freely conceded. As has often been substantially said, the public generally has not interest in the matter of the probate of a will; and only those interested in the estate under the will or otherwise are affected by such a contract. If they all agree upon some course to be followed, and their contract is otherwise free from contemplated fraud or violation of any law, no one else has any such interest as warrants complaint. Such was the character of contract involved in Spangenberg vs. Spangenberg (App.), 126 Pac., 379, especially relied on by plaintiff here, where the contract purported to affect only such property of the deceased as should in fact be received by the parties thereto. In Estate of Garcelon, 104 Cal, 570; 38 Pac., 414; 32 L. R. A.,. 595; 43 Am. St., Rep., 134, another case much relied on by plaintiff, a contract by an heir to refrain from contesting a will was involved. It was said that the contract was one that concerned the parties alone, and one that did not appear to be against public policy. (Gugolz vs. Gehrkens, 130 Pac, Rep., 8, 10; 164 Cal., 596). The question of public policy is introduced. The disposition of one's property after death is controlled by statute. One of the next of kin has no vested interest in such property. In cases of intestacy, a next of kin has such interest as the statute declares. In case there is a will, he has an interest which gives him a standing and right to contest the will. This right is his alone; in it the public has no interest; he may refrain from exercising it, or he may dispose of it as he wishes, by release or assignment or settlement, and the law of public policy is not offended. ( In re cook's Will, 217 N. Y. S., 176, 180-181). Agreement. "It has been definitely decided by the courts of this state, and of many other states, that the beneficiaries under a will have a right to agree among themselves upon any distribution they see proper of the property bequeathed to them. . . . That holding is based upon the proposition that the property is theirs. No one else is interested in its disposition, and they may, with propriety, make any distribution of it that suits them, so long as they do not invade the rights of other parties or infringe some rule of public policy'. (Fore vs. McFadden, 276 N. W., 327; 329). The first assignment of error presented by appellants complains of the action of the court in sustaining exceptions to averments asking the enforcement of the agreement that the will should not be probated, and that the estate should be divided among the parties as they would be entitled as heirs at law of the deceased, the proponent of the will surrendering thereby his rights as principal legatee. This assignment must be sustained. It cannot be seen that the agreement is contrary to public policy. Parties may make any contract with reference to their property rights that is not illegal, may adjust by compromise their differences and disputes concerning the same and, as they bind themselves, so shall they be bound. It is difficult to understand why this cannot be effected by an agreement not to probate a will, or how it interferes with public policy. The power to litigate and to establish a right by appeal to the courts is as much the subject of contract as any other right in property. Such adjustments by contract are favored by the law and the courts, and are not deemed to be an unwarranted interference with the jurisdiction of the courts, or against public policy. On the contrary, public policy favors them. Appellants have cited a case in point, the case of Phillips v. Phillips, 8 Watts, 197, in
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which it is held competent for devisees and legatees to bind themselves by a written or parol agreement to destroy a will before probate, and that a party to the agreement would be estopped from claiming any interest under the will. The court says: "It cannot admit of doubt that before probate the parties in interest under a will would have the right to set aside a will, and such an act would be favored, when the object was to avert a family controversy". The agreement that the will should not be probated, and that the parties would take the property as heirs at law of the deceased, destroyed the legal effect of the will; and it could not thereafter have legal existence in conferring rights upon the legatees. (Stringfellow vs. Early, 40 SW., 871, 873-874; 15 Tex. Civ. App., 597). The contention that the complaint does not state a cause of action, because the contract sued on is against public policy, and therefore void, is made here for the first time. It is to the interest of the public generally that the right to make contract should not be unduly restricted, and no agreement will be pronounced void, as being against public policy, unless it clearly contravenes that which has been declared by statutory enactment or by judicial decisions to be public policy, or unless the agreement manifestly tends in some way to injure the public. Whether or not a contract in any given case is contrary to public policy is a question of law, to be determined from the circumstances of each particular case. Smith vs. Du Bose, 78 Ga., 413; 3 SE., 309316; 6 Am. St. Rep., 260; Weber vs. Shay, 56 Ohio St., 116; 46 NE., 377; 37 L.R.A., 230; 60 Am. St. Rep., 743; Pierce vs. Randolph, 12 Tex., 290; Print Numerical Registering Co. vs. Sampson, 19 L. R. Eq. Cas., 465. The contract in controversy is in effect but an agreement whereby the parties thereto, "because of their love and affection for one another" and "being desirous of avoiding litigation over the estate" of their father "in case of his death," agreed to ignore his will in the event that he made one, and then share his estate equally as if he had died intestate. In other words, the contract was but an agreement of heirs apparent not to contest the will of an ancestor. There is nothing to be fond in our code or statutory law prohibiting the making and enforcement of such a contract, and it has been held in this state that a contract, made after the death of the deceased, not to contest his