Republic of the Philippines

SUPREME COURT
Manila
EN BANC
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 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.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
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.:
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.
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 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 in that case (which we quote
hereunder) should not apply and control the present case.
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 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.
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 non-fulfillment 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 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.

1wp

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-23445

June 23, 1966

REMEDIOS NUGUID, petitioner and appellant,

vs.
FELIX NUGUID and PAZ SALONGA NUGUID, oppositors and appellees.
Custodio O. Partade for petitioner and appellant.
Beltran, Beltran and Beltran for oppositors and appellees.
SANCHEZ, J.:
Rosario Nuguid, a resident of Quezon City, died on December 30, 1962, single, without
descendants, legitimate or illegitimate. Surviving her were her legitimate parents, Felix Nuguid and
Paz Salonga Nuguid, and six (6) brothers and sisters, namely: Alfredo, Federico, Remedios,
Conrado, Lourdes and Alberto, all surnamed Nuguid.
On May 18, 1963, petitioner Remedios Nuguid filed in the Court of First Instance of Rizal a
holographic will allegedly executed by Rosario Nuguid on November 17, 1951, some 11 years before
her demise. Petitioner prayed that said will be admitted to probate and that letters of administration
with the will annexed be issued to her.
On June 25, 1963, Felix Nuguid and Paz Salonga Nuguid, concededly the legitimate father and
mother of the deceased Rosario Nuguid, entered their opposition to the probate of her will. Ground
therefor, inter alia, is that by the institution of petitioner Remedios Nuguid as universal heir of the
deceased, oppositors who are compulsory heirs of the deceased in the direct ascending line
were illegally preterited and that in consequence the institution is void.
On August 29, 1963, before a hearing was had on the petition for probate and objection thereto,
oppositors moved to dismiss on the ground of absolute preterition.
On September 6, 1963, petitioner registered her opposition to the motion to dismiss.

1wph1.t

The court's order of November 8, 1963, held that "the will in question is a complete nullity and will
perforce create intestacy of the estate of the deceased Rosario Nuguid" and dismissed the petition
without costs.
A motion to reconsider having been thwarted below, petitioner came to this Court on appeal.
1. Right at the outset, a procedural aspect has engaged our attention. The case is for the probate of
a will. The court's area of inquiry is limited to an examination of, and resolution on,
the extrinsic validity of the will. The due execution thereof, the testatrix's testamentary capacity, and
the compliance with the requisites or solemnities by law prescribed, are the questions solely to be
presented, and to be acted upon, by the court. Said court at this stage of the proceedings is not
called upon to rule on the intrinsic validity or efficacy of the provisions of the will, the legality of any
devise or legacy therein.1
A peculiar situation is here thrust upon us. The parties shunted aside the question of whether or not
the will should be allowed probate. For them, the meat of the case is the intrinsic validity of the will.
Normally, this comes only after the court has declared that the will has been duly authenticated. 2 But
petitioner and oppositors, in the court below and here on appeal, travelled on the issue of law, to wit:
Is the will intrinsically a nullity?

We pause to reflect. If the case were to be remanded for probate of the will, nothing will be gained.
On the contrary, this litigation will be protracted. And for aught that appears in the record, in the
event of probate or if the court rejects the will, probability exists that the case will come up once
again before us on the same issue of the intrinsic validity or nullity of the will. Result: waste of time,
effort, expense, plus added anxiety. These are the practical considerations that induce us to a belief
that we might as well meet head-on the issue of the validity of the provisions of the will in
question.3 After all, there exists a justiciable controversy crying for solution.
2. Petitioner's sole assignment of error challenges the correctness of the conclusion below that the
will is a complete nullity. This exacts from us a study of the disputed will and the applicable statute.
Reproduced hereunder is the will:
Nov. 17, 1951
I, ROSARIO NUGUID, being of sound and disposing mind and memory, having amassed a certain
amount of property, do hereby give, devise, and bequeath all of the property which I may have when
I die to my beloved sister Remedios Nuguid, age 34, residing with me at 38-B Iriga, Q.C. In witness
whereof, I have signed my name this seventh day of November, nineteen hundred and fifty-one.
(Sgd.) Illegible
T/ ROSARIO NUGUID
The statute we are called upon to apply in Article 854 of the Civil Code which, in part, provides:
ART. 854. The preterition or omission of one, some, or all of the compulsory heirs in the
direct line, whether living at the time of the execution of the will or born after the death of the
testator, shall annul the institution of heir; but the devises and legacies shall be valid insofar
as they are not inofficious. ...
Except for inconsequential variation in terms, the foregoing is a reproduction of Article 814 of the
Civil Code of Spain of 1889, which is similarly herein copied, thus
Art. 814. The preterition of one or all of the forced heirs in the direct line, whether living at the
time of the execution of the will or born after the death of the testator, shall void the institution
of heir; but the legacies and betterments4 shall be valid, in so far as they are not
inofficious. ...
A comprehensive understanding of the term preterition employed in the law becomes a necessity.
On this point Manresa comments:
La pretericion consiste en omitar al heredero en el testamento. O no se le nombra siquiera o
aun nombrandole como padre, hijo, etc., no se le instituya heredero ni se le deshereda
expresamente ni se le asigna parte alguna de los bienes, resultando privado de un modo
tacito de su derecho a legitima.
Para que exista pretericion, con arreglo al articulo 814, basta que en el testamento omita el
testador a uno cualquiera de aquellos a quienes por su muerte corresponda la herencia
forzosa.
Se necesita, pues, a) Que la omision se refiera a un heredero forzoso. b) Que la omision
sea completa; que el heredero forzoso nada reciba en el testamento.
It may now appear trite bat nonetheless helpful in giving us a clear perspective of the problem before
us, to have on hand a clear-cut definition of the word annul:

To "annul" means to abrogate, to make void ... In re Morrow's Estate, 54 A. 342, 343, 204
Pa. 484.6
The word "annul" as used in statute requiring court to annul alimony provisions of divorce
decree upon wife's remarriage means to reduce to nothing; to annihilate; obliterate; blot out;
to make void or of no effect; to nullify; to abolish. N.J.S.A. 2:50 38 (now N.J.S. 2A:34-35).
Madden vs. Madden, 40 A. 2d 611, 614, 136 N..J Eq. 132.7
ANNUL. To reduce to nothing; annihilate; obliterate; to make void or of no effect; to nullify; to
abolish; to do away with. Ex parte Mitchell, 123 W. Va. 283, 14 S.E. 2d. 771, 774.8
And now, back to the facts and the law. The deceased Rosario Nuguid left no descendants,
legitimate or illegitimate. But she left forced heirs in the direct ascending line her parents, now
oppositors Felix Nuguid and Paz Salonga Nuguid. And, the will completely omits both of them: They
thus received nothing by the testament; tacitly, they were deprived of their legitime; neither were they
expressly disinherited. This is a clear case of preterition. Such preterition in the words of Manresa
"anulara siempre la institucion de heredero, dando caracter absoluto a este ordenamiento referring
to the mandate of Article 814, now 854 of the Civil Code. 9 The one-sentence will here institutes
petitioner as the sole, universal heir nothing more. No specific legacies or bequests are therein
provided for. It is in this posture that we say that the nullity is complete. Perforce, Rosario Nuguid
died intestate. Says Manresa:
En cuanto a la institucion de heredero, se anula. Lo que se anula deja de existir, en todo o
en parte? No se aade limitacion alguna, como en el articulo 851, en el que se expresa que
se anulara la institucion de heredero en cuanto prejudique a la legitima del deseheredado
Debe, pues, entenderse que la anulacion es completa o total, y que este articulo como
especial en el caso que le motiva rige con preferencia al 817. 10
The same view is expressed by Sanchez Roman:
La consecuencia de la anulacion o nulidad de la institucion de heredero por pretericion de
uno, varios o todos los forzosos en linea recta, es la apertura de la sucesion intestada total o
parcial. Sera total, cuando el testador que comete la pretericion, hubiese dispuesto de todos
los bienes por titulo universal de herencia en favor de los herederos instituidos, cuya
institucion se anula, porque asi lo exige la generalidad del precepto legal del art. 814, al
determinar, como efecto de la pretericion, el de que "anulara la institucion de heredero." ... 11
Really, as we analyze the word annul employed in the statute, there is no escaping the conclusion
that the universal institution of petitioner to the entire inheritance results in totally abrogating the will.
Because, the nullification of such institution of universal heir without any other testamentary
disposition in the will amounts to a declaration that nothing at all was written. Carefully worded
and in clear terms, Article 854 offers no leeway for inferential interpretation. Giving it an expansive
meaning will tear up by the roots the fabric of the statute. On this point, Sanchez Roman cites the
"Memoria annual del Tribunal Supreme, correspondiente a 1908", which in our opinion expresses
the rule of interpretation, viz:
... El art. 814, que preceptua en tales casos de pretericion la nulidad de la institucion de
heredero, no consiente interpretacion alguna favorable a la persona instituida en el sentido
antes expuesto aun cuando parezca, y en algun caso pudiera ser, mas o menos equitativa,
porque una nulidad no significa en Derecho sino la suposicion de que el hecho o el acto no
se ha realizado, debiendo por lo tanto procederse sobre tal base o supuesto, y
consiguientemente, en un testamento donde falte la institucion, es obligado llamar a los
herederos forzosos en todo caso, como habria que llamar a los de otra clase, cuando el
testador no hubiese distribudo todos sus bienes en legados, siendo tanto mas obligada esta
consecuencia legal cuanto que, en materia de testamentos, sabido es, segun tiene
declarado la jurisprudencia, con repeticion, que no basta que sea conocida la voluntad de
quien testa si esta voluntad no aparece en la forma y en las condiciones que la ley ha

exigido para que sea valido y eficaz, por lo que constituiria una interpretacion arbitraria,
dentro del derecho positivo, reputar como legatario a un heredero cuya institucion fuese
anulada con pretexto de que esto se acomodaba mejor a la voluntad del testador, pues aun
cuando asi fuese, sera esto razon para modificar la ley, pero no autoriza a una interpretacion
contraria a sus terminos y a los principios que informan la testamentifaccion, pues no porque
parezca mejor una cosa en el terreno del Derecho constituyente, hay razon para convereste
juicio en regla de interpretacion, desvirtuando y anulando por este procedimiento lo que el
legislador quiere establecer. 12
3. We should not be led astray by the statement in Article 854 that, annullment notwithstanding, "the
devises and legacies shall be valid insofar as they are not inofficious". Legacies and devises merit
consideration only when they are so expressly given as such in a will. Nothing in Article 854
suggests that the mere institution of a universal heir in a will void because of preterition would
give the heir so instituted a share in the inheritance. As to him, the will is inexistent. There must be,
in addition to such institution, a testamentary disposition granting him bequests or legacies apart and
separate from the nullified institution of heir. Sanchez Roman, speaking of the two component parts
of Article 814, now 854, states that preterition annuls the institution of the heir "totalmente por la
pretericion"; but added (in reference to legacies and bequests) "pero subsistiendo ... todas aquellas
otras disposiciones que no se refieren a la institucion de heredero ... . 13 As Manresa puts it,
annulment throws open to intestate succession the entire inheritance including "la porcion libre (que)
no hubiese dispuesto en virtud de legado, mejora o donacion. 14
As aforesaid, there is no other provision in the will before us except the institution of petitioner as
universal heir. That institution, by itself, is null and void. And, intestate succession ensues.
4. Petitioner's mainstay is that the present is "a case of ineffective disinheritance rather than one of
preterition". 15From this, petitioner draws the conclusion that Article 854 "does not apply to the case
at bar". This argument fails to appreciate the distinction between pretention and disinheritance.
Preterition "consists in the omission in the testator's will of the forced heirs or anyone of them, either
because they are not mentioned therein, or, though mentioned, they are neither instituted as heirs
nor are expressly disinherited." 16 Disinheritance, in turn, "is a testamentary disposition depriving any
compulsory heir of his share in the legitime for a cause authorized by law. " 17 In Manresa's own
words: "La privacion expresa de la legitima constituye la desheredacion. La privacion tacita de la
misma se denomina pretericion." 18 Sanchez Roman emphasizes the distinction by stating that
disinheritance "es siempre voluntaria"; preterition, upon the other hand, is presumed to be
"involuntaria". 19 Express as disinheritance should be, the same must be supported by a legal cause
specified in the will itself. 20
The will here does not explicitly disinherit the testatrix's parents, the forced heirs. It simply omits their
names altogether. Said will rather than be labeled ineffective disinheritance is clearly one in which
the said forced heirs suffer from preterition.
On top of this is the fact that the effects flowing from preterition are totally different from those of
disinheritance. Preterition under Article 854 of the Civil Code, we repeat, "shall annul the institution
of heir". This annulment is in toto, unless in the will there are, in addition, testamentary dispositions
in the form of devises or legacies. In ineffective disinheritance under Article 918 of the same Code,
such disinheritance shall also "annul the institution of heirs", put only "insofar as it may prejudice the
person disinherited", which last phrase was omitted in the case of preterition. 21 Better stated yet, in
disinheritance the nullity is limited to that portion of the estate of which the disinherited heirs have
been illegally deprived. Manresa's expressive language, in commenting on the rights of the
preterited heirs in the case of preterition on the one hand and legal disinheritance on the other, runs
thus: "Preteridos, adquiren el derecho a todo; desheredados, solo les corresponde un tercio o dos
tercios, 22 el caso.23

