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ARTICLE

838
Guevara v Guevara
F: Ernesto Guevara and Rosario Guevara, legitimate son and natural daughter,
respectively, of the deceased Vcitorino Guevara. The action was commenced by
Rosario to recover from Ernesto what she claims to be her strict legitime as an
acknowledged natural daughter of Victorino. Ernesto answered that whatever
rights Rosario might have had, had been barred by operation of law.

It appears that Victorino executed a will, apparently with all the formalities of
the law, when he made bequests to: stepdaughter Candida, to his son Ernesto, a
mi hija Rosario Guevara, stepson, wife, and also made devises to them, a
residential lot. He set aside 100 hectares of the same parcel to be disposed
either by him during his lifetime or by his attorney in fact Ernesto in order to
pay all his pending debts and to defray expenses and those of his family up to
the time of his death.

Victorino died. His last will and testament, however, was never presented to the
court for probate, nor has any administration proceeding even been instituted
for the settlement of his estate. Ever since Victorinos death, Ernesto appears to
have possessed the land and disposed various portions thereof for the purpose
of defraying debts left by his father.

Rosario, who appears to have had her fathers will in her custody, did nothing to
judicially invoke the testamentary dispositions made therein in her favor. But
after over 4 years of the testators demise, she commenced the present action
and it was only during the trial that she presented the will only to prove that
Victorino acknowledged her as his natural daughter. She claims her share of
inheritance from Ernesto, but on the theory that Victorino died intestate,
because the will was not presented for probate. Both TC and CA sustained the
theory. SC reversed.

D: The proceeding for 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, 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, 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. (Sec 12, Rule 77, and Sec 624, CCP)

The presentation of a will to the court for probate is mandatory and tis
allowance by the court is essential and indispensable to its efficacy. The law
punishes a person who neglects his duty to present it to the court with a fine not

exceeding P2k, and should he persist in not presenting it, he may be committed
to prison and kept there until he delivers the will.

Sec 1, Rule 74 provide that if the decedent left no debts, and the heirs and
legates are all of age or are represented by their judicial guardians, they may
divide the estate among themselves as they see fit by means of a public
instrument. This rule is a modification of Sec 596 of CCP which provide that
when there are no debts, the heirs may divide the estate among themselves if
the decedent is intestate. The omissions of the word intestate and the use of the
word legatees imply that an extrajudicial settlement may be had even if the
decedent died testate. The court does not agree.

Rule 74 in relation to Rule 76, if the decedent left a will and no debts and the
heirs and legates desire to make an extrajudicial partition of the estate, they
must first present the will for probate and divide the estate in accordance with
the will. Legatees and devisees 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.

De la Cerna v. Potot
F: In May 1939, Spouses Bernabe de la Cerna and Gervasia Rebaca instituted a
joint will (which even back then, at the time of their execution of such will, was
prohibited by law). In the will, they stated that: (1) their 2 parcels of land
acquired during their marriage plus all improvements thereon be given to their
niece Manuela Rebaca, because they were childless, and; (2) the testatorsspouses will continue to enjoy the fruits of the lands as long as they were living.
Bernabe de la Cerna died in August 1939. Will was submitted to probate, and
was allowed probate by the CFI of Cebu. Gervasia died. A petition for the probate
of the will of Gervasia was filed. CFI ordered the petition null and void for being
contrary to the prohibition of joint wills. Niece Manuela appealed. CA reversed
CFI and said that the decree probating the will in August 1939 was conclusive
on the due execution of the testament, because even though prohibited, it has
been sanctioned by use, and continued to be used, and when such has been
already admitted to probate by final order of a court of competent jurisdiction,
there is no alternative but to give effect to provisions therein not contrary to
law. The intestate heirs of Bernabe appealed. SC agreed with the CA but that it
was valid only with respect to the share of the deceased husband Bernabe de la
Cerna, and not Gervasia, who was then still alive, and over whose interest in the
conjugal properties the probate court acquired no jurisdiction (prior to the new
Civil Code, a will cannot be probated during the testator's lifetime). Estate of
wife Gervasia must be re-examined on her death and adjudicated de novo.

D: A final judgment rendered on a petition for the probate of a will is binding
upon the whole world, 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. The 1939 decree admitted de la Cerna's will to

probate. There, the Court had spoken with finality that the will is valid and must
be allowed when the will was probated in 1939.

