GUEVARA v GUEVARA 74 Phil 479OZAETA; December 29, 1943 FACTS -In 1931, Victorino L.

Guevara executed a will with all the formalities of the law,wherein he made bequests to his legitimate son, natural daughter and stepchildrenand wife of 2 nd marriage.-On July 12, 1933, Victorino L. Guevara executed a deed of sale in favor of Ernesto M.Guevara conveying to him the southern half of a large parcel of land in considerationof the sum of P1 and other valuable considerations.On September 27, 1933 a finaldecree of registration was issued in favor of Ernesto M. Guevara over the whole parcelof land described in the deed of sale above referred to. The registration proceedinghad been commenced 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 cooppositors alsowithdrew their opposition, thereby facilitating the issuance of the title in the name of Ernesto M. Guevara alone.On September 27, 1933, Victorino L. Guevara died. His last will and testament,however, was never presented to the court for probate, nor has any administrationproceeding ever been instituted for the settlement of his estate. Whether the variouslegatees mentioned in the will have received their respective legacies or have evenbeen given due notice of the execution of said will and of the dispositions thereinmade in their favor, does not affirmatively appear from the record of this case. Eversince the death of Victorino L. Guevara, his only legitimate son Ernesto M. Guevaraappears to have possessed the land adjudicated to him in the registration proceedingand to have disposed of various portions thereof for the purpose of paying the debtsleft by his father.-Rosario Guevara, who had her father's last will and testament in her custody, didnothing judicially to invoke the testamentary dispositions made therein in her favor,whereby the testator acknowledged her as his natural daughter and, aside fromcertain legacies and bequests, devised to her a portion of 21.6171 hectares of thelarge parcel of land described in the will. But a little over four years after the testator'sdemise, she commenced the present action against Ernesto M. Guevara alone for thepurpose hereinbefore indicated; and it was only during the trial of this case that shepresented the will to the court, not for the purpose of having it probated but only toprove that the deceased Victorino L. Guevara had acknowledged her as his naturald a u g h t e r . U p o n t h a t p r o o f o f a c k n o w l e d g m e n t s h e claimed her s h a r e o f t h e inheritance from him, but on the theory or assumption that he died intestate, becausethe will had not been probated, for which reason, she asserted, the betterment thereinmade by the testator in favor of his legitimate son Ernesto M. Guevara should bedisregarded. Both the trial court and the Court of Appeals sustained that theory. ISSUE WON the procedure adopted by the Rosario Guevara is sanctioned by law HELD No. We cannot sanction the procedure adopted by the respondent Rosario Guevara, itbeing in violation of procedural law and an attempt to circumvent and disregard thelast 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 followingpertinent provisions:"Sec. 625.Allowance Necessary, and Conclusive as to Execution. No will shall passeither the real or personal estate, unless it is proved and allowed in the Court of FirstInstance, or by appeal to the Supreme Court; and the allowance by the court of a willof 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 intothe 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 asexecutor in a will, shall within thirty days after he knows of the death of the testator,or within thirty days after he knows that he is named executor, if he obtained suchknowledge after knowing of the death of the testator, present such will to the courtwhich has jurisdiction, unless the will has been otherwise returned to said court, andshall, within such period, signify to the court his acceptance of the trust, or makeknown in writing his refusal to accept it."Sec. 628.Penalty. A person who neglects any of the duties required in the twopreceding sections, unless he gives a satisfactory excuse to the court, shall be subjectto a fine not exceeding one thousand dollars."Sec. 629.Person Retaining Will may be Committed. If a person having custody of awill after the death of the testator neglects without reasonable cause to deliver thesame to the court having jurisdiction, after notice by the court so to do, he may becommitted to the prison of the province by a warrant issued by the court, and therekept in close confinement until he delivers the will."The proceeding for the probate of a will is one in rem, with notice by publication tothe whole world and with personal notice to each of the known heirs, legatees, andd e v i s e e s o f t h e t e s t a t o r . A l t h o u g h n o t c o n t e s t e d ( s e c t i o n 5 , R u l e 7 7 ) , t h e d u e 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 influenceor fraud, must be proved to the satisfaction of the court, and only then may the will belegalized 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 all owance must be recorded in theregister 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 awill to the court for probate is mandatory and its allowance by the court is essentialand indispensable to its efficacy. To assure and compel the probate of a will, the lawpunishes 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 committedto prison and kept there until he delivers the will.-We hold that if the decedent left a will and no debts and the heirs and legatees desireto make an extrajudicial partition of the estate, they must first present that will to thecourt for probate and divide the estate in accordance with the will. They may notdisregard the provisions of the will unless those provisions are contrary to law. Neithermay they do away with the presentation of the will to the court for probate, becausesuch suppression of the will is contrary to law and public policy. The law enjoins theprobate of the will and public policy requires it, because unless the will is probatedand notice thereof given to the whole world, the right of a per son to dispose of hisproperty by will may be rendered nugatory, as is attempted to be done in the instantcase. 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 heirswho might agree to the partition of the estate among themselves to the exclusion of others.