will, is purely personal to the parties making it, that it is not against public policy, and that, when fairly made, it will be enforced, (Spangenberg vs. Spangenberg, 126 Pac. Rep., 379, 382; 19 Cal. App., 439). Probate Dispensed With. Probate of a will may be dispensed with by an agreement between the persons interested; or it may be dispensed with where the testator, before his death, conveyed to the devisees all the property which he had devised to them, or where the will makes no other disposition of the testator's property than the law would have done had he died interstate, and the rights sought to be established are admitted by all concerned. But where the language of the will expressly invokes the jurisdiction of the probate court the fact that no administration is necessary does not affect the power of the court to probate the will. (68 C. J., pp. 877-878). Agreement between Persons Interested: a. Requisites and Validity. (1) In General. It has been held that, since the nature of a probate proceeding is one in rem, the parties cannot submit a controversy arising therein to arbitration. The law, however, favors the settlement, in good faith, of will contests, by a so-called "family settlement", although it changes the mode
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of disposition of the estate ; and, therefore, subject to the limitation that a contestant cannot compromise anything beyond his own personal interest in the contest, persons, such as devisees, legatee, heirs, or next of kin, having interest in the will or estate, sufficient to entitle them to opposed probate or contest the will, may enter into an agreement which, in the absence of fraud or misrepresentation, is valid and binding on all the parties thereto, whereby they waive probate of the will and bind themselves to abide by its provisions, or whereby they agree that the will is not to be probated or is to be superseded or destroyed; or whereby any controversy relative to the probate or contest of the will is compromised or settled, and a contest is avoided, whether or not there were, in fact, valid grounds for the contest. Such an agreement, in order to be valid, must not exclude anyone entitled under the will, must be entered into by all the persons affected thereby, and all the parties thereto must be competent to make the agreement, and either they or their representative must fully execute it, and, under some statutes, it must be properly approved by the court." ([Emphasis supplied] 68 C. J., pp. 909-910). As to Probate. The operation and effect of the agreement may not to supersede the provisions of the will, but to carry out its provisions without a probate, and under such agreement the parties are precluded from denying the probate, or insisting on the invalidating of the will for want of probate. So, also, a person who agrees not to contest the will is precluded from opposing probate; or the probate of a will may be dispensed with, and the persons interested in the estate under the will given at least an equitable interest in the property, where they, being under no disability, divide the estate, pursuant to an agreement among themselves. Where the effect of the agreement of all interested parties is to repudiate or renounce the will, it will not be probated, especially where the agreement expressly so provides ; but it has been held that, where the executor, defending a torn will, agrees, for a consideration, not to probate it, the court should not refuse probate without notifying other beneficiaries and requiring testimony as to the tearing of the will by the testator. Probate, however, is not prevented by an agreement executed by a part only of the beneficiaries, and the parties to such agreement are not prevented thereby from taking under the will which is probated by another interested person. ([Emphasis supplied] 68 C. J., pp. 914-915). Thus, where the parties, being in doubt as to the instrument being construed as a will, and for the purpose of saving a family controversy and for the purpose of dividing the estate, enter into a compromise and settlement agreement, under the terms of which the entire estate is to be, and has in part been, divided, and agree that the instrument shall not be offered for probate, it is sufficient to prevent a probate. (Brown vs. Burk, 26 NW [2d ed.], 415. Validity of Agreements of Dispense with Probate or to Modify or Set Aside Will . Though in some jurisdictions an agreement to dispense with the probate of a will has been declared to be against public policy and void, in a majority of the decisions on the point it has been held that all the persons interested in decedent's estate may by agreement divide the estate among themselves, without probating such decedent's will or administering the estate, and the validity of a contract having for its sole purpose the disposition of property in a manner different from that proposed by a testator, even where the contract contemplates the rejection of the will when offered for probate or its setting aside when admitted to probate, when it is entirely free from fraud, and is made
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by all the parties in interest, would seem to be freely concede. Thus it has been held that all the parties in interest may agree to eliminate from a will a clause providing for survivorship among them. But an agreement to resist the probate of a will and procure it to be set aside so as to curt off the interest of one who is not a party to such agreement is against public policy. Nor does the right of all the parties in interest to set aside or disregard a will extend to the case of an active trust, for a definite term, created by a testator as he deems proper for the protection of his beneficiaries. A contract between the next of kin of a decedent, that they will each have a certain portion of the estate, does not amount to an agreement to divide the estate without probating the will. (28 R.C.L., pp. 357-358). The minority decision pointed out in the last quotation from the Ruling Case Law (Vol. 28, pp. 357-358) is from the Supreme