Gallanosa v Arcangel
F: In 1939, petition for probate of the will of Florentino Hitosis (testator) was
filed by Gallanosa (testators stepson); this was opposed by the testators
surviving brother (Leon), nieces and nephews. Oppositors did not present
evidence to support their opposition so probate was allowed; they did not
appeal the decision. In 1943, the 1941 project of partition and distribution of
various properties (including 61 parcels of land, cattle, and personal properties)
in accordance w/ Florentinos will was approved by the court; there was no
appeal from this decision. In 1952, Leon Hitosis and the heirs of Florentino's
deceased brothers and sisters filed an action for recovery of the 61 parcels of
land; this was dismissed on the ground of bar by the prior judgment in the
probate proceeding. In 1967, the same oppositors to the 1939 petition for
probate and plaintiffs in the 1952 case filed an action for "annulment" of
Florentinos will and for recovery of the same 61 parcels of land, alleging fraud
and deceit attendant to the execution of the will. While at first the action was
dismissed at Gallanosas motion, the dismissal was reversed upon
reconsideration. SC affirmed the order of dismissal of the 1967 action, since it
was barred by res judicata (by virtue of the 1939, 1943 and 1952 judgments).

D: The 1939 decree of probate is conclusive as to the due execution or formal
validity of the will. That means that the testator was of sound and 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 and
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.
After the finality of the allowance of a will, the issue as to the voluntariness of its
execution cannot be raised anymore.

Note: the 1943 decree of adjudication for the settlement of Florentinos estate,
having been rendered in a proceeding in rem, binding upon the whole world. The
1952 order of dismissal in the civil case for recovery, a judgment in personam, was
an adjudication on the merits.

Nepomuceno v CA
F: Martin Jugo left a last will and testament where he named and appointed
Petitioner Sofia Nepomuceno as his sole and only executor of his estate. The will
clearly stated that Martin was legally married to Respondent Rufina Gomez by
whom he had two legitimate children (Article III will) but since 1952, he had
been estranged from Rufina and had been living with petitioner as husband and
wife (Article IV) (they got married in 1952). Martin devised his entire estate to
Rufina and his children, and the free portion to petitioner. Petitioner then filed
for petition for probate of the will and asked for the issuance to her of letters

testamentary; this was opposed by Rufina and her children alleging among
others that petitioner, having admitted her living in concubinage with Martin, is
wanting in integrity, and cannot be issued letters testamentary. Probate was
denied on the ground that as Martin admitted in his will to cohabiting with
Petitioner until his death, the wills admission to probate would be futile, since
on the face of the will, the invalidity of its intrinsic provisions is evident. CA set
aside CFI decision denying probate and declared the will valid except that the
devise in favour of Petitioner is null and void pursuant to Article 739 in relation
to Article 1028.

Petitioner: validity of provision in her favour cannot be passed upon and
decided in the probate proceedings but in some other proceedings because the
only purpose of probate of will is to establish conclusively against everyone that
a will was executed according to law and that the testator has mental capacity
to execute such. The declaration of nullity could only be made by a proper court
in a separate action brought by the legal wife.

Respondent: the fact that the will expressly admits indubitably on its face the
relationship between testator and petitioner and the fact that petitioner herself
initiated the presentation of evidence on her alleged ignorance of the true civil
status of testator merit the application of doctrine in Nuguid v Nuguid. Also,
admission of illicit relationship puts in issue the legality of devise.

D: The issue is WON CA acted in excess of jurisdiction when after declaring the
last will validly drawn, it went on to pass upon the intrinsic validity of the
provision in favour of petitioner.

General Rule: in probate proceedings, courts area of inquiry is limited to an
examination and resolution of the extrinsic validity of will rule is not
inflexible and absolute.

Exception: Where practical considerations demand that the intrinsic validity of
the will be assed upon, even before it is probated, the court should meet the issue.

CA was correct. Records show the fact of a prior existing marriage when Martin
executed his will, and that he lived with petitioner for 22 years until his death.
Petitioner contended that she acted in good faith for those years in the belief
that she was legally married to Martin. Court said there was no good faith since
(1) last will admits on its fact the relationship and (2) petitioner herself
initiated the presentation of evidence on her alleged ignorance. In short, the
parties themselves duelled on the intrinsic validity of the legacy.

Moreover, Article 739 CC is against making a donation between two persons
who are living in adultery or concubinage. The very wordings of the will
invalidate the legacy since Martin admitted that he was disposing his properties
to a person with whom he had been living in concubinage.

