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. 1âwphïl.nêt
 THIRD DIVISION

CRESENCIANA TUBO G.R. No. 175720

RODRIGUEZ (now deceased),
substituted by SUSANA A. LLAGAS,
Petitioner, Present:
Ynares-Santiago, J. (Chairperson),
- versus - Austria-Martinez,
Chico-Nazario,
Nachura, and
Reyes, JJ.
EVANGELINE RODRIGUEZ,
BELEN RODRIGUEZ and Promulgated:
BUENAVENTURA RODRIGUEZ,
Respondents. September 11, 2007

x ---------------------------------------------------------------------------------------- x

DECISION
YNARES-SANTIAGO, J.:

This petition for review on certiorari assails the Decision[1] of the Court of Appeals
in CA-G.R. SP No. 91442 dated June 27, 2006, which set aside the Decision of the
Regional Trial Court (RTC) of Makati City, Branch 134, in Civil Case No. 03-517,
and reinstated the Decision of the Metropolitan Trial Court (MTC) of Makati City,
Branch 63, in Civil Case No. 75717, dismissing the complaint for ejectment; as well
as the Resolution denying the motion for reconsideration.

Juanito Rodriguez owned a five-door apartment located at San Jose Street,

Guadalupe Nuevo, Makati City, and covered by TCT No. 144865.[2] On October 27,
1983, Juanito executed a Huling Habilin at Testamento giving petitioner
Cresenciana Tubo Rodriguez, his live-in partner, apartments D and E, and his
children Benjamin Rodriguez (the deceased husband of respondent Evangeline
Rodriguez), apartment A, respondent Buenaventura Rodriguez, apartment B, and
respondent Belen Rodriguez, apartment C.[3]
 However, on June 14, 1984, Juanito executed a Deed of Absolute Sale over
the property in favor of petitioner.[4] Thus, TCT No. 144865 was cancelled and a
new TCT No. 150431 was issued in the name of the petitioner.[5]

The case arose when petitioner filed on September 20, 2001 a complaint for
unlawful detainer against the respondents, alleging that she is the lawful and
registered owner of the property; and that in 1984, she allowed respondents
Evangeline, Buenaventura and Belen, out of kindness and tolerance, to personally
occupy units A, B and D, respectively. However, without her knowledge and
consent, respondents separately leased the units to Montano Magpantay, Mel
Navarro and Socorro Escota, who despite repeated demands, failed and refused to
vacate the premises and to pay the rentals thereof.[6]

In their Answer, respondents claimed ownership over the subject property by

succession.They alleged that while petitioner is the registered owner of the property,
however, she is not the lawful owner thereof because the June 14, 1984 Deed of
Absolute Sale was simulated and void. As in Civil Case No. 01-1641 now pending
before the RTC of Makati City, Branch 141, which they filed to assail the validity
of the said sale, respondents maintain that petitioner exerted undue influence over
their father, who at that time was seriously ill, to agree to the sale of the property for
only P20,000.00 after knowing that only two apartments were given to her in
the Huling Habilin at Testamento. Further, she had no cause of action against them
for being a party to the August 23, 1990 Partition Agreement wherein they
recognized each other as co-owners and partitioned the property in accordance with
the provision of the last will and testament.[7]

On February 26, 2002, the MTC rendered a judgment in favor of the respondents
and held that the deed of sale was simulated otherwise petitioner would not have
entered into the Partition Agreement, which legally conferred upon each heir
exclusive ownership over their respective shares, thus:

WHEREFORE, the Complaint is DISMISSED. Plaintiff is ordered

to pay attorneys fees of P10,000.00 and the costs of suit in favor of
defendants.
 SO ORDERED.[8]

On appeal, the RTC reversed the decision of the MTC. It held that petitioners
certificate of title is a conclusive evidence of ownership of the land described therein;
and that unless and until said title has been annulled by a court of competent
jurisdiction, such title is existing and valid. This is true also with respect to the deed
of sale. The present action, which involves only the issue of physical or material
possession, is not the proper action to challenge it. Further, the MTC erred when it
relied heavily on the Huling Habilin at Testamento, which was not probated hence
has no effect and no right can be claimed therein. The Partition Agreement which
was allegedly entered into pursuant to the Huling Habilin at Testamento should not
also be considered. Thus:

WHEREFORE, premises considered, the decision rendered by the

Metropolitan Trial Court, Branch 63, Makati City, is hereby ordered
REVERSED AND SET ASIDE.Consequently, judgment is hereby
rendered ordering the defendants and all persons claiming rights under
them to vacate the premises and surrender the possession thereof to the
plaintiff. Defendants are likewise ordered to pay jointly and severally the
plaintiff an amount of P5,000.00 a month per unit beginning 13 August
2001 until they finally vacate the premises and the costs of this suit.