5. Petitioner insists that the compulsory heirs ineffectively disinherited are entitled to receive their
legitimes, but that the institution of heir "is not invalidated," although the inheritance of the heir so
instituted is reduced to the extent of said legitimes. 24
This is best answered by a reference to the opinion of Mr. Chief Justice Moran in the Neri case
heretofore cited,viz:
But the theory is advanced that the bequest made by universal title in favor of the children by
the second marriage should be treated as legado and mejora and, accordingly, it must not be
entirely annulled but merely reduced. This theory, if adopted, will result in a complete
abrogation of Articles 814 and 851 of the Civil Code. If every case of institution of heirs may
be made to fall into the concept of legacies and betterments reducing the bequest
accordingly, then the provisions of Articles 814 and 851 regarding total or partial nullity of the
institution, would. be absolutely meaningless and will never have any application at all. And
the remaining provisions contained in said article concerning the reduction of inofficious
legacies or betterments would be a surplusage because they would be absorbed by Article
817. Thus, instead of construing, we would be destroying integral provisions of the Civil
Code.
The destructive effect of the theory thus advanced is due mainly to a failure to distinguish
institution of heirs from legacies and betterments, and a general from a special provision.
With reference to article 814, which is the only provision material to the disposition of this
case, it must be observed that the institution of heirs is therein dealt with as a thing separate
and distinct from legacies or betterments. And they are separate and distinct not only
because they are distinctly and separately treated in said article but because they are in
themselves different. Institution of heirs is a bequest by universal title of property that is
undetermined. Legacy refers to specific property bequeathed by a particular or special
title. ... But again an institution of heirs cannot be taken as a legacy. 25
The disputed order, we observe, declares the will in question "a complete nullity". Article 854 of the
Civil Code in turn merely nullifies "the institution of heir". Considering, however, that the will before
us solely provides for the institution of petitioner as universal heir, and nothing more, the result is the
same. The entire will is null.
Upon the view we take of this case, the order of November 8, 1963 under review is hereby affirmed.
No costs allowed. So ordered.
Concepcion, C.J., Reyes, J.B.L., Barrera, Dizon, Regala, Makalintal, Bengzon, J.P. and Zaldivar, JJ.,
concur.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-48840 December 29, 1943
ERNESTO M. GUEVARA, petitioner-appellant,
vs.
ROSARIO GUEVARA and her husband PEDRO BUISON, respondent-appellees.
Primacias, Abad, Mencias & Castillo for appellant.
Pedro C. Quinto for appellees.

OZAETA, J.:
Ernesto M. Guevarra and Rosario Guevara, ligitimate son and natural daughter, respectively, of the
deceased Victorino L. Guevara, are litigating here over their inheritance from the latter. The action
was commenced on November 12, 1937, by Rosario Guevara to recover from Ernesto Guevara
what she claims to be her strict ligitime as an acknowledged natural daughter of the deceased to
wit, a portion of 423,492 square meters of a large parcel of land described in original certificate of
title No. 51691 of the province of Pangasinan, issued in the name of Ernesto M. Guervara and to
order the latter to pay her P6,000 plus P2,000 a year as damages for withholding such legitime from
her. The defendant answered the complaint contending that whatever right or rights the plaintiff
might have had, had been barred by the operation of law.
It appears that on August 26, 1931, Victorino L. Guevara executed a will (exhibit A), apparently with
all the formalities of the law, wherein he made the following bequests: To his stepdaughter Candida
Guevara, a pair of earrings worth P150 and a gold chain worth P40; to his son Ernesto M. Guevara,
a gold ring worth P180 and all the furniture, pictures, statues, and other religious objects found in the
residence of the testator in Poblacion Sur, Bayambang, Pangasinan; "a mi hija Rosario Guevara," a
pair of earrings worth P120; to his stepson Piuo Guevara, a ring worth P120; and to his wife by
second marriage, Angustia Posadas, various pieces of jewelry worth P1,020.
He also made the following devises: "A mis hijos Rosario Guevara y Ernesto M. Guevara y a mis
hijastros, Vivencio, Eduviges, Dionisia, Candida y Pio, apellidados Guevara," a residential lot with its
improvements situate in the town of Bayambang, Pangasinan, having an area of 960 square meters
and assessed at P540; to his wife Angustia Posadas he confirmed the donation propter
nuptias theretofore made by him to her of a portion of 25 hectares of the large parcel of land of 259odd hectares described in plan Psu-66618. He also devised to her a portion of 5 hectares of the
same parcel of land by way of complete settlement of her usufructurary right.
1awphil.net

He set aside 100 hectares of the same parcel of land to be disposed of either by him during his
lifetime or by his attorney-in-fact Ernesto M. Guevara in order to pay all his pending debts and to
degray his expenses and those of his family us to the time of his death.
The remainder of said parcel of land his disposed of in the following manner:
(d). Toda la porcion restante de mi terreno arriba descrito, de la extension superficial
aproximada de ciento veintinueve (129) hectareas setenta (70) areas, y veiticinco (25)
centiares, con todas sus mejoras existentes en la misma, dejo y distribuyo, pro-indiviso, a
mis siguientes herederos como sigue:

A mi hijo legitimo, Ernesto M. Guevara, ciento ocho (108) hectareas, ocho (8) areas y
cincuenta y cuatro (54) centiareas, hacia la parte que colinda al Oeste de las cien (100)
hectareas referidas en el inciso (a) de este parrafo del testamento, como su propiedad
absoluta y exclusiva, en la cual extension superficial estan incluidas cuarenta y tres (43)
hectareas, veintitres (23) areas y cuarenta y dos (42) centiareas que le doy en concepto de
mejora.
A mi hija natural reconocida, Rosario Guevara, veintiun (21) hectareas, sesenta y un (61)
areas y setenta y un (71) centiareas, que es la parte restante.
Duodecimo. Nombro por la presente como Albacea Testamentario a mi hijo Ernesto M.
Guevara, con relevacion de fianza. Y una vez legalizado este testamento, y en cuanto sea
posible, es mi deseo, que los herederos y legatarios aqui nombrados se repartan
extrajudicialmente mis bienes de conformidad con mis disposiciones arriba consignadas.
Subsequently, and on July 12, 1933, Victorino L. Guevarra executed whereby he conveyed to him
the southern half of the large parcel of land of which he had theretofore disposed by the will above
mentioned, inconsideration of the sum of P1 and other valuable considerations, among which were
the payment of all his debts and obligations amounting to not less than P16,500, his maintenance up
to his death, and the expenses of his last illness and funeral expenses. As to the northern half of the
same parcel of land, he declared: "Hago constar tambien que reconozco a mi referido hijo Ernesto
M. guevara como 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.
On September 27, 1933, Victorino L. Guevarra died. His last will and testament, however, was never
presented to the court for probate, nor has any administration proceeding ever been instituted for the
settlement of his estate. Whether the various legatees mentioned in the will have received their
respective legacies or have even been given due notice of the execution of said will and of the
dispositions therein made in their favor, does not affirmatively appear from the record of this case.
Ever since the death of Victorino L. Guevara, his only legitimate son Ernesto M. Guevara appears to
have possessed the land adjudicated to him in the registration proceeding and to have disposed of
various portions thereof for the purpose of paying the debts left by his father.
In the meantime Rosario Guevara, who appears to have had her father's last will and testament in
her custody, did nothing judicially to invoke the testamentary dispositions made therein in her favor,
whereby the testator acknowledged her as his natural daughter and, aside from certain legacies and
bequests, devised to her a portion of 21.6171 hectares of the large parcel of land described in the
will. But a little over four years after the testor's demise, she (assisted by her husband) commenced
the present action against Ernesto M. Guevara alone for the purpose hereinbefore indicated; and it
was only during the trial of this case that she presented the will to the court, not for the purpose of
having it probated but only to prove that the deceased Victirino L. Guevara had acknowledged her
as his natural daughter. Upon that proof of acknowledgment she claimed her share of the inheritance
from him, but on the theory or assumption that he died intestate, because the will had not been
probated, for which reason, she asserted, the betterment therein made by the testator in favor of his
legitimate son Ernesto M. Guevara should be disregarded. Both the trial court and the Court of
appeals sustained that theory.

Two principal questions are before us for determination: (1) the legality of the procedure adopted by
the plaintiff (respondent herein) Rosario Guevara; and (2) the efficacy of the deed of sale exhibit 2
and the effect of the certificate of title issued to the defendant (petitioner herein) Ernesto M.
Guevara.
I
We cannot sanction the procedure adopted by the respondent Rosario Guevara, it being in our
opinion in violation of procedural law and an attempt to circumvent and disregard the last will and
testament of the decedent. The Code of Civil Procedure, which was in force up to the time this case
was decided by the trial court, contains the following pertinent provisions:
Sec. 625. Allowance Necessary, and Conclusive as to Execution. No will shall pass either
the real or personal estate, unless it is proved and allowed in the Court of First Instance, or
by appeal to the Supreme Court; and the allowance by the court of a will of real and personal
estate shall be conclusive as to its due execution.
Sec. 626. Custodian of Will to Deliver. The person who has the custody of a will shall,
within thirty days after he knows of the death of the testator, deliver the will into the court
which has jurisdiction, or to the executor named in the will.
Sec. 627. Executor to Present Will and Accept or Refuse Trust. A person named as
executor in a will, shall within thirty days after he knows of the death of the testor, or within
thirty days after he knows that he is named executor, if he obtained such knowledge after
knowing of the death of the testor, present such will to the court which has jurisdiction, unless
the will has been otherwise returned to said court, and shall, within such period, signify to the
court his acceptance of the trust, or make known in writing his refusal to accept it.
Sec. 628. Penalty. A person who neglects any of the duties required in the two proceeding
sections, unless he gives a satisfactory excuse to the court, shall be subject to a fine not
exceeding one thousand dollars.
Sec. 629. Person Retaining Will may be Committed. If a person having custody of a will
after the death of the testator neglects without reasonable cause to deliver the same to the
court having jurisdiction, after notice by the court so to do, he may be committed to the
prison of the province by a warrant issued by the court, and there kept in close confinement
until he delivers the will.
The foregoing provisions are now embodied in Rule 76 of the new Rules of Court, which took effect
on July 1, 1940.
The proceeding for the probate of a will is one in rem, with notice by publication to the whole world
and with personal notice to each of the known heirs, legatees, and devisees of the testator (section
630, C. c. P., and sections 3 and 4, Rule 77). Altho not contested (section 5, Rule 77), the due
execution of the will and the fact that the testator at the time of its execution was of sound and
disposing mind and not acting under duress, menace, and undue influence or fraud, must be proved
to the satisfaction of the court, and only then may the will be legalized and given effect by means of
a certificate of its allowance, signed by the judge and attested by the seal of the court; and when the
will devises real property, attested copies thereof and of the certificate of allowance must be
recorded in the register of deeds of the province in which the land lies. (Section 12, Rule 77, and
section 624, C. C. P.)
It will readily be seen from the above provisions of the law that the presentation of a will to the court
for probate is mandatory and its allowance by the court is essential and indispensable to its efficacy.
To assure and compel the probate of will, the law punishes a person who neglects his duty to
present it to the court with a fine not exceeding P2,000, and if he should persist in not presenting it,
he may be committed to prision and kept there until he delivers the will.