ARTICLE 850
Austria v Reyes

F: Basilia Austria Vda. de Cruz filed a petition for probate of her own will,
ante mortem. In the said will, she instituted Cruz, et al., as heirs whom
she assumed and declared as her legally adopted children. This was
opposed by Basilias nephews and nieces (Austria, et al.) who are her
nearest surviving blood relatives. Probate was allowed and Basilia died
two years later. Austria assails the institution of Cruz, et al., as Basilias
heirs, questioning the validity of their legal adoption by Basilia. (the
validity of the adoption, as Austria contends, is relevant, for Basilias estate
would go to them by intestacy if it is proved that the adoption of Cruz, et al.,
was not valid, them being strangers). Austria, et al., argue that the tenor
of the language used (use of the words "sapilitang tagapagmana"
(compulsory heirs) and "sapilitang mana" (legitime )) gives rise to the
inference that the late Basilia was deceived into believing that she was
legally bound to bequeath 1/2 of her entire estate to Cruz, et al., as the
latter's legitime. They further contend that had Basilia known the
adoption to be spurious, she would not have instituted Cruz, et al., at all,
the basis of the institution being solely her belief that they were
compulsory heirs. SC ruled against Austria, stating that that the
decedent's will does not state in a specific or unequivocal manner the
cause for such institution of heirs and the Court cannot annul the same
on the basis of guesswork or uncertain implications

D: Before the institution of heirs may be annulled under Art. 850, the ff.
requisites must concur: (1) the cause for the institution of heirs must be
stated in the will; (2) the cause must be shown to be false; and (3) it
must appear from the face of the will that the testator would not have
made such institution if he had known the falsity of the cause.

Where the decedent's will does not state in a specific or unequivocal
manner the cause for such institution of heirs, the will cannot be
annulled under Article 850 of the Civil Code. Such institution may be
annulled only when it is clear, after an examination of the will that the
testator clearly would not have made the institution if he had known the
cause for it to be false. No certainty that the children were
not adopted. Hence 2nd requisite not

present.
ARTICLE 854
Reyes v Barretto-Datu
F: Bibiano Barretto was married to Maria Gerardo. During their lifetime, they
acquired a vast estate consisting properties in Manila, Pampanga and Bulacan.
When Bibiano died in 1936, he left his share of properties in a will to Salud

Barretto, mother of plaintiffs wards, and defendant Milagros Barretto; small


portion as legacies to his two sisters, nephew and nieces. However, the fishpond
in Bulacan was reserved for his widow, Maria. Maria was appointed
administratix. She prepared a project of partition signed by her in her own
behalf and as guardian of minor Milagros; partition approved, and the
distribution of the estate and delivery of shares followed after. As a
consequence, Salud took immediate possession of her share and secured the
cancellation of the original certificates of title and the issuance of new titles in
her name.

Nobody complained of any irregularity in the distribution off estate until widow
Maria died in 1948. It was discovered that she executed two wills (1) First,
instituted Salud and Milagros as heirs, (2) Second, revoked the first and left all
her properties in favour of Milagros alone. Second will was allowed and the first
rejected. In rejecting the first will presented by plaintiff, lower court held that
Salud was not the daughter of Maria by her husband Bibiano.

Because of this, plaintiff falls back upon the remnant of the estate of Bibiano,
and is claiming for the recovery of one-half portion thereof. Defendant claimed
ownership of all the other properties willed and delivered to Salud for being a
spurious heir, and not entitled to any share in Bibianos estate. Defendant
claimed that the partition was void, and that the court did not acquire any
jurisdiction over defendant who was then a minor.

LC ruled in her favour and declared partition void since Salud was not a
daughter of the spouses. The nullity was decreed on the basis of Article 1081
old CC. It further rejected plaintiffs contention that since Bibiano was free to
dispose 1/3 of his estate under old CC, his will was valid in favour of Salud to
the extent of such free part. LC concluded that since Milagros was the only true
heir, she was entitled to recover from Salud.

D: LC misapplied Article 1081 for the obvious reason that Salud admittedly had
been instituted heir in Bibianos will together with Milagros; hence the partition
between them could not be one such had with a party who was not believed to
be an heir without really being one, and was not null and void. Legal precept
(Article 1081) does not speak of children/descendants, but of heirs, and the fact
that Salud was not their daughter does not preclude her being one of the heirs
expressly named in will, since Bibiano can assign the free portion of his estate to
whomever he chose. While the share assigned to Salud impinged on Milagros
legitime, Salud did not cease to be a testamentary heir of Bibiano.

Important part: Nor does that fact that Milagros was allotted in her fathers will
a share smaller than her legitime invalidate the institution of Salud as heir, since
there was here no preterition, or total omission, of a forced heir.

NOTE: (1) compulsory heir in the direct line (2) such heir was instituted in the
will (3) the testamentary disposition given to such heir was less than her
legitime No preterition since no total omission, inasmuch as the heir received
something from the inheritance. Remedy is in Article 906 and 907.

Aznar v Duncan
F: Edward Christensen died leaving a will. The will was admitted for probate in
Davao and in the same decision the court declared Helen Christensen Garcia as
a natural child of the deceased. In another incident relative to the partition of
the deceaseds estate, the project of partition submitted by the executor was
approved wherein the properties of the estate were divided equally between
Lucy Duncan, whom the testator expressly recognized as his daughter (natural)
and Helen Garcia who had been judicially declared as such after his death. The
said order was based on the proposition that since Helen has been preterited in
the will the institution of Lucy as heir was annulled and hence the properties
passed to both of them as if the deceased died intestate, saving only the legacies
left in favor of some other persons.