SO ORDERED.[9]

Aggrieved, respondents filed a petition for review before the Court of Appeals
which reversed and set aside the decision of the RTC and reinstated the decision of
the MTC. It held that the MTC correctly received evidence on ownership since the
question of possession could not be resolved without deciding the issue of
ownership. Further, the Huling Habilin at Testamento transmitted ownership of the
specific apartments not only to the respondents but also to the petitioner; and
pursuant thereto, the parties executed the Partition Agreement in accordance with
the wishes of the testator, thus:

WHEREFORE, this Court resolves to REVERSE and SET ASIDE

the Decision of the Regional Trial Court. The decision dated February 26,
2002 of the Metropolitan Trial Court, Branch 63, Makati City in Civil
 Case No. 75717 dismissing the complaint for ejectment is hereby
REINSTATED.

SO ORDERED.[10]

The motion for reconsideration was denied hence, petitioner filed the present petition
for review raising the following errors:

I.

THE COURT OF APPEALS COMMITTED A REVERSIBLE ERROR

OF LAW AND GRAVE ABUSE OF DISCRETION IN REVERSING
AND SETTING ASIDE THE DECISION OF THE REGIONAL TRIAL
COURT AND REINSTATING THE DECISION OF THE
METROPOLITAN TRIAL COURT DISMISSING PETITIONERS
COMPLAINT FOR UNLAWFUL DETAINER.

II.

THE COURT OF APPEALS COMMITTED A REVERSIBLE ERROR

OF LAW AND GRAVE ABUSE OF DISCRETION IN DECLARING
THAT THE PROPERTY, A PARCEL OF LAND UPON WHICH A
FIVE-UNIT APARTMENT STANDS, BECAME THE SUBJECT OF
JUANITO RODRIGUEZS HULING HABILIN AT
TESTAMENTO WHEREIN THE PROPERTY WAS DISTRIBUTED TO
HIS HEIRS (HEREIN RESPONDENTS) INCLUDING THE
RESPONDENT (PETITIONER HEREIN).[11]

Petitioner alleges that as the registered owner of the subject property, she
enjoys the right of possession thereof and that question of ownership cannot be
raised in an ejectment case unless it is intertwined with the issue of
possession. While the court may look into the evidence of title or ownership and
possession de jure to determine the nature of possession, it cannot resolve the issue
of ownership because the resolution of said issue would effect an adjudication on
ownership which is not proper in the summary action for unlawful
detainer. Petitioner insists that the Court of Appeals erred in ruling that the Huling
Habilin at Testamento transmitted ownership of the specific apartments disregarding
the fact that the same is not probated yet and that the testator changed or revoked his
will by selling the property to petitioner prior to his death.

Contrarily, respondents pray that the instant petition for review be dismissed since
the resolution of the question of ownership by the MTC and the Court of Appeals
was provisional only to resolve the issue of possession. Petitioner can always avail
of legal remedies to have the issue of ownership passed upon by the proper
court. Aware of the provisional nature of the resolution on ownership in ejectment
cases, respondents filed Civil Case No. 01-1641 to assail the validity of the deed of
sale of the property and the registration thereof in petitioners name.

The petition has merit.

An action for unlawful detainer exists when a person unlawfully withholds

possession of any land or building against or from a lessor, vendor, vendee or other
persons, after the expiration or termination of the right to hold possession, by virtue
of any contract, express or implied.[12] The sole issue to be resolved is the question
as to who is entitled to the physical or material possession of the premises or
possession de facto.[13] Being a summary proceeding intended to provide an
expeditious means of protecting actual possession or right to possession of property,
the question of title is not involved[14] and should be raised by the affected party in
an appropriate action in the proper court.[15]

However, when the issue of ownership is raised the court is not ousted of its
jurisdiction. Section 16 of Rule 70 of the Rules of Court provides:

SEC 16. Resolving defense of ownership. When the defendant

raises the defense of ownership in his pleadings and the question of
possession cannot be resolved without deciding the issue of ownership,
the issue of ownership shall be resolved only to determine the issue of
possession.

Thus, all that the trial court can do is to make an initial determination of who is the
owner of the property so that it can resolve who is entitled to its possession absent
other evidence to resolve ownership.[16] But this adjudication is only provisional and
does not bar or prejudice an action between the same parties involving title to the
property.[17]

In the case at bar, petitioners cause of action for unlawful detainer was based
on her alleged ownership of land covered by TCT No. 150431 and that she merely
tolerated respondents stay thereat. However, when respondents leased the
apartments to other persons without her consent, their possession as well as those
persons claiming right under them became unlawful upon their refusal to vacate the
premises and to pay the rent. On the other hand, respondents assailed petitioners title
by claiming that the deed of sale upon which it was based was simulated and
void. They insisted that they were co-owners thus, they have the right to possess the
said property. To prove their claim, they presented the Huling Habilin at
Testamento of Juanito Rodriguez and the Partition Agreement.