The Court of Appeals took express notice of these requirements of the law and held that a will,
unless probated, is ineffective. Nevertheless it sanctioned the procedure adopted by the respondent
for the following reasons:
The majority of the Court is of the opinion that if this case is dismissed ordering the filing of
testate proceedings, it would cause injustice, incovenience, delay, and much expense to the
parties, and that therefore, it is preferable to leave them in the very status which they
themselves have chosen, and to decide their controversy once and for all, since, in a similar
case, the Supreme Court applied that same criterion (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 no
debts and the heirs and legatees are all of age, or the minors are represented by their
judicial guardians, the parties may, without securing letters of administration, divide the
estate among themselves as they see fit by means of a public instrument filed in the office of
the register of deeds, and should they disagree, they may do so in an ordinary action of
partition. If there is only one heir or one legatee, he may adjudicate to himself the entire
estate by means of an affidavit filed in the office of the register of deeds. It shall be presumed
that the decedent left no debts if no creditor files a petition for letters of administration within
two years after the death of the decedent.
That is a modification of section 596 of the Code of Civil Procedure, which reads as follows:
Sec. 596. Settlement of Certain Intestates Without Legal Proceedings. Whenever all the
heirs of a person who died intestate are of lawful age and legal capacity and there are no
debts due from the estate, or all the debts have been paid the heirs may, by agreement duly
executed in writing by all of them, and not otherwise, apportion and divide the estate among
themselves, as they may see fit, without proceedings in court.
The implication is that by the omission of the word "intestate" and the use of the word "legatees" in
section 1 of Rule 74, a summary extrajudicial settlement of a deceased person's estate, whether he
died testate or intestate, may be made under the conditions specified. Even if we give retroactive
effect to section 1 of Rule 74 and apply it here, as the Court of Appeals did, we do not believe it
sanctions the nonpresentation of a will for probate and much less the nullification of such will thru the
failure of its custodian to present it to the court for probate; for such a result is precisely what Rule
76 sedulously provides against. Section 1 of Rule 74 merely authorizes the extrajudicial or judicial
partition of the estate of a decedent "without securing letter of administration." It does not say that in
case the decedent left a will the heirs and legatees may divide the estate among themselves without
the necessity of presenting the will to the court for probate. The petition to probate a will and the
petition to issue letters of administration are two different things, altho both may be made in the
same case. the allowance of a will precedes the issuance of letters testamentary or of administration
(section 4, Rule 78). One can have a will probated without necessarily securing letters testamentary
or of administration. We hold that under section 1 of Rule 74, in relation to Rule 76, if the decedent
left a will and no debts and the heirs and legatees desire to make an extrajudicial partition of the
estate, they must first present that will to the court for probate and divide the estate in accordance
with the will. They may not disregard the provisions of the will unless those provisions are contrary to
law. Neither may they so away with the presentation of the will to the court for probate, because
such suppression of the will is contrary to law and public policy. The law enjoins the probate of the
will and public policy requires it, because unless the will is probated and notice thereof given to the
whole world, the right of a person to dispose of his property by will may be rendered nugatory, as is
attempted to be done in the instant case. Absent legatees and devisees, or such of them as may

have no knowledge of the will, could be cheated of their inheritance thru the collusion of some of the
heirs who might agree to the partition of the estate among themselves to the exclusion of others.
In the instant case there is no showing that the various legatees other than the present litigants had
received their respective legacies or that they had knowledge of the existence and of the provisions
of the will. Their right under the will cannot be disregarded, nor may those rights be obliterated on
account of the failure or refusal of the custodian of the will to present it to the court for probate.
Even if the decedent left no debts and nobdy raises any question as to the authenticity and due
execution of the will, none of the heirs may sue for the partition of the estate in accordance with that
will without first securing its allowance or probate by the court, first, because the law expressly
provides that "no will shall pass either real or personal estate unless it is proved and allowed in the
proper court"; and, second, because the probate of a will, which is a proceeding in rem, cannot be
dispensed with the substituted by any other proceeding, judicial or extrajudicial, without offending
against public policy designed to effectuate the testator's right to dispose of his property by will in
accordance with law and to protect the rights of the heirs and legatees under the will thru the means
provided by law, among which are the publication and the personal notices to each and all of said
heirs and legatees. Nor may the court approve and allow the will presented in evidence in such an
action for partition, which is one in personam, any more than it could decree the registration under
the Torrens system of the land involved in an ordinary action for reinvindicacion or partition.
We therefore believe and so hold that section 1 of Rule 74, relied upon by the Court of Appeals,
does not sanction the procedure adopted by the respondent.
The case of 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.
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 section 627 of the Code of
Civil Procedure), because his contention is that said will, insofar as the large parcel of land in
litigation is concerned, has been superseded by the deed of sale exhibit 2 and by the subsequent
issuance of the Torrens certificate of title in his favor.
II
This brings us to the consideration of the second question, referring to the efficacy of the deed of
sale exhibit 2 and the effect of the certificate of titled issued to the defendant Ernesto M. Guevara.
So that the parties may not have litigated here in vain insofar as that question is concerned, we
deem it proper to decide it now and obviate the necessity of a new action.

The deed of sale exhibit 2 executed by and between Victorino L. Guevara and Ernesto M. Guevara
before a notary public on July 12, 1933, may be divided into two parts: (a) insofar as it disposes of
and conveys to Ernesto M. Guevara the southern half of Victorino L. Guevara's hacienda of 259-odd
hectares in consideration of P1 and other valuable considerations therein mentioned; and (b) insofar
as it declares that Ernesto M. Guevara became the owner of the northern half of the same hacienda
by repurchasing it with his own money from Rafael T. Puzon.
A. As to the conveyance of the southern half of the hacienda to Ernesto M. Guevara in consideration
of the latter's assumption of the obligation to pay all the debts of the deceased, the Court of Appeals
found it to be valid and efficacious because: "(a) it has not been proven that the charges imposed as
a condition is [are] less than the value of the property; and (b) neither has it been proven that the
defendant did not comply with the conditions imposed upon him in the deed of transfer." As a matter
of fact the Court of Appeals found" "It appears that the defendant has been paying the debts left by
his father. To accomplish this, he had to alienate considerable portions of the above-mentioned land.
And we cannot brand such alienation as anomalous unless it is proven that they have exceeded the
value of what he has acquired by virtue of the deed of July 12, 1933, and that of his corresponding
share in the inheritance." The finding of the Court of Appeals on this aspect of the case is final and
conclusive upon the respondent, who did not appeal therefrom.
B. With regard to the northern half of the hacienda, the findings of fact and of law made by the Court
of Appeals are as follows:
The defendant has tried to prove that with his own money, he bought from Rafael Puzon
one-half of the land in question, but the Court a quo, after considering the evidence, found it
not proven; we hold that such conclusion is well founded. The acknowledgment by the
deceased, Victorino L. Guevara, of the said transactions, which was inserted incidentally in
the document of July 12, 1933, is clearly belied by the fact that the money paid to Rafael
Puzon came from Silvestre P. Coquia, to whom Victorino L. Guevara had sold a parcel of
land with the right of repurchase. The defendant, acting for his father, received the money
and delivered it to Rafael Puzon to redeem the land in question, and instead of executing a
deed of redemption in favor of Victorino L. Guevara, the latter executed a deed of sale in
favor of the defendant.
The plaintiff avers that she withdrew her opposition to the registration of the land in the name
of the defendant, because of the latter's promise that after paying all the debt of their father,
he would deliver to her and to the widow their corresponding shares. As their father then was
still alive, there was no reason to require the delivery of her share and that was why she did
not insist on her opposition, trusting on the reliability and sincerity of her brother's promise.
The evidence shows that such promise was really made. The registration of land under the
Torrens system does not have the effect of altering the laws of succession, or the rights of
partition between coparceners, joint tenants, and other cotenants nor does it change or affect
in any other way any other rights and liabilities created by law and applicable to unregistered
land (sec. 70, Land Registration Law). The plaintiff is not, then, in estoppel, nor can the
doctrine of res judicata be invoked against her claim. Under these circumstances, she has
the right to compel the defendant to deliver her corresponding share in the estate left by the
deceased, Victorino L. Guevara.
In his tenth to fourteenth assignments of error the petitioner assails the foregoing findings of the
Court of Appeals. But the findings of fact made by said court are final and not reviewable by us on
certiorari. The Court of Appeals found that the money with which the petitioner repurchased the
northern half of the land in question from Rafael Puzon was not his own but his father's, it being the
proceeds of the sale of a parcel of land made by the latter to Silvestre P. Coquia. Said court also
found that the respondent withdrew her opposition to the registration of the land in the name of the
petitioner upon the latter's promise that after paying all the debts of their father he would deliver to
her and to the widow their corresponding shares. From these facts, it results that the interested
parties consented to the registration of the land in question in the name of Ernesto M. Guevara alone
subject to the implied trust on account of which he is under obligation to deliver and convey to them

their corresponding shares after all the debts of the original owner of said land had been paid. Such
finding does not constitute a reversal of the decision and decree of registration, which merely
confirmed the petitioner's title; and in the absence of any intervening innocent third party, the
petitioner may be compelled to fulfill the promise by virtue of which he acquired his title. That is
authorized by section 70 of the Land Registration Act, cited by the Court of Appeals, and by the
decision of this Court in Severino vs. Severino, 44 Phil., 343, and the cases therein cited.
Upon this phase of the litigation, we affirm the finding of the Court of Appeals that the northern half of
the land described in the will exhibit A and in original certificate of title No. 51691 still belongs to the
estate of the deceased Victorino L. Guevara. In the event the petitioner Ernesto M. Guevara has
alienated any portion thereof, he is under obligation to compensate the estate with an equivalent
portion from the southern half of said land that has not yet been sold. In other words, to the estate of
Victorino L. Guevara still belongs one half of the total area of the land described in said original
certificate of title, to be taken from such portions as have not yet been sold by the petitioner, the
other half having been lawfully acquired by the latter in consideration of his assuming the obligation
to pay all the debts of the deceased.
Wherefore, that part of the decision of the Court of Appeals which declares in effect that
notwithstanding exhibit 2 and the issuance of original certificate of title No. 51691 in the name of
Ernesto M. Guevara, one half of the land described in said certificate of title belongs to the estate of
Victorino L. Guevara and the other half to Ernesto M. Guevara in consideration of the latter's
assumption of the obligation to pay all the debts of the deceased, is hereby affirmed; but the
judgment of said court insofar as it awards any relief to the respondent Rosario Guevara in this
action is hereby reversed and set aside, and the parties herein are hereby ordered to present the
document exhibit A to the proper court for probate in accordance with law, without prejudice to such
action as the provincial fiscal of Pangasinan may take against the responsible party or parties under
section 4 of Rule 76. After the said document is approved and allowed by the court as the last will
and testament of the deceased Victorino L. Guevara, the heirs and legatees therein named may take
such action, judicial or extrajudicial, as may be necessary to partition the estate of the testator,
taking into consideration the pronouncements made in part II of this opinion. No finding as to costs in
any of the three instances.
Yulo, C.J., and Hontiveros, 1 J., concur.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-20234

December 23, 1964

PAULA DE LA CERNA, ET AL., petitioners,

vs.
MANUELA REBACA POTOT, ET AL., and THE HONORABLE COURT OF
APPEALS, respondents.
Philip M. Alo and Crispin M. Menchavez for petitioners.
Nicolas Jumapao for respondents.
REYES, J.B.L., J.:
Appeal by Paula de la Cerna and others from a decision of the Court of Appeals, Sixth Division
(C.A.-G.R. No. 23763-R) reversing that of the Court of First Instance of Cebu (Civ. Case No. R-3819)
and ordering the dismissal of an action for partition.
The factual background appears in the following portion of the decision of the Court of Appeals
(Petition, Annex A, pp. 2-4):
It appears that on May 9, 1939, the spouses, Bernabe de la Serna and Gervasia Rebaca,
executed a joint last will and testament in the local dialect whereby they willed that "our two
parcels of land acquired during our marriage together with all improvements thereon shall be
given to Manuela Rebaca, our niece, whom we have nurtured since childhood, because God
did not give us any child in our union, Manuela Rebaca being married to Nicolas Potot", and
that "while each of the testators is yet living, he or she will continue to enjoy the fruits of the
two lands aforementioned", the said two parcels of land being covered by Tax No. 4676 and
Tax No. 6677, both situated in sitio Bucao, barrio Lugo, municipality of Borbon, province of
Cebu. Bernabe dela Serna died on August 30, 1939, and the aforesaid will was submitted to
probate by said Gervasia and Manuela before the Court of First Instance of Cebu which,
after due publication as required by law and there being no opposition, heard the evidence,
and, by Order of October 31, 1939; in Special Proceedings No. 499, "declara legalizado el
documento Exhibit A como el testamento y ultima voluntad del finado Bernabe de la Serna
con derecho por parte du su viuda superstite Gervasia Rebaca y otra testadora al propio
tiempo segun el Exhibit A de gozar de los frutos de los terranos descritos en dicho
documents; y habido consideracion de la cuantia de dichos bienes, se decreta la distribucion
sumaria de los mismos en favor de la logataria universal Manuela Rebaca de Potot previa
prestacion por parte de la misma de una fianza en la sum de P500.00 para responder de
cualesquiera reclamaciones que se presentare contra los bienes del finado Bernabe de la
Serna de los 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 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.

Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION
G.R. No. L-29300 June 21, 1978
PEDRO D. H. GALLANOSA, CORAZON GRECIA-GALLONOSA and ADOLFO FORTAJADA, the
deceased Pedro Gallanosa being substituted by his legal heirs, namely his above-named
widow and his children, ISIDRO GALLANOSA and LEDY GALLANOSA, and grandchildren
named IMELDA TECLA GALLANOSA and ROSARIO BRIGIDA GALLANOSA, children of the
late SIKATUNA GALLANOSA, son of Pedro D.H. GALLONOSA, petitioners,
vs.
HON. UBALDO Y. ARCANGEL, Judge of Branch I of the Court of First Instance of Sorsogon
and FLORENTINO G. HITOSIS, CASIANO G. HITOSIS, TEOTIMO G. HITOSIS, VICTORIO G.
HITOSIS, EMILIA G. HITOSIS VDA. DE CRUZ, JOAQUIN R. HITOSIS VDA. DE CRUZ, JOAQUIN
R. HITOSIS, FLORENTINO R. HITOSIS, VIRGINIA R. MITOSIS, DEBORAH R. HITOSIS,
EDILBERTO R. HITOSIS, LEONOR R. HITOSIS, NORMA R. HITOSIS-VILLANUEVA, LEONCIO R.
HITOSIS, minors ANGEL R. HITOSIS and RODOLFO R. HITOSIS, represented by their legal
guardian and mother LOURDES RELUCIO VDA. DE HITOSIS, PETRONA HITOSIS-BALBIDO,
MODESTO HITOSIS-GACILO, CLETO HITOSIS, AGUSTIN HITOSIS-FORTES, TOMASA
HITOSIS-BANARES VDA. DE BORRAS, CONRADA HITOSIS-BANARES FRANCHE,
RESTITUTO HITOSIS-BANARES, DAMIAN HITOSIS-BANARES, FIDEL HITOSIS-BANARES,
SUSANA HITOSIS-BANARES RODRIGUEZ, JOSE HITOSIS, LOLITA HITOSIS-BANEGA, minors
MILAGROS HITOSIS-BANEGA, ALICIA HITOSIS-BANEGA AND ELISA HITOSIS-BANEGA,
represented by their legal guardian and father ERNESTO BANEGA, FELICITAS HITOSISPENAFLOR, 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 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 for- the purpose of
contesting the probate of the will of (the) late Florentino Hitosis; trial had their
opposition prospered trial the will denied of probate, the proceedings would have
been converted into one of intestacy (Art. 960 Civil Code) and the settlement of the
estate of the said deceased would have been made in accordance with the
provisions of law governing legal or intestate succession ... , in which case the said
plaintiffs, as the nearest of kin or legal heirs of said Florentino Mitosis, would have
succeeded to the ownership and possession of the 61 parcels of land in question
forming part of his estate (art. 1003, Civil Code).
However, the derision of the Court was adverse to them, when it their opposition trial
ordered the probate of his will. From this decision (Annex K) legalizing the said will,
the oppositors did not file any appeal within the period fixed by law, despite the fact
that they were duly notified thereof, so that the said decision had become final trial it
now constitutes a bar to any action that the plaintiffs may institute for the purpose of
a redetermination of their rights to inherit the properties of the late Florentino Hitosis.
In other words, the said decision of this Court in Civil Case special ) No. 3171, in
which the herein plaintiffs or their predecessors-in-interest had intervened as parties
oppositors, constitutes a final judicial determination of the issue that the said
plaintiffs, as ordinary heirs, have no legal rights to succeed to any of the properties of

the late Florentino Hitosis; consequently, their present claim to the ownership trial
possession of the 61 parcels of land in question is without any legal merit or basis.
7. The plaintiffs did not appeal from that order of dismissal which should have set the matter at rest.
But the same plaintiffs or oppositors to the probate of the will, trial their heirs, with a persistence
befitting a more meritorious case, filed on September 21, 1967, or fifteen years after the dismissal of
Civil Case No. 696 trial twenty-eight years after the probate of the will another action in the same
court against the Gallanosa spouses trial Adolfo Fortajada for the "annulment" of the will of
Florentino Hitosis trial and for the recovery of the same sixty-one parcels of land. They prayed for the
appointment of a receiver.
8. As basis of their complaint, they alleged that the Gallanosa spouses, through fraud trial deceit,
caused the execution trial simulation of the document purporting to be the last will trial testament of
Florentino Hitosis. While in their 1952 complaint the game plaintiffs alleged that they were in
possession of the lands in question, in their 1967 complaint they admitted that since 1939, or from
the death of Florentino Hitosis, the defendants (now the petitioners) have been in possession of the
disputed lands (Par. XIV of the complaint, p. 70, Rollo in Civil Case No. 555, Gubat Branch, which
was transferred to Branch I in Sorsogon town where Special Proceeding No. 3171 trial Civil Case
No. 696 were decided trial which was re-docketed as Civil Case No. 2233).
9. As already stated, that 1967 complaint, upon motion of the defendants, now the petitioners, was
dismissed by respondent Judge. The plaintiffs filed a motion for reconsideration Respondent Judge.
granted it trial set aside the order of dismissal. He denied defendants' motion for the reconsideration
of his order setting aside that dismissal order.
The petitioners or the defendants below contend in this certiorari case that the lower court has no
jurisdiction to set aside the 1939 decree of probate trial the 1952 order of dismissal in Civil Case No.
696 trial that it acted with grave abuse of discretion in not dismissing private respondents' 1967
complaint.
The issue is whether, under the facts set forth above, the private respondents have a cause of action
the "annulment" of the will of Florentino Hitosis trial for the recovery of the sixty-one parcels of land
adjudicated under that will to the petitioners.
We hold that the lower court committed a grave abuse of discretion in reconsideration its order of
dismissal trial in ignoring the 1939 testamentary case trial the 1952 Civil Case No. 696 which is the
same as the instant 1967 case.
A rudimentary knowledge of substantive law trial procedure is sufficient for an ordinary lawyer to
conclude upon a causal perusal of the 1967 complaint that it is baseless trial unwarranted.
What the plaintiffs seek is the "annulment" of a last will trial testament duly probated in 1939 by the
lower court itself. The proceeding is coupled with an action to recover the lands adjudicated to the
defendants by the same court in 1943 by virtue of the probated will, which action is a resuscitation of
The complaint of the same parties that the same court dismissed in 1952.
It is evident from the allegations of the complaint trial from defendants' motion to dismiss that
plaintiffs' 1967 action is barred by res judicata, a double-barrelled defense, trial by prescription,
acquisitive trial extinctive, or by what are known in the jus civile trial the jus
gentium as usucapio, longi temporis possesio and praescriptio (See Ramos vs. Ramos, L-19872,
December 3, 1974, 61 SCRA 284).
Our procedural law does not sanction an action for the "annulment" of a will. In order that a will may
take effect, it has to be probated, legalized or allowed in the proper testamentary proceeding. The
probate of the will is mandatory (Art. 838, Civil Code; sec. 1, Rule 75, formerly sec. 1, Rule 76, Rules
of Court; Guevara vs. Guevara, 74 Phil. 479; Guevara vs. Guevara, 98 Phil. 249).