Dela Cerna v. Potot Digest Facts: 1. The spouses Bernabe Dela Serna and Gerasisa Rebabca executed a joint will where they gave two (2) parcels of land to manuela Rebaca, a niece, as they didn't have their own child. When Bernabe died, the said will was probated in 1939. 2. Another petition for probate of the same will insofar as Gervasia was concerned was filed in 1952 but due to the failure of the petitioner (Manuela) to appears, the same was dismissed in 1954. 3. The CFI held the petition (Bernabe probate) to be null and void as it is contrary to law. While the Court of Appeals reversed and held that the decree of probate in 1939 was issued by a court of probate jurisdiction and conclusive as to the due execution of the will. Hence this appeal. Issue: Whether or not the will is valid RULING: The Supreme Court affirmed the CA decision and held that Once a decree of probate becomes final in accordance with the rules of procedure, it is res judicata. THe final decree of probate entered in 1939 in the CFI of Cebu is conclusive as to the last will of Bernabe despite the fact that even then the Civil Code already decreed the invalidity of joint wills. (There was an error on the court but the decree has now become final.) The probate court committed an error of law which should have been corrected on appeals but which did not affect the jurisdiction of the probate court, nor the conclusive effect of its final decision. A decision which is binding upon the whole world. Nevertheless, the probate in 1939 only affected the share of Bernabe and could not include the disposition of the share of his wife which was still alive then, her properties were still not within the jurisdiction of the court. Hence, the validity of the will with respect to her, must be on her death, be reexamined and adjudicated de novo -- since a joint will is considered a separate will of each testator.

Gallanosa v. Arcangel Facts: 1. Florentino Gallanosa executed a will in 1938 when he was 80 years old. He owned 61 parcels of and at that time. He died in 1939 childless and survived by his brother Leon. In his will, he bequethed his 1/2 share of the conjugal estate to his second wife Tecla and if she predecease him (as what occurred), the said share shall be assigned to the spouses Gallanosa (Pedro & Corazon). Pedro is Tecla's son by her 1st marriage. He also gave 3 parcels of land to Adolfo, his protege. 2. The said will was admitted to probate with Gallanosa as executor. In 1952, thjhe legal heirs filed an action for the recovery of said 61 parcels of land. The action was dismissed on the ground of res judicata. Then, 28 years after probate, another acton agaisnt Gallanosa for annulment of the will, recovery of the lands alleging fraud and deceit, was filed. As a result, the lower court set aide the 1939 decree of probate. Issue: Whether or not a will which has been probated may still be annulled RULING: No. A final decree of probate is conclusive as to the due execution of the will. Due execution means that the testator was of sound and disposing mind at the time of the execution and that he was not acting under duress, menace, fraud or undue influence. Finally, that it was executed in accordance with the formalities provided by law. The period for seeking relief under Rule 38 has already expired, hence the judgment may only be set aside on the grounds of, 1) lack of jurisdiction or lack of due process of law, and 2) the judgment was obtained by means of extrinsic collateral fraud (which must be filed within 4 years from the discovery). Finally, Art. 1410 cannot apply to wills and testament.