Lucy appeals on the sole question of whether the estate, after deducting the
legacies, should pertain to her and Helen in equal shares, or whether the
inheritance of Lucy as instituted heir should be merely reduced to the extent
necessary to cover the legitime of Helen, equivalent to of the estate.

TC maintains that there has been preterition of Helen resulting in the
annulment of the institution of heir pursuant to Art 854 CC. Lucy contends that
this is a case governed by Art 906 CC (Any compulsory heir to whom the
testator has left by any title less than the legitime belonging to him may demand
that the same be fully satisfied).

D: Manresa defines preterition as the omission of the heir in the will, either by
not naming him at all or, while mentioning him as father, son, etc., by not
instituting him as heir without disinheriting him expressly, nor assigning to him
some part of the properties.

The testator refused to acknowledge Helen as his natural daughter, and limited
her share to a legacy of P3,600. The testator did not entirely omit Helen, but left
her a legacy.
Order approving the project of partition set aside. Case remanded with
instructions to partition the hereditary estate anew as indicated in the decision.
Helen to receive no more than the portion corresponding to her as legitime,
equivalent to of the hereditary estate, after deducting all debts and charges,
which shall not include those imposed in the will of the decedent, in accordance
with Art 908 CC.


Acain v. IAC
F: Constantino Acain, together with his brothers and sisters, filed a petition for
the probate of the will of their uncle, the deceased Nemesio Acain. Nemesio had
state in his will that upon his death, all his properties shall go to his brother
Segundo, but that if Segundo predeceases him, then all the properties will go to
the children of Segundo. The children of Segundo had therefore filed for probate.
The oppositors were Virginia Fernandez (legally adopted daughter of decedent
Nemesio) and Rosa Diongson vda. de Acain (Nemesio's widow). They filed a
motion to dismiss saying they were preterited by the will. After several filings,
IAC granted their motion and ordered the TC to dismiss the petition for the
probate of the will of Nemesio. SC held that there was a clear case of preterition
of a legally adopted child (Virginia), because by the institution of Constantino,
etc. as universal heirs, Virginia was totally omitted and preterited in the will,
being a compulsory heir in the direct line (as a descendant of the deceased). As
to the widow Rosa, she was not preterited because Art. 854 does not apply to
her, because even though she is a compulsory heir omitted from the inheritance,
she is not a compulsory heir in the direct line. But she is deprived of at least her
legitime.
D: Under Article 39 of PD 603, known as the Child and Youth Welfare Code,
adoption gives to the adopted person the same rights and duties as if he were a
legitimate child of the adopter and makes the adopted person a legal heir of the
adopter. Preterition consists in the omission in the testator's will of the forced
heirs or anyone of them either because they are not mentioned therein, or,
though mentioned, they are neither instituted as heirs nor are expressly
disinherited.

Nuguid v. Nuguid, et al.
F: Rosario Nuguid died w/o descendants but was survived by her parents and 6
siblings. Remedios (Rosarios sister) filed a petition for probate of Rosarios
alleged holographic will. Rosarios parents opposed probate on the ground of
absolute preterition (they, being compulsory heirs in the direct ascending line,
were excluded when Remedios was instituted as universal heir). Probate
petition was dismissed on the ground that the will was a complete nullity. The
SC affirmed such ruling, since there were no other provisions in the will that
will subsist (such as devises or legacies).

D: Where the deceased left no descendants, legitimate or illegitimate, but she
left forced heirs in the direct ascending line----her parents, and her holographic
will does not explicitly disinherit them but simply omits their names altogether,
the case is one of preterition of the parents, not a case of ineffective
disinheritance.

Where the one-sentence will institutes the petitioner as the sole, universal heir
and preterits the parents of the testatrix, and it contains no specific legacies or

bequests, such universal institution of petitioner, by itself, is void. And intestate


succession ensues.

Legacies and devises merit consideration only when they are so expressly given
as such in a will. Nothing in Article 854 of the New Civil Code 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

Preterition vs. 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." . Disinheritance, in turn, "is a testamentary
disposition depriving any compulsory heir of his share in the legitime for a
cause authorized by law." Disinheritance is always ''"voluntary''; preterition,
upon the other hand, is presumed to be "involuntary.

Preterition "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", but only
''insofar as it may prejudice the person disinherited", which last phrase was
omitted in the case of preterition. In disinheritance the nullity is limited to that
portion of the estate of which the disinherited heirs have been illegally deprived.
(Discussion on this matter was made since Remedios argued that this was a case
of ineffective disinheritance rather than preterition)

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