Court of only one State that of Wisconsin, in re Will of Dardis (135 Wis., 457; 115 NW., 332). All the other States held the contrary doctrine that is now embodied in section 1 of Rule 74. Commenting upon the Wisconsin rule, the Editor of the L.R.A. says the following: No case has been found other than Re Dardis wherein any court passed upon the validity of a stipulation to secure the denial to probate of a will theretofore offered for probate, on the ground that the testator was mentally incompetent to make a will at the time of its execution. The decision of the court is based upon the doctrine therein enunciated, that proceedings to probate a will are proceedings in rem, which public interest demands should be pursued to a final adjudication, regardless of the wishes of the interested parties. In this connection and with reference to this broader question, it is of interest to note that courts of other jurisdictions, although generally recognizing that proceedings to probate a will are proceedings in rem, hold that the proceeding is inter partes to the extent that all the parties in interest may control the probate proceedings, even to the extent of doing away with the probate. (23 L.R.A. [N.S.], p.783). For the sake of fixity in judicial policy, this Court in the exercise of its constitutional powers, has solemnly given a form of a rule section 1, Rule 74 to what was merely the consensus of judicial opinion. We cannot now repudiate the procedure outlined in said provision unless we amend it by another rule. The majority, however, expresses fear that abuses may easily be committed under the Rules. Such fears have always been the bugbear set up against all task of procedural reforms. To be sure, there has never been any provision of law that is not liable to abuses. If by mere possibility of abuse we are to disregard clear provisions of a procedural law, the result would not only the abrogation of all laws but also the abolition of all courts. When a procedural law is calculated to remedy an evil under a specific situation therein contemplated, it must be deemed good even if other situations may be simulated or falsified and placed within its purview. And when that law is duly enacted, it is no concern of the courts to pass upon its wisdom, their duty being to apply its provisions in a manner which shall not defeat the intention underlying it. Laws are promulgated to be obeyed and when they are abused there are the courts to check up the abuse. Courts must deal with the specific circumstances of each case and construe the provisions in such a manner as to make it impregnable if possible to further abuses. This is constructive, not destructive, jurisprudence. This explains why laws are more often worded so broadly as to lay merely general principles a skeleton the
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flesh to be supplied with judicial decisions. Judicial statemanship requires that courts in deciding judicial controversies should be careful not to advance opinions which are not necessary to a proper disposition of the case. Judicial experience has shown that such advanced opinions may not infrequently place the court in an embarrassing position when a proper case with the proper factual environment is properly presented with all its angles before the court. Jurisprudence must be carefully progressive and not impetuously aggressive. for instance, the majority, impressed by the awful circumstances of the present case, has found it dangerous to hold that the probate of the will may be dispensed with. While this conclusion is constructive under the peculiar facts of the case, to generalize it is to make destructive. If a proper case is presented to the court wherein all the heirs and legatees who are all of age have agreed to dispense with the probate of a will and have actually made an extrajudicial partition, and if it appears further that each of the recipients is in peaceful enjoyment of his share in the estate, I am sure that the majority, with the practical wisdom they have shown in other cases, would not dare disturb the peace enjoyed by such heirs and legatees and compel them to go into court and litigate. The majority, without the necessity of holding whether the probate of a will may or may not be dispensed with under Rule 74, section 1, could have decided this case by stating that said provision is not applicable, its requirements not being present. And I would be wholly agreeable to this conclusion because the beneficiaries under the will do not appear to have made an extrajudicial settlement of the estate left by the deceased Victorino L. Guevara, nor the action brought by the natural daughter, Rosario Guevara, is one for partition against all such beneficiaries founded either on an extrajudicial settlement or on the provisions of the will as accepted by all parties to be valid and binding. Upon the contrary, Rosario Guevara appears to be wishing to take advantage of the will in so far as it is favorable to her, and repudiate it in so far as it is favorable to others. Apparently, Rosario Guevara was in possession of the will and the other heirs and legatees were not aware of its contents. The situation not being the one contemplated by section 1 of Rule 74, plaintiff may not invoke its provisions. 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
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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 aos 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
41
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. Bengzon, C.J., Bautista, Angelo, Concepcion, Barrera, Paredes, Dizon Regala, Makalintal, Bengzon, J.P., and Zaldivar, JJ., concur. G.R. No. L-29300 June 21, 1978 PEDRO D. H. GALLANOSA, CORAZON GRECIA-GALLONOSA and ADOLFO FORTAJADA, the deceased Pedro Gallanosa being substituted by his legal heirs, namely his above-named widow and his children, ISIDRO GALLANOSA and LEDY GALLANOSA, and grandchildren named IMELDA TECLA GALLANOSA and ROSARIO BRIGIDA GALLANOSA, children of the late SIKATUNA GALLANOSA, son of Pedro D.H. GALLONOSA, petitioners, vs.