Nepomuceno v. Court of Appeals Facts: 1. Martin Hugo died on 1974 and he left a will wherein he instituted Sofia Nepomuceno as the sole and only executor. It was also provided therein that he was married to Rufina Gomez with whom he had 3 children. 2. Petitioner (Sofia) filed for the probate of the will but the legal wife and her children opposed alleging that the will was procured through improper and undue influence and that there was an admission of concubinage with the petitioner. 3. The lower court denied the probate on the ground of the testator's admission of cohabitation, hence making the will invalid on its face. The Court of Appeals reversed and held that the will is valid except the devise in favor of the petitioner which is null and void in violation of Art. 739 and 1028. Issue: Whether or not the court can pass on the intrinsic validity of a will RULING: Yes, as an exception. But the general rule is that the court's area of inquiry is limited to the an examination and resolution of the extrinsic validity of the will. This general rule is however not inflexible and absolute. Given exceptional circumstances, the probate court is not powerless to do what the situation constrains it to do and may pass upon certain provisions of the will. The will itself admitted on its face the relationship between the testator and the petitioner. The will was validly executed in accordance with law but the court didn't find it to serve a practical purpose to remand the nullified provision in a separate action for that purpose only since in the probate of a will, the court does not ordinarily look into the intrinsic validity of its provisions. The devisee is invalid by virtue of Art. 739 which voids a donation made between persons guilty of adultery/concubinage at the time of the donations. Under Art, 1028 it is also prohibited.

NUGUID VS NUGUID GRN L-2344 17 SCRA 449 JUNE 23, 1966 SANCHEZ, J.: FACTS: Rosario Nuguid , single, died in December 30, 1962.She was without descendants but was survived by her parents and siblings. On May 18, 1963, Remedios Nuguid, her sister filed in CFI a holographic will allegedly executed by Rosario on November 17, 1951 or 11 years ago, said will instituted Remedios as the universal heir thereby, compulsory heirs, the ascendants of the decedent, filed their opposition to the probate proceeding. They contend that they were illegally preterited and as a consequence, the institution is void. The courts order held that the will in question is a complete nullity. ISSUE: Whether or not the compulsory heirs were preterited , thereby rendering the holographic will void. Whether the court may rule on the intrinsic validity of the will. RULING: The statute we are called upon to apply in article 854 of the civil code which states: The preterition or omission of one, some or all of the compulsory heirs in the direct time, whether living at the time of the execution of the will or born after the death of the testator, shall annul the institution of heir; but the d and legacies shall be valid insofar as they are not inofficious The forced heirs, parents of the deceased, were received nothing by the testament. The onesentence will institutes petitioner as the universal heir. No specific legacies or bequest are therein provided for. It is in this posture that we say that the nullity is complete. Preterition consists in the omission in the testators will of the forced heirs or anyone of them, either because they are not mentioned therein or, though mentioned, they are neither instituted as heirs nor are expressly disinherited as heirs nor are expressly disinherited. Disinheritance is a testamentary disposition depriving any compulsory heir his/her share in the legitime for a cause authorized by law. On the second issue, the case is for the probate of the will and the courts area of inquiry is limited to the extrinsic validity of the will comes after the will has been duly authenticated. However if the case is to be remanded for probate of the will, nothing will be gained. The practical conditions: time, effort, expenses and added anxiety, induced us to a belief that we might as well meat head-on the issue of the validity of the provisions of the will in question.