The lower courts considered the following documentary evidence in arriving

at their respective decisions, albeit the RTC decision contradicts that of the MTC
and Court of Appeals: 1) Huling Habilin at Testamento executed by Juanito
Rodriguez on October 27, 1983; 2) Deed of Sale of the property executed by Juanito
Rodriguez and the petitioner on June 14, 1984; 3) TCT No. 150431 in the name of
the petitioner; and 4) the August 23, 1990 Partition Agreement executed by both the
respondents and the petitioner.

Based on the foregoing documentary evidence, we find that there is

preponderance of evidence in favor of the petitioners claim. Respondents failed to
prove their right of possession, as the Huling Habilin at Testamento and the Partition
Agreement have no legal effect since the will has not been probated. Before any will
can have force or validity it must be probated. This cannot be dispensed with and is
a matter of public policy.[18] Article 838 of the Civil Code mandates that [n]o will
shall pass either real or personal property unless it is proved and allowed in
accordance with the Rules of Court. As the will was not probated, the Partition
Agreement which was executed pursuant thereto can not be given effect. Thus, the
fact that petitioner was a party to said agreement becomes immaterial in the
determination of the issue of possession.

Moreover, at the time the deed of sale was executed in favor of the petitioner,
Juanito Rodriguez remained the owner thereof since ownership would only pass to
his heirs at the time of his death. Thus, as owner of the property, he had the absolute
right to dispose of it during his lifetime. Now, whether or not the disposition was
valid is an issue that can be resolved only in Civil Case No. 01-1641, an action
instituted by the respondents for that purpose.

We are, thus, left with the deed of sale and the certificate of title over the property
to consider.

We agree with the RTC that a certificate of title is a conclusive evidence of

ownership of the land described therein; the validity of which shall not be subject to
a collateral attack, especially in an ejectment case which is summary in nature.

In Ross Rica Sales Center, Inc. v. Ong,[19] the Court held that:

The long settled rule is that the issue of ownership cannot be subject
of a collateral attack.

In Apostol v. Court of Appeals, this Court had the occasion to

clarify this:

. . . Under Section 48 of Presidential Decree No. 1529,

a certificate of title shall not be subject to collateral attack. It
cannot be altered, modified or cancelled, except in a direct
proceeding for that purpose in accordance with law. The
issue of the validity of the title of the respondents can only
be assailed in an action expressly instituted for that purpose.
Whether or not the petitioners have the right to claim
ownership over the property is beyond the power of the court
a quo to determine in an action for unlawful detainer.

Further, in Co v. Militar,[20] it was held that:

[T]he Torrens System was adopted in this country because it was believed
to be the most effective measure to guarantee the integrity of land titles
and to protect their indefeasibility once the claim of ownership is
established and recognized.

It is settled that a Torrens Certificate of title is indefeasible and binding

upon the whole world unless and until it has been nullified by a court of
 competent jurisdiction. Under existing statutory and decisional law, the
power to pass upon the validity of such certificate of title at the first
instance properly belongs to the Regional Trial Courts in a direct
proceeding for cancellation of title.

As the registered owner, petitioner had a right to the possession of the

property, which is one of the attributes of ownership. x x x

We emphasize, however, that our ruling on the issue of ownership is only provisional
to determine who between the parties has the better right of possession. It is,
therefore, not conclusive as to the issue of ownership, which is the subject matter of
Civil Case No. 01-1641. Our ruling that petitioner has a better right of possession
was arrived at on the basis of evidence without prejudice to the eventual outcome of
the annulment case, where the issue as to who has title to the property in question is
fully threshed out. As the law now stands, in an ejectment suit, the question of
ownership may be provisionally ruled upon for the sole purpose of determining who
is entitled to possession de facto.

WHEREFORE, in view of the foregoing, the Decision of the Court of Appeals in

CA-G.R. SP No. 91442 dated June 27, 2006 is REVERSED and SET ASIDE. The
Decision of the Regional Trial Court of Makati City, Branch 134, in Civil Case No.
03-517, reversing the Decision of the Metropolitan Trial Court (MTC)
of Makati City, Branch 63, in Civil Case No. 75717, is REINSTATED.

SO ORDERED.

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. 1äwphï1.ñët

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 añade 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.

G.R. No. L-62952 October 9, 1985

SOFIA J. NEPOMUCENO, petitioner,

vs.
THE HONORABLE COURT OF APPEALS, RUFINA GOMEZ, OSCAR JUGO ANG, CARMELITA
JUGO, respondents.