The testamentary proceeding is a special proceeding for the settlement of the testator's estate. A
special proceeding is distinct trial different from an ordinary action (Secs. 1 trial 2, Rule 2 trial sec. 1,
Rule 72, Rules of Court).
We say that the defense of res judicata, as a ground for the dismissal of plaintiffs' 1967 complaint, is
a two-pronged defense because (1) the 1939 trial 1943 decrees of probate trial distribution in
Special Proceeding No. 3171 trial (2) the 1952 order of dismissal in Civil Case No. 696 of the lower
court constitute bars by former judgment, Rule 39 of the Rules of Court provides:
SEC. 49. Effect of judgments. The effect of a judgment or final order rendered by
a court or judge of the Philippines, having jurisdiction to pronounce the judgment or
order, may be as follows:
(a) In case of a judgment or order against a specific thing, or in respect to the
probate of a will or the administration of the estate of a deceased person, or in
respect to the personal, political, or legal condition or status of a particular person or
his relationship to another, the judgment or order is conclusive upon the title to the
thing the will or administration, or the condition, status or relationship of the person;
however, the probate of a will or granting of letters of administration shall only be
prima facie evidence of the death of the testator or intestate;
(b) In other cases the judgment or order is, with respect to the matter directly
adjudged or as to any other matter that could have been raised in relation thereto,
conclusive between the parties trial their successors in interest by title subsequent to
the commencement of the action or special proceeding, litigating of the same thing
trial under the same title trial in the same capacity;
(c) In any other litigation between the same parties or their successors in interest,
that only is deemed to have been adjudged in a former judgment which appears
upon its face to have been so adjudged, or which was actually trial necessarily
included therein or necessary thereto.
The 1939 decree of probate is conclusive as to the due execution or formal validity of the will (Sec.
625, Act 190, sec. 1, Rule 76, now sec. 1, Rule 75, Rules of Court; Last par. of art. 838, Civil Code).
That means that the testator was of sound trial disposing mind at the time when he executed the will
and was not acting under duress, menace, fraud, or undue influence; that the will was signed by him
in the presence of the required number of witnesses, and that the will is genuine trial is not a forgery.
Accordingly, these facts cannot again be questioned in a subsequent proceeding, not even in a
criminal action for the forgery of the will. (3 Moran's Comments on the Rules of Court, 1970 Edition,
p. 395; Manahan vs. Manahan, 58 Phil. 448).
After the finality of the allowance of a will, the issue as to the voluntariness of its execution cannot be
raised anymore (Santos vs. De Buenaventura, L-22797, September 22, 1966, 18 SCRA 47).
In Austria vs. Ventenilla, 21 Phil. 180, a "petition for annulment of a will" was not entertained after the
decree of probate had become final. That case is summarized as follows:
Wills; Probate; Alledged Fraudulent Will; Appeal. V. died. His will was admitted to
probate without objection. No appeal was taken from said order. It was admitted that
due trial legal notice had been given to all parties. Fifteen months after the date of
said order, a motion was presented in the lower court to have said will declared null
and void, for the reason that fraud had been practised upon the deceased in the
making of his will.
Held: That under section 625 of Act No. 190, the only time given parties who are
displeased with the order admitting to probate a will, for an appeal is the time given

for appeals in ordinary actions; but without deciding whether or not an order
admitting a will to probate will be opened for fraud, after the time allowed for an
appeal has expired, when no appeal is taken from an order probating a will, the heirs
can not, in subsequent litigation in the same proceedings, raise questions relating to
its due execution. The probate of a will is conclusive as to its due execution trial as to
the testamentary capacity of The testator. (See Austria vs. Heirs of Ventenilla. 99
Phil. 1069).
On the other hand, the 1943 decree of adjudication rendered by the trial court in the testate
proceeding for the settlement of the estate of Florentino Hitosis, having been rendered in a
proceeding in rem, is under the abovequoted section 49(a), binding upon the whole world (Manalo
vs. Paredes, 47 Phil. 938; In re Estate of Johnson, 39 Phil. 156; De la Cerna vs. Potot, 120 Phil.
1361, 1364; McMaster vs. Hentry Reissmann & Co., 68 Phil. 142).
It is not only the 1939 probate proceeding that can be interposed as res judicata with respect to
private respondents' complaint, The 1952 order of dismissal rendered by Judge 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 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 voidcontracts, 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.

Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION

G.R. No. 108581 December 8, 1999

LOURDES L. DOROTHEO, petitioner,
vs.
COURT OF APPEALS, NILDA D. QUINTANA, for Herself and as Attorney-in-Fact of VICENTE
DOROTHEO and JOSE DOROTHEO, respondents.

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 government. 1
Petitioner moved for reconsideration arguing that she is entitled to some compensation since she
took care of Alejandro prior to his death although she admitted that they were not married to each
other. Upon denial of her motion for reconsideration, petitioner appealed to the Court of Appeals, but
the same was dismissed for failure to file 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 Alejandro.
The petition is without merit. A final and executory decision or order can no longer be disturbed or
reopened no matter how erroneous it may be. In setting aside the January 30, 1986 Order that has
attained finality, the trial court in effect nullified the entry of judgment made by the Court of Appeals.
It is well settled that a lower court cannot reverse or set aside decisions or orders of a superior court,
for to do so would be to negate the hierarchy of courts and nullify the essence of review. It has been
ruled that a final judgment on probated will, albeit erroneous, is binding on the whole world. 4
It has been consistently held that if no appeal is taken in due time from a judgment or order of the
trial court, the same attains finality by mere lapse of time. Thus, the order allowing the will became
final and the question determined by the court in such order can no longer be raised anew, either in
the same proceedings or in a different motion. The matters of due execution of the will and the
capacity of the testator acquired the character ofres 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 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 forumshopping. 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 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.