MALOLES V PHILLIPS 324 SCRA 172MENDOZA; Jan 31, 2000 NATURE Review on certiorari of 2 CA decisions which ruled that petitioner hasno right to intervene in the settlement of the estate of Dr. Arturo deSantos. FACTS On July 20, 1995Dr. Arturo de Santo filed a petition for probate of his will in RTC-Makati, Branch 61.He alleged that he hadno compulsory heirs; that he had named in his will as sole legateeand devisee the Arturo de Santos Foundation, Inc; and that copies of said will were in the custody of the named executrix, Pacita de losReyes Phillips.On Feb 16, 1996, Judge Gorospe issued an order grantingthe petition and allowing the will. Dr. De Santos died 10 days later.On April 3, 1996, Octavio S. Maloles II filed a motion for intervention claiming that, as the only child of Alicia de Santos(testator's sister) and Octavio L. Maloles, Sr., he was the sole full-blooded nephew and nearest of kin of Dr. De Santos. He likewisealleged that he was a creditor of the testator. Petitioner thus prayedfor the reconsideration of the order allowing the will and the issuanceof letters of administration in his name. On the other hand, Phillips, the wills designated executrix, filed a motion for the issuance of letters testamentary with Branch61. Later, however, she moved to withdraw her motion. This wasgranted, while petitioner was required to file a memorandum of authorities in support of his claim that said court still had jurisdictionto allow his intervention.Petitioner filed his memorandum of authorities on May 13,1996. Meanwhile, Phillips, who withdrew her motion for the issuanceof letters testamentary, refiled a petition for the same with the MakatiRTC, docketed as Sp. Proc. No. M4343, assigned to Branch 65.Upon Phillip's motion, Judge Abad Santos of Branch 65issued an order, dated June 28, 1996, appointing her as specialadministrator of Dr. De Santos's estate.Petitioner sought to intervene in M-4343 and to set asidethe appointment of Phillips as special administrator. He reiteratedthat he was the nearest of kin of the testator; that he came to knowof the existence of M-4343 only by accident; that the probateproceedings in M-4223 before Branch 61 of the same court was stillpending; that Phillips misdeclared the true worth of the testator'sestate; that Phillips was not fit to be the special administrator of theestate; and that petitioner should be given letters of administrationfor the estate of Dr. De Santos.On Aug 28, 1996, Judge Abad Santos ordered the transfer of M-4343 to Branch 61, on the ground that it is related to the casebefore Judge Gorospe of RTC Branch 61.It appears, however, that in M-4223, Judge Gorospe haddenied on Aug 26, 1996 petitioner's motion for intervention.Petitioner brought this matter to the CA which upheld the denial of petitioner's motion for intervention.Meanwhile, Judge Gorospe issued an order, dated Sep 4,1996, returning the records of M-4343 to Branch 65. The order statesthat there is no related case involving the ESTATE OF DECEDENT ARTURO DE SANTOS pending before Branch 61; there is, however,a case filed by ARTURO DE SANTOS, as petitioner under Rule 76for the Allowance of his will during his lifetime docketed as M-4223which was already decided on 16 Feb 1996 and has become final;after it became final, Pacita de los Reyes Phillips filed a MOTIONFOR THE ISSUANCE OF LETTERS TESTAMENTARY, which wassubsequently withdrawn after Branch 61 ruled that the motion couldnot be admitted as the subject matter involves a separate case under Rule 78, and movant withdrew her motion and filed M-4343; Octaviode Santos Maloles II filed a MOTION FOR INTERVENTION beforeM-4223 and this was already DENIED likewise for the same groundsthat the matter is for a separate case to be filed under Rule 78.Initially, Judge Abad Santos appeared firm in his positionthat it would be improper for Branch 65 to hear and resolve M4343,considering that the probate proceedings were commenced withBranch 61. He thus ordered the transfer of the records back to thelatter branch. However, he later recalled his

decision and tookcognizance of the case to expedite the proceedings:Considering the refusal of the Hon. Gorospe of Branch 61to continue hearing this case notwithstanding the fact that saidbranch began the probate proceedings of the estate of the deceasedand must therefore continue to exercise its jurisdiction to theexclusion of all others, until the entire estate of the testator had beenpartitioned and distributed as per Order dated 23 Sep 1996, Branch65 shall take cognizance of the petition if only to expedite theproceedings, and under the concept that the Makati RTC is but onecourt.On Nov 4, 1996: Judge Abad Santos granted petitioner's motion for intervention. Phillips MFR denied by the trial court. She then filed a petition for certiorari in the CA which set aside the trialcourt's order on the ground that petitioner had not shown anyright/interest to intervene in M-4343. ISSUES WON the petitioner has a right to intervene HELD NO. Petitioner claims the right to intervene in and opposethe petition for issuance of letters testamentary filed by privaterespondent. He argues that, as the nearest next of kin and creditor of the testator, his interest in the matter is material and direct. In rulingthat petitioner has no right to intervene in the proceedings before Branch 65, the CA held that Maloles claim to being a creditor of the estate is a belated one, having been raised for the first time only inhis reply to the opposition to his motion to intervene, and, as far asthe records show, not supported by evidence; the opposition mustcome from one with a direct interest in the estate or the will, andMaloles has none. Moreover, the ground cited that the executrix hasdeliberately misdeclared the truth worth and value of the estate, isnot relevant to the question of her competency to act as executor.Rule 76, sec 2 requires only an allegation of the probable value andcharacter of the property of the estate. The true value can bedetermined later on in the course of the settlement of the estate.Rule 79, sec 1 provides: Opposition to issuance of letters testamentary. Simultaneous petition for administration. Any personinterested in a will may state in writing the grounds why letterstestamentary should not issue to the persons named therein asexecutors, or any of them, and the court, after hearing upon notice,shall pass upon the sufficiency of such grounds. A petition may, atthe same time, be filed for letters of administration with the willannexed.Under this provision, "interested person" is one who wouldbe benefited by the estate, such as an heir, or one who has a claimagainst the estate, such as a creditor, and whose interest is materialand direct, not merely incidental or contingent.Even if petitioner is the nearest next of kin of Dr. De Santos,he cannot be considered an "heir" of the testator. It is a fundamentalrule of testamentary succession that one who has no compulsory or forced heirs may dispose of his entire estate by will.Nor does he have any right to intervene in the settlementproceedings based on his allegation that he is a creditor of thedeceased. Since the testator instituted or named an executor in hiswill, it is incumbent upon the Court to respect the desires of thetestator. As stated in Ozaeta v.Pecson:The choice of his executor is a precious prerogative of atestator, a necessary concomitant of his right to dispose of hisproperty in the manner he wishes. It is natural that the testator should desire to appoint one of his confidence, one who can betrusted to carry out his wishes in the disposal of his estate. Thecurtailment of this right may be considered a curtailment of the rightto dispose.Only if the appointed executor is incompetent, refuses the trust, or fails to give bond may the court appoint other persons to administer the estate.

Spouses Alvaro PASTOR, Jr. and Ma. Elena Achaval de PASTOR, petitioners,vs.The COURT OF APPEALS, Hon. Juan Y. REYES, and Lewellyn QUEMADA,respondents. G.R. No. L-56340, June 24, 1983. FACTS: Spouses Alvaro Pastor, Sr. and Sofia Bossio were survived by their two legitimate children Alvaro Pastor, Jr. (Pastor Jr.) andSofia Pastor (Sofia), and an illegitimate child, Lewellyn Quemada. Quemada filed a petition for the probate and allowance of analleged holographic will of Pastor Sr. with the CFI which contained only one testamentary disposition: a legacy in favor of Quemada consisting of 30% of Pastor Sr.s 42% share in the operation by ATLAS. Thereafter, the probate court appointedQuemada as special administrator of the entire estate of Pastor Sr. whether or not covered or affected by the holographic will.Consequently, Quemada instituted against Pastor Jr., and his wife an action for reconveyance of alleged properties of estatewhich included the properties subject of the legacy which were in the names of spouses Pastor Sr. and Ma. Elena, who claimedto be the owners in their own rights, and not by inheritance. The probate court issued an order allowing the will to probate. Theorder was affirmed by CA and on petition for review, the SC dismissed the petition and remanded the same to the probate courtafter denying reconsideration. For two years after remand of the case to the probate court, all pleadings of both parties remainedunacted upon. Not long after, the probate court set the hearing on the intrinsic validity of the will but upon objection of Pastor Jr.and Sofia on the ground of pendency of the reconveyance suit, no hearing was held. Instead, the probate court required the parties to submit their respective position papers. While the reconveyance suit was still pending in another court, the probatecourt issued Order of Execution and Garnishment, resolving the question of ownership of the royalties payable by ATLAS andruling in effect that the legacy to Quemada was not inofficious. Pursuant to said order, ATLAS was directed to remit directly toQuemada the 42% royalties due to decedents estate, of which Quemada was authorized to retain 75% for himself as legatee.Further, the 33% share of Pastor Jr. and/or his assignees was ordered garnished to answer for the accumulated legacy of Quemada. Being immediately executory, Quemada succeeded in obtaining a Writ of Execution and Garnishment. Theoppositors sought reconsideration thereof but in the meantime, the probate court ordered suspension of payment of all royaltiesdue Pastor Jr. and/or his assignees until after resolution of oppositors motion for reconsideration. Pending motion, Pastor Jr. andhis wife filed with the CA a petition for certiorari and prohibition with a prayer for writ of preliminary injunction assailing thewrit of execution and garnishment issued by the probate court. However, said petition was denied as well as their motion for reconsideration. Hence, this petition for review by certiorari with prayer for a writ of preliminary injunction. ISSUE:

Whether or not the Probate Order resolved with finality the questions of ownership and intrinsic validity. RULING: In a special proceeding for the probate of a will, the issue by and large is restricted to the extrinsic validity of the will. As a rule,the question of ownership is an extraneous matter which the Probate Court cannot resolve with finality. Thus, for the purpose of determining whether a certain property should or should not be included in the inventory of estate properties, the Probate Courtmay pass upon the title thereto, but such determination is provisional, not conclusive, and is subject to the final decision in aseparate action to resolve title.The Order sought to be executed by the assailed Order of execution is the Probate Order allegedly resolved the question of ownership of the disputed mining properties. However, nowhere in the dispositive portion is there a declaration of ownership of specific properties. On the contrary, it is manifested therein that ownership was not resolved. For it confined itself to the questionof extrinsic validity of the will, and the need for and propriety of appointing a special administrator. Thus it allowed andapproved the holographic will with respect to its extrinsic validity, the same having been duly authenticated pursuant to therequisites or solemnities prescribed by law. It declared that the intestate estate administration aspect must proceed subject to theoutcome of the suit for reconveyance of ownership and possession of real and personal properties.The Probate Court did not resolve the question of ownership of the properties listed in the estate inventory, considering that theissue of ownership was the very subject of controversy in the reconveyance suit that was still pending. It was, therefore, error for the assailed implementing Orders to conclude that the Probate Order adjudged with finality the question of ownership of themining properties and royalties, and that, premised on this conclusion, the dispositive portion of the said Probate Order directedspecial administrator to pay the legacy in dispute.

Pascual COSO, vs. Fermina Fernandez DEZA, et al., G.R. No.L- 16763,December 22, 1921
FACTS: The testator, a married man, became acquainted with Rosario Lopez and had illicit relations with her for many years. They begot an illegitimate son. The testators will gives the tercio de libre disposicion to the illegitimate son and also provides for the payment of nineteen hundred Spanish duros to Rosario Lopez by way of reimbursement for expenses incurred by her in talking care of the testator when he is alleged to have suffered from severe illness. The will was set aside on the ground of undue influence alleged to have been exerted over the mind of the testator by Rosario Lopez. There is no doubt that Rosario exercised some influence over the testator. ISSUE: Whether or not the influence exercised was of such a character to vitiate the will. RULING: Mere general or reasonable influence over a testator is not sufficient to invalidate a will; to have that effect, the influence must be undue. The rule as to what constitutes undue influence has been variously stated, but the substance of the different statements is that, to be sufficient to avoid a will, the influence exerted must be of a kind that so overpowers and subjugates the mind of the testator as to destroy his free agency and make him express the will of another rather than his own. Such influence must be actually exerted on the mind of the testator in regard to the execution of the will in question, either at the time of the execution of the will, or so near thereto as to be still operative, with the object of procuring a will in favor of particular parties, and it must result in the making of testamentary dispositions which the testator would not otherwise have made. And while the same amount of influence may become undue when exercise by one occupying an improper and adulterous relation to testator, the mere fact that some influence is exercised by a person sustaining that relation does not invalidate a will, unless it is further shown that the influence destroys the testa tors free agency. The burden is upon the parties challenging the will to show that undue influence existed at the time of its execution. While it is shown that the testator entertained strong affections for Rosario Lopez, it does not appear that her influence so overpowered and subjugated his mind as to destroy his free agency and make him express the will of another rather than his own. Mere affection, even if illegitimate, is not undue influence and does not invalidate a will. Influence gained by kindness and affection will not be regarded as undue, if no imposition or fraud be practiced, even though it induces the testator to make an unequal and unjust disposition of his property in favor of those who have contributed to his comfort and ministered to his wants, if such disposition is voluntarily made.