GUTIERREZ, JR., J.:

This is a petition for certiorari to set aside that portion of the decision of the respondent Court of
Appeals (now intermediate Appellate Court) dated June 3, 1982, as amended by the resolution
dated August 10, 1982, declaring as null and void the devise in favor of the petitioner and the
resolution dated December 28, 1982 denying petitioner's motion for reconsideration.

Martin Jugo died on July 16, 1974 in Malabon, Rizal. He left a last Will and Testament duly signed
by him at the end of the Will on page three and on the left margin of pages 1, 2 and 4 thereof in the
presence of Celestina Alejandro, Myrna C. Cortez, and Leandro Leano, who in turn, affixed their
signatures below the attestation clause and on the left margin of pages 1, 2 and 4 of the Will in the
presence of the testator and of each other and the Notary Public. The Will was acknowledged before
the Notary Public Romeo Escareal by the testator and his three attesting witnesses.

In the said Will, the testator named and appointed herein petitioner Sofia J. Nepomuceno as his sole
and only executor of his estate. It is clearly stated in the Will that the testator was legally married to a
certain Rufina Gomez by whom he had two legitimate children, Oscar and Carmelita, but since 1952,
he had been estranged from his lawfully wedded wife and had been living with petitioner as husband
and wife. In fact, on December 5, 1952, the testator Martin Jugo and the petitioner herein, Sofia J.
Nepomuceno were married in Victoria, Tarlac before the Justice of the Peace. The testator devised
to his forced heirs, namely, his legal wife Rufina Gomez and his children Oscar and Carmelita his
entire estate and the free portion thereof to herein petitioner. The Will reads in part:

Art. III. That I have the following legal heirs, namely: my aforementioned legal wife,
Rufina Gomez, and our son, Oscar, and daughter Carmelita, both surnamed Jugo,
whom I declare and admit to be legally and properly entitled to inherit from me; that
while I have been estranged from my above-named wife for so many years, I cannot
deny that I was legally married to her or that we have been separated up to the
present for reasons and justifications known fully well by them:

Art. IV. That since 1952, 1 have been living, as man and wife with one Sofia J.
Nepomuceno, whom I declare and avow to be entitled to my love and affection, for all
the things which she has done for me, now and in the past; that while Sofia J.
Nepomuceno has with my full knowledge and consent, did comport and represent
myself as her own husband, in truth and in fact, as well as in the eyes of the law, I
could not bind her to me in the holy bonds of matrimony because of my
aforementioned previous marriage;

On August 21, 1974, the petitioner filed a petition for the probate of the last Will and Testament of
the deceased Martin Jugo in the Court of First Instance of Rizal, Branch XXXIV, Caloocan City and
asked for the issuance to her of letters testamentary.

On May 13, 1975, the legal wife of the testator, Rufina Gomez and her children filed an opposition
alleging inter alia that the execution of the Will was procured by undue and improper influence on the
part of the petitioner; that at the time of the execution of the Will, the testator was already very sick
and that petitioner having admitted her living in concubinage with the testator, she is wanting in
integrity and thus, letters testamentary should not be issued to her.

On January 6, 1976, the lower court denied the probate of the Will on the ground that as the testator
admitted in his Will to cohabiting with the petitioner from December 1952 until his death on July 16,
1974, the Will's admission to probate will be an Idle exercise because on the face of the Will, the
invalidity of its intrinsic provisions is evident.

The petitioner appealed to the respondent-appellate court.

On June 2, 1982, the respondent court set aside the decision of the Court of First Instance of Rizal
denying the probate of the will. The respondent court declared the Will to be valid except that the
devise in favor of the petitioner is null and void pursuant to Article 739 in relation with Article 1028 of
the Civil Code of the Philippines. The dispositive portion of the decision reads:

WHEREFORE, the decision a quo is hereby set aside, the will in question declared
valid except the devise in favor of the appellant which is declared null and void. The
properties so devised are instead passed on in intestacy to the appellant in equal
shares, without pronouncement as to cost.

On June 15, 1982, oppositors Rufina Gomez and her children filed a "Motion for Correction of
Clerical Error" praying that the word "appellant" in the last sentence of the dispositive portion of the
decision be changed to "appellees" so as to read: "The properties so devised are instead passed on
intestacy to the appellees in equal shares, without pronouncement as to costs." The motion was
granted by the respondent court on August 10, 1982.

On August 23, 1982, the petitioner filed a motion for reconsideration. This was denied by the
respondent court in a resolution dated December 28, 1982.

The main issue raised by the petitioner is whether or not the respondent court acted in excess of its
jurisdiction when after declaring the last Will and Testament of the deceased Martin Jugo validly
drawn, it went on to pass upon the intrinsic validity of the testamentary provision in favor of herein
petitioner.