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HON. UBALDO Y. ARCANGEL, Judge of Branch I of the Court of First Instance of Sorsogon and FLORENTINO G. HITOSIS, CASIANO G. HITOSIS, TEOTIMO G. HITOSIS, VICTORIO G. HITOSIS, EMILIA G. HITOSIS VDA. DE CRUZ, JOAQUIN R. HITOSIS VDA. DE CRUZ, JOAQUIN R. HITOSIS, FLORENTINO R. HITOSIS, VIRGINIA R. MITOSIS, DEBORAH R. HITOSIS, EDILBERTO R. HITOSIS, LEONOR R. HITOSIS, NORMA R. HITOSIS-VILLANUEVA, LEONCIO R. HITOSIS, minors ANGEL R. HITOSIS and RODOLFO R. HITOSIS, represented by their legal guardian and mother LOURDES RELUCIO VDA. DE HITOSIS, PETRONA HITOSIS-BALBIDO, MODESTO HITOSISGACILO, CLETO HITOSIS, AGUSTIN HITOSIS-FORTES, TOMASA HITOSIS-BANARES VDA. DE BORRAS, CONRADA HITOSIS-BANARES FRANCHE, RESTITUTO HITOSISBANARES, DAMIAN HITOSIS-BANARES, FIDEL HITOSIS-BANARES, SUSANA HITOSISBANARES RODRIGUEZ, JOSE HITOSIS, LOLITA HITOSIS-BANEGA, minors MILAGROS HITOSIS-BANEGA, ALICIA HITOSIS-BANEGA AND ELISA HITOSIS-BANEGA, represented by their legal guardian and father ERNESTO BANEGA, FELICITAS HITOSIS-PENAFLOR, GENOVEVA HITOSIS-ADRIATICO, MANUEL HITOSIS, PEDRO HITOSIS, LIBRATA HITOSIS-BALMES, JUANITA HITOSIS-GABITO VDA. DE GABAS, MAURA HITOSIS-GABITO VDA. DE GANOLA and LEONA HITOSIS-GABITO GAMBA, respondents. Haile Frivaldo for petitioners.Joaquin R Mitosis for private respondents. AQUINO, J.: In this special civil action of certiorari, filed on July 29, 1968, the petitioners seek to annul the orders of respondent Judge dated May 3 trial June 17, 1968, wherein he reconsidered his order of January 10, 1968, dismissing, on the ground of prescription, the complaint in Civil Case No. 2233 of the Court of First Instance of Sorsogon. The case involves the sixty-one parcels of land in Sorsogon left by Florentino Hitosis, with an estimated value of P50,000, trial claims for damages exceeding one million pesos. The undisputed facts are as follows: 1. Florentino Hitosis executed a will in the Bicol dialect on June 19, 1938 when he was eighty years old. He died on May 26, 1939 at Irosin, Sorsogon. A childless widower, he as survived by his brother, Leon Hitosis. His other brothers, named Juan, Tito (Juancito), Leoncio (Aloncio) trial Apolonio and only sister, Teodora, were all dead. 2. On June 24, 1939 a petition for the probate of his will was filed in the Court of First Instance of Sorsogon (Special Proceeding No. 3171). The notice of hearing was duly published. In that will, Florentino bequeathed his one-half share in the conjugal estate to his second wife, Tecla Dollentas, and, should Tecla predecease him, as was the case, his one-half share would be assigned to the spouses Pedro Gallanosa and Corazon Grecia, the reason being that Pedro, Tecla's son by her first marriage, grew up under the care of Florentino; he had treated Pedro as his foster child, and Pedro has rendered services to Florentino and Tecla. Florentino likewise bequeathed his 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
43
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 dueo trial that Gallanosa entered those lands in 1951 trial asserted ownership over the lands. They prayed that they be declared the owners of the lands trial that they be restored to the possession thereof. They also claimed damages (Civil Case No. 696). 6. Gallanosa moved to dismiss the above complaint for lack of cause of action trial on the ground of bar by the prior judgment in the probate proceeding. Judge Anatolio C. Maalac dismiss the complaint on the ground of res judicata in his order of August 14, 1952 wherein he said: It also appears that the plaintiffs and/or their predecessors-in-interest had intervened in the testate proceedings in Civil Case No. 3171 of this Court forthe 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
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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
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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, L19872, 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
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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 Maalac in Civil Case No. 696, a judgment in personam was an adjudication on the merits (Sec. 4, Rule 30, old Rules of Court). It constitutes a bar by former judgment under the aforequoted section 49(b) (Anticamara vs. Ong, L-29689. April 14, 1978). The plaintiffs or private respondents did not even bother to ask for the annulment of the testamentary proceeding trial the proceeding in Civil Case No. 696. Obviously, they realized that the final adjudications in those cases have the binding force of res judicata and that there is no ground, nor is it timely, to ask for the nullification of the final orders trial judgments in those two cases. It is a fundamental concept in the organization of every jural system, a principle of public policy, that, at the risk of occasional errors, judgments of courts should become final at some definite date fixed by law. Interest rei publicae ut finis sit litum . "The very object for which the courts were constituted was to put an end to controversies." (Dy Cay vs. Crossfield and O'Brien, 38 Phil. 521: Pealosa vs. Tuason, 22 Phil, 303; De la Cerna vs. Potot, supra). After the period for seeking relief from a final order or judgment under Rule 38 of the Rules of
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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. Fernando (Chairman), Barredo, Antonio, and Santos, JJ., concur. Concepcion, Jr., J., is on leave. G.R. No. 108581 December 8, 1999 LOURDES L. DOROTHEO, petitioner, vs. COURT OF APPEALS, NILDA D. QUINTANA, for Herself and as Attorney-in-Fact of VICENTEDOROTHEO and JOSE DOROTHEO, respondents. YNARES-SANTIAGO, J.: May a last will and testament admitted to probate but declared intrinsically void in an order that has become final and executory still be given effect? This is the issue that arose from the following antecedents: Private respondents were the legitimate children of Alejandro Dorotheo and Aniceta Reyes. The latter died in 1969 without her estate being settled. Alejandro died thereafter. Sometime in 1977, after Alejandro's death, petitioner, who claims to have taken care of Alejandro before he died, filed a special proceeding for the probate of the latter's last will and testament. In 1981, the court issued an order admitting Alejandro's will to probate. Private respondents did not appeal from said order. In 1983, they filed a "Motion To Declare The Will Intrinsically Void." The trial court granted the motion and issued an order, the dispositive portion of which reads: WHEREFORE, in view of the foregoing, Order is hereby issued declaring Lourdes Legaspi not the wife of the late Alejandro Dorotheo, the provisions of the last will and testament of Alejandro Dorotheo as intrinsically void, and declaring the oppositors Vicente Dorotheo, Jose Dorotheo and Nilda Dorotheo Quintana as the only heirs of the late spouses Alejandro Dorotheo and Aniceta Reyes, whose respective estates shall be liquidated and distributed according to the laws on intestacy upon payment of estate and other taxes due to the
Succession Cases Set 7 government.1
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Petitioner moved for reconsideration arguing that she is entitled to some compensation since she took care of Alejandro prior to his death although she admitted that they were not married to each other. Upon denial of her motion for reconsideration, petitioner appealed to the Court of Appeals, but the same was dismissed for failure to file appellant's brief within the extended period granted. 2 This dismissal became final and executory on February 3, 1989 and a corresponding entry of judgment was forthwith issued by the Court of Appeals on May 16, 1989. A writ of execution was issued by the lower court to implement the final and executory Order. Consequently, private respondents filed several motions including a motion to compel petitioner to surrender to them the Transfer Certificates of Titles (TCT) covering the properties of the late Alejandro. When petitioner refused to surrender the TCT's, private respondents filed a motion for cancellation of said titles and for issuance of new titles in their names. Petitioner opposed the motion. An Order was issued on November 29, 1990 by Judge Zain B. Angas setting aside the final and executory Order dated January 30, 1986, as well as the Order directing the issuance of the writ of execution, on the ground that the order was merely "interlocutory", hence not final in character. The court added that the dispositive portion of the said Order even directs the distribution of the estate of the deceased spouses. Private respondents filed a motion for reconsideration which was denied in an Order dated February 1, 1991. Thus, private respondents filed a petition before the Court of Appeals, which nullified the two assailed Orders dated November 29, 1990 and February 1, 1991. Aggrieved, petitioner instituted a petition for review arguing that the case filed by private respondents before the Court of Appeals was a petition under Rule 65 on the ground of grave abuse of discretion or lack of jurisdiction. Petitioner contends that in issuing the two assailed orders, Judge Angas cannot be said to have no jurisdiction because he was particularly designated to hear the case. Petitioner likewise assails the Order of the Court of Appeals upholding the validity of the January 30, 1986 Order which declared the intrinsic invalidity of Alejandro's will that was earlier admitted to probate. Petitioner also filed a motion to reinstate her as executrix of the estate of the late Alejandro and to maintain thestatus quo or lease of the premises thereon to third parties. 3 Private respondents opposed the motion on the ground that petitioner has no interest in the estate since she is not the lawful wife of the late
Succession Cases Set 7 Alejandro.
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The petition is without merit. A final and executory decision or order can no longer be disturbed or reopened no matter how erroneous it may be. In setting aside the January 30, 1986 Order that has attained finality, the trial court in effect nullified the entry of judgment made by the Court of Appeals. It is well settled that a lower court cannot reverse or set aside decisions or orders of a superior court, for to do so would be to negate the hierarchy of courts and nullify the essence of review. It has been ruled that a final judgment on probated will, albeit erroneous, is binding on the whole world. 4 It has been consistently held that if no appeal is taken in due time from a judgment or order of the trial court, the same attains finality by mere lapse of time. Thus, the order allowing the will became final and the question determined by the court in such order can no longer be raised anew, either in the same proceedings or in a different motion. The matters of due execution of the will and the capacity of the testator acquired the character of res judicata and cannot again be brought into question, all juridical questions in connection therewith being for once and forever closed. 5 Such final order makes the will conclusive against the whole world as to its extrinsic validity and due execution. 6 It should be noted that probate proceedings deals generally with the extrinsic validity of the will sought to be probated, 7 particularly on three aspects: n whether the will submitted is indeed, the decedent's last will and testament; n compliance with the prescribed formalities for the execution of wills; n the testamentary capacity of the testator; 8 n and the due execution of the last will and testament. 9 Under the Civil Code, due execution includes a determination of whether the testator was of sound and disposing mind at the time of its execution, that he had freely executed the will and was not acting under duress, fraud, menace or undue influence and that the will is genuine and not a forgery, 10 that he was of the proper testamentary age and that he is a person not expressly prohibited by law from making a will. 11 The intrinsic validity is another matter and questions regarding the same may still be raised even after the will has been authenticated. 12 Thus, it does not necessarily follow that an extrinsically valid last will and testament is always intrinsically valid. Even if the will was validly executed, if the testator provides for dispositions that deprives or impairs the lawful heirs of their legitime or rightful inheritance according to the laws on succession, 13 the unlawful provisions/dispositions thereof cannot be given effect. This is specially so when the courts had already determined in a final and executory decision that the will is intrinsically void. Such determination having attained that character of finality is binding on this Court which will no longer be disturbed. Not that this Court finds the will to be intrinsically valid, but that a final and executory decision of which the party had the opportunity to challenge before the higher tribunals must stand and should no longer be reevaluated. Failure to avail of the remedies provided by law constitutes waiver. And if the party does not avail of other remedies despite its belief that it was aggrieved by a decision or court action, then it is deemed to have fully
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agreed and is satisfied with the decision or order. As early as 1918, it has been declared that public policy and sound practice demand that, at the risk of occasional errors, judgments of courts must at some point of time fixed by law 14 become final otherwise there will be no end to litigation. Interes rei publicae ut finis sit litium the very object of which the courts were constituted was to put an end to controversies. 15 To fulfill this purpose and to do so speedily, certain time limits, more or less arbitrary, have to be set up to spur on the slothful. 16 The only instance where a party interested in a probate proceeding may have a final liquidation set aside is when he is left out by reason of circumstances beyond his control or through mistake or inadvertence not imputable to negligence, 17 which circumstances do not concur herein. Petitioner was privy to the suit calling for the declaration of the intrinsic invalidity of the will, as she precisely appealed from an unfavorable order therefrom. Although the final and executory Order of January 30, 1986 wherein private respondents were declared as the only heirs do not bind those who are not parties thereto such as the alleged illegitimate son of the testator, the same constitutes res judicata with respect to those who were parties to the probate proceedings. Petitioner cannot again raise those matters anew for relitigation otherwise that would amount to forum-shopping. It should be remembered that forum shopping also occurs when the same issue had already been resolved adversely by some other court. 18 It is clear from the executory order that the estates of Alejandro and his spouse should be distributed according to the laws of intestate succession. Petitioner posits that the January 30, 1986 Order is merely interlocutory, hence it can still be set aside by the trial court. In support thereof, petitioner argues that "an order merely declaring who are heirs and the shares to which set of heirs is entitled cannot be the basis of execution to require delivery of shares from one person to another particularly when no project of partition has been filed." 19 The trial court declared in the January 30, 1986 Order that petitioner is not the legal wife of Alejandro, whose only heirs are his three legitimate children (petitioners herein), and at the same time it nullified the will. But it should be noted that in the same Order, the trial court also said that the estate of the late spouses be distributed according to the laws of intestacy. Accordingly, it has no option but to implement that order of intestate distribution and not to reopen and again re-examine the intrinsic provisions of the same will. It can be clearly inferred from Article 960 of the Civil Code, on the law of successional rights that testacy is preferred to intestacy. 20 But before there could be testate distribution, the will must pass the scrutinizing test and safeguards provided by law considering that the deceased testator is no longer available to prove the voluntariness of his actions, aside from the fact that the transfer of the estate is usually onerous in nature and that no one is presumed to give Nemo praesumitur donare. 21 No intestate distribution of the estate can be done until and unless the will had failed to pass both its extrinsic and intrinsic validity. If the will is extrinsically void, the rules of intestacy apply regardless of the intrinsic validity thereof. If it is extrinsically valid, the next test is to determine its intrinsic validity that is whether the provisions of the will are valid according to the laws of succession. In this case, the court had ruled that the will of Alejandro was extrinsically valid but the intrinsic provisions thereof were void. Thus, the rules of intestacy apply as correctly held by the trial court. Furthermore, Alejandro's disposition in his will of the alleged share in the conjugal properties of his late spouse, whom he described as his "only beloved wife", is not a valid reason to reverse a final and executory order. Testamentary dispositions of properties not belonging
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exclusively to the testator or properties which are part of the conjugal regime cannot be given effect. Matters with respect to who owns the properties that were disposed of by Alejandro in the void will may still be properly ventilated and determined in the intestate proceedings for the settlement of his and that of his late spouse's estate. Petitioner's motion for appointment as administratrix is rendered moot considering that she was not married to the late Alejandro and, therefore, is not an heir. WHEREFORE, the petition is DENIED and the decision appealed from is AFFIRMED.SO ORDERED.Davide, Jr., C.J., Puno, Kapunan and Pardo, JJ., concur. 13 Civil Code, Article 886. "Legitime is that part of the testators property which he cannot dispose of because the law has reserved it for certain heirs who are, therefore, called compulsory heirs." and Article 904 reads "The testator cannot deprive his compulsory heirs of their legitime, except in cases expressly specified by law. Neither can he impose upon the same any burden, encumbrance, condition, or substitution of any kind whatsoever." (emphasis supplied). 20 Art. 960, Civil Code provides in part: "Legal or intestate succession takes place: (1) If a person dies without a will, or with a void will, or one which has subsequently lost its validity; (2) When the will does not institute an heir to, or dispose of all property belonging to the testator. In such case, legal succession shall take place only with respect to the property of which the testator has not disposed;

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Succession Cases Set 7 Codoy v Calugay Gago v Mamuyac Molo v Molo Guevara v Guevara De la Cerna v Potot Gallanosa v Arcangel

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