The petitioner submits that the validity of the testamentary provision in her favor cannot be passed
upon and decided in the probate proceedings but in some other proceedings because the only
purpose of the probate of a Will is to establish conclusively as against everyone that a Will was
executed with the formalities required by law and that the testator has the mental capacity to execute
the same. The petitioner further contends that even if the provisions of paragraph 1 of Article 739 of
the Civil Code of the Philippines were applicable, the declaration of its nullity could only be made by
the proper court in a separate action brought by the legal wife for the specific purpose of obtaining a
declaration of the nullity of the testamentary provision in the Will in favor of the person with whom
the testator was allegedly guilty of adultery or concubinage.

The respondents on the other hand contend that the fact that the last Will and Testament itself
expressly admits indubitably on its face the meretricious relationship between the testator and the
petitioner and the fact that petitioner herself initiated the presentation of evidence on her alleged
ignorance of the true civil status of the testator, which led private respondents to present contrary
evidence, merits the application of the doctrine enunciated in Nuguid v. Felix Nuguid, et al. (17
SCRA 449) and Felix Balanay, Jr. v. Hon. Antonio Martinez, et al. (G.R. No. L- 39247, June 27,
1975). Respondents also submit that the admission of the testator of the illicit relationship between
him and the petitioner put in issue the legality of the devise. We agree with the respondents.

The respondent court acted within its jurisdiction when after declaring the Will to be validly drawn, it
went on to pass upon the intrinsic validity of the Will and declared the devise in favor of the petitioner
null and void.

The general rule is that in probate proceedings, the court's area of inquiry is limited to an
examination and resolution of the extrinsic validity of the Will. The rule is expressed thus:

xxx xxx xxx

 ... It is elementary that a probate decree finally and definitively settles all questions
concerning capacity of the testator and the proper execution and witnessing of his
last Will and testament, irrespective of whether its provisions are valid and
enforceable or otherwise. (Fernandez v. Dimagiba, 21 SCRA 428)

The petition below being for the probate of a Will, the court's area of inquiry is limited
to the extrinsic validity thereof. The testators testamentary capacity and the
compliance with the formal requisites or solemnities prescribed by law are the only
questions presented for the resolution of the court. Any inquiry into
the intrinsic validity or efficacy of the provisions of the will or the legality of any devise
or legacy is premature.

xxx xxx xxx

True or not, the alleged sale is no ground for the dismissal of the petition for probate.
Probate is one thing; the validity of the testamentary provisions is another. The first
decides the execution of the document and the testamentary capacity of the testator;
the second relates to descent and distribution (Sumilang v. Ramagosa, 21 SCRA
1369)

xxx xxx xxx

To establish conclusively as against everyone, and once for all, the facts that a will
was executed with the formalities required by law and that the testator was in a
condition to make a will, is the only purpose of the proceedings under the new code
for the probate of a will. (Sec. 625). The judgment in such proceedings determines
and can determine nothing more. In them the court has no power to pass upon the
validity of any provisions made in the will. It can not decide, for example, that a
certain legacy is void and another one valid. ... (Castaneda v. Alemany, 3 Phil. 426)

The rule, however, is not inflexible and absolute. Given exceptional circumstances, the probate court
is not powerless to do what the situation constrains it to do and pass upon certain provisions of the
Will.

In Nuguid v. Nuguid (17 SCRA 449) cited by the trial court, the testator instituted the petitioner as
universal heir and completely preterited her surviving forced heirs. A will of this nature, no matter
how valid it may appear extrinsically, would be null and void. Separate or latter proceedings to
determine the intrinsic validity of the testamentary provisions would be superfluous.

Even before establishing the formal validity of the will, the Court in Balanay .Jr. v. Martinez (64
SCRA 452) passed upon the validity of its intrinsic provisions.

Invoking "practical considerations", we stated:

The basic issue is whether the probate court erred in passing upon the intrinsic
validity of the will, before ruling on its allowance or formal validity, and in declaring it
void.

We are of the opinion that in view of certain unusual provisions of the will, which are
of dubious legality, and because of the motion to withdraw the petition for probate
(which the lower court assumed to have been filed with the petitioner's authorization)
 the trial court acted correctly in passing upon the will's intrinsic validity even before its
formal validity had been established. The probate of a will might become an Idle
ceremony if on its face it appears to be intrinsically void. Where practical
considerations demand that the intrinsic validity of the will be passed upon, even
before it is probated, the court should meet the issue (Nuguid v. Nuguid, 64 O.G.
1527, 17 SCRA 449. Compare with Sumilang vs. Ramagosa L-23135, December 26,
1967, 21 SCRA 1369; Cacho v. Udan L-19996, April 30, 1965, 13 SCRA 693).

There appears to be no more dispute at this time over the extrinsic validity of the Will. Both parties
are agreed that the Will of Martin Jugo was executed with all the formalities required by law and that
the testator had the mental capacity to execute his Will. The petitioner states that she completely
agrees with the respondent court when in resolving the question of whether or not the probate court
correctly denied the probate of Martin Jugo's last Will and Testament, it ruled:

This being so, the will is declared validly drawn. (Page 4, Decision, Annex A of
Petition.)

On the other hand the respondents pray for the affirmance of the Court of Appeals' decision in toto.

The only issue, therefore, is the jurisdiction of the respondent court to declare the testamentary
provision in favor of the petitioner as null and void.

We sustain the respondent court's jurisdiction. As stated in Nuguid v. Nuguid, (supra):

We pause to reflect. If the case were to be remanded for probate of the will, nothing
will be gained. On the contrary, this litigation will be protracted. And for aught that
appears in the record, in the record, in the event of probate or if the court rejects the
will, probability exists that the case will come up once again before us on the same
issue of the intrinsic validity or nullity of the will. Result, waste of time, effort,
expense, plus added anxiety. These are the practical considerations that induce us
to a belief that we might as well meet head-on the issue of the validity of the
provisions of the will in question. (Section 2, Rule 1, Rules of Court. Case, et al. v.
Jugo, et al., 77 Phil. 517, 522). After all, there exists a justiciable controversy crying
for solution.

We see no useful purpose that would be served if we remand the nullified provision to the proper
court in a separate action for that purpose simply because, in the probate of a will, the court does not
ordinarily look into the intrinsic validity of its provisions.

Article 739 of the Civil Code provides:

The following donations shall be void:

(1) Those made between persons who were guilty of adultery or concubinage at the
time of the donation;

(2) Those made between persons found guilty of the same criminal offense, in
consideration thereof;

(3) Those made to a public officer or his wife, descendants and ascendants, by
reason of his office.
 In the case referred to in No. 1, the action for declaration of nullity may be brought by
the spouse of the donor or donee; and the guilt of the donor and donee may be
proved by preponderance of evidence in the same action.

Article 1028 of the Civil Code provides:

The prohibitions mentioned in Article 739, concerning donations inter vivos shall
apply to testamentary provisions.

In Article III of the disputed Will, executed on August 15, 1968, or almost six years before the
testator's death on July 16, 1974, Martin Jugo stated that respondent Rufina Gomez was his legal
wife from whom he had been estranged "for so many years." He also declared that respondents
Carmelita Jugo and Oscar Jugo were his legitimate children. In Article IV, he stated that he had been
living as man and wife with the petitioner since 1952. Testator Jugo declared that the petitioner was
entitled to his love and affection. He stated that Nepomuceno represented Jugo as her own husband
but "in truth and in fact, as well as in the eyes of the law, I could not bind her to me in the holy bonds
of matrimony because of my aforementioned previous marriage.

There is no question from the records about the fact of a prior existing marriage when Martin Jugo
executed his Will. There is also no dispute that the petitioner and Mr. Jugo lived together in an
ostensible marital relationship for 22 years until his death.

It is also a fact that on December 2, 1952, Martin Jugo and Sofia J. Nepomuceno contracted a
marriage before the Justice of the Peace of Victoria, Tarlac. The man was then 51 years old while
the woman was 48. Nepomuceno now contends that she acted in good faith for 22 years in the belief
that she was legally married to the testator.

The records do not sustain a finding of innocence or good faith. As argued by the private
respondents:

First. The last will and testament itself expressly admits indubitably on its face the
meretricious relationship between the testator and petitioner, the devisee.

Second. Petitioner herself initiated the presentation of evidence on her alleged

ignorance of the true civil status of the testator, which led private respondents to
present contrary evidence.

In short, the parties themselves dueled on the intrinsic validity of the legacy given in
the will to petitioner by the deceased testator at the start of the proceedings.

Whether or not petitioner knew that testator Martin Jugo, the man he had lived with
as man and wife, as already married, was an important and specific issue brought by
the parties before the trial court, and passed upon by the Court of Appeals.

Instead of limiting herself to proving the extrinsic validity of the will, it was petitioner
who opted to present evidence on her alleged good faith in marrying the testator.
(Testimony of Petitioner, TSN of August 1, 1982, pp. 56-57 and pp. 62-64).

Private respondents, naturally, presented evidence that would refute the testimony of
petitioner on the point.
Sebastian Jugo, younger brother of the deceased testator, testified at length on the
meretricious relationship of his brother and petitioner. (TSN of August 18,1975).

Clearly, the good faith of petitioner was by option of the parties made a decisive
issue right at the inception of the case.

Confronted by the situation, the trial court had to make a ruling on the question.

When the court a quo held that the testator Martin Jugo and petitioner 'were deemed
guilty of adultery or concubinage', it was a finding that petitioner was not the innocent
woman she pretended to be.

xxx xxx xxx

3. If a review of the evidence must be made nonetheless, then private respondents

respectfully offer the following analysis:

FIRST: The secrecy of the marriage of petitioner with the deceased testator in a town
in Tarlac where neither she nor the testator ever resided. If there was nothing to hide
from, why the concealment' ? Of course, it maybe argued that the marriage of the
deceased with private respondent Rufina Gomez was likewise done in secrecy. But it
should be remembered that Rufina Gomez was already in the family way at that time
and it would seem that the parents of Martin Jugo were not in favor of the marriage
so much so that an action in court was brought concerning the marriage. (Testimony
of Sebastian Jugo, TSN of August 18, 1975, pp. 29-30)

SECOND: Petitioner was a sweetheart of the deceased testator when they were still
both single. That would be in 1922 as Martin Jugo married respondent Rufina Gomez
on November 29, 1923 (Exh. 3). Petitioner married the testator only on December 5,
1952. There was a space of about 30 years in between. During those 30 years, could
it be believed that she did not even wonder why Martin Jugo did not marry her nor
contact her anymore after November, 1923 - facts that should impel her to ask her
groom before she married him in secrecy, especially so when she was already about
50 years old at the time of marriage.

THIRD: The fact that petitioner broke off from Martin Jugo in 1923 is by itself
conclusive demonstration that she new that the man she had openly lived for 22
years as man and wife was a married man with already two children.

FOURTH: Having admitted that she knew the children of respondent Rufina Gomez,
is it possible that she would not have asked Martin Jugo whether or not they were his
illegitimate or legitimate children and by whom? That is un-Filipino.

FIFTH: Having often gone to Pasig to the residence of the parents of the deceased
testator, is it possible that she would not have known that the mother of private
respondent Oscar Jugo and Carmelita Jugo was respondent Rufina Gomez,
considering that the houses of the parents of Martin Jugo (where he had lived for
many years) and that of respondent Rufina Gomez were just a few meters away?

Such pretentions of petitioner Sofia Nepomuceno are unbelievable. They are, to say
the least, inherently improbable, for they are against the experience in common life
 and the ordinary instincts and promptings of human nature that a woman would not
bother at all to ask the man she was going to marry whether or not he was already
married to another, knowing that her groom had children. It would be a story that
would strain human credulity to the limit if petitioner did not know that Martin Jugo
was already a married man in view of the irrefutable fact that it was precisely his
marriage to respondent Rufina Gomez that led petitioner to break off with the
deceased during their younger years.

Moreover, the prohibition in Article 739 of the Civil Code is against the making of a donation between
persons who are living in adultery or concubinage. It is the donation which becomes void. The giver
cannot give even assuming that the recipient may receive. The very wordings of the Will invalidate
the legacy because the testator admitted he was disposing the properties to a person with whom he
had been living in concubinage.

WHEREFORE, the petition is DISMISSED for lack of merit. The decision of the Court of Appeals,
now Intermediate Appellate Court, is AFFIRMED. No costs.

SO ORDERED.

G.R. No. 95329 January 27, 1993

HERACIO R. REVILLA, petitioner,

vs.
HON. COURT OF APPEALS, FORTUNATO REVILLA, LUZ REVILLA DAVID, LORETO REVILLA
GUTIERREZ, VENERANDA REVILLA MANIQUEZ, NICASIO REVILLA, PERFECTA REVILLA
BALACANIA, JUSTINA REVILLA DEL ROSARIO and AGRIPINA REVILLA
CHACON, respondents.

Manahan, Conrado De Vera, Aquino & Associates Law Offices for petitioner.

Abad, Bautista & Associates for private respondents.

GRIÑO-AQUINO, J.:

This is a petition for review of the decision dated September 13, 1990 of the Court of Appeals in CA-
G.R. CV No. 18190 affirming the decision of the Regional Trial Court of Manila, Branch 39, in
Special Proceeding No. 86-38444 which disallowed the second will supposedly executed on
September 13, 1982 by the late Don Cayetano Revilla whose first Will dated January 28, 1978 had
been probated on March 21, 1980 on his own petition in Special Proceeding No. 128828 of the same
court, while he was still alive.

In our resolution of November 19, 1990, we denied the petition for review for it raises only factual
issues. However, upon the petitioner's motion for reconsideration, we set aside that resolution and
gave due course to the petition so that the parties may argue their respective positions with more
depth and scope. After a more thorough consideration of those arguments, we are persuaded that
the decision of the Court of Appeals should not be changed.

Don Cayetano Revilla y De la Fuente owned two valuable pieces of land with buildings on Calle
Azcarraga (now C.M. Recto Street) in the City of Manila, and six (6) parcels of land in his hometown
of San Miguel, Bulacan. These properties, now worth some P30 million, are registered in his name
and more particularly described as follows:

a) TRANSFER CERTIFICATE OF TITLE NO. 76620 (not TCT No. 170750-ind.)

REGISTRY OF DEEDS FOR THE CITY OF MANILA

A PARCEL OF LAND (Lot. No. 22 of Block No. 2565 of the Cadastral

Survey of the City of Manila, Cadastral Case No. 46, G.L.R.O.
Cadastral Record No. 229) with the buildings and other
improvements now found thereon, situated on the SW, line of Calle
Azcarraga, District of Quiapo, . . . containing an area of ONE
THOUSAND ONE HUNDRED NINETY THREE SQUARE METERS
AND SEVENTY SQUARE DECIMETERS (1,193.70), more or less,
Assessed value — P1,834,980.00.

b) TRANSFER CERTIFICATE OF TITLE NO. 66173 (now TCT No. 170751-ind.)

REGISTRY OF DEEDS FOR THE CITY OF MANILA

A PARCEL OF LAND ( Lot No. 24 of Block No. 2565 of the Cadastral

Survey of the City of Manila, Cadastral Case No. 46, G.L.R.O.
Cadastral Record No. 229) with the buildings and improvements now
found thereon, situated on the SW. line of Calle Azcarraga; District of
Quiapo. . . . containing an area of SEVEN HUNDRED SQUARE
METERS AND SEVENTY SQUARE DECIMETERS (700.70), MORE
OR LESS.

Assessed value — P3,297,150.00

c) TRANSFER CERTIFICATE OF TITLE NO. T-192136 REGISTRY OF DEEDS

FOR THE PROVINCE OF BULACAN

A parcel of land (Lot 1245-A-6 of the subd. plan (LRC) Psd-177051,

being a portion of Lot 1245-A, Psd-11366, LRC Cad. Rec. No. 700),
situated in the Barrio of Salacot, Mun. of San Miguel, Prov. of
Bulacan, Island of Luzon. . . . containing an area of TEN THOUSAND
(10,000) SQUARE METERS, more or less.

Assessed value — P4.000.00

d) TRANSFER CERTIFICATE OF TITLE NO. T-192137 REGISTRY OF DEEDS

FOR THE PROVINCE OF BULACAN

A parcel of land [Lot 1245-A-7 of the subd. plan (LRC) Psd-177051,

being a portion of Lot 1245-A, Psd-11366, LRC Cad. Rec. No. 700],
situated in the Barrio of Salacot, Mun. of San Miguel, Prov. of
Bulacan, Island of Luzon, . . . containing an area of SEVEN
THOUSAND EIGHT HUNDRED NINETY (7,890) SQUARE METERS,
more or less.

Assessed value — P3,790.00

 e) TRANSFER CERTIFICATE OF TITLE NO. T-22049 REGISTRY OF DEEDS FOR
THE PROVINCE OF BULACAN

A parcel of land (Lot 1245-A-9 of the subd. plan (LRC) Psd-177051,

being a portion of Lot 1245-A, Psd-11366, LRC Cad. Rec. No. 700),
situated in the Barrio of Salacot, Municipality of San Miguel, Prov. of
Bulacan, . . . containing an area of ONE THOUSAND FIVE
HUNDRED FOURTEEN (1,514) SQUARE METERS, more or less.

Assessed value — P4,000.00

f) TRANSFER CERTIFICATE OF TITLE NO. 22263 REGISTRY OF DEEDS FOR

THE PROVINCE OF BULACAN

A parcel of land (Lot No. 722 of the Cadastral Survey of San Miguel),
situated in the Municipality of San Miguel. . . . containing an area of
SEVENTEEN THOUSAND AND EIGHTY SIX (17,086) SQUARE
METERS, more or less.

Assessed value — P4,190.00

g) TRANSFER CERTIFICATE OF TITLE NO. T-242301 REGISTRY OF DEEDS

FOR THE PROVINCE OF BULACAN

A parcel of land (Lot 108 of the Cad. Survey of San Miguel), situated
in the Municipality of San Miguel. . . . containing an area of FIVE
HUNDRED AND SEVENTY THREE SQUARE METERS more or
less.

Assessed value — P8,600.00

h) Cemetery lots with a mausoleum (Lots Nos. 66, 67, 68, 69, 70 and 71, Block No.
3) situated at the Sta. Rita Memorial Park, San Miguel, Bulacan (no commercial
value). (pp. 63-64, Rollo.)

On January 28, 1978, Don Cayetano Revilla, a bachelor, without issue nor any surviving
ascendants, executed a last will and testament bequeathing all his properties to his nine (9)
nephews and nieces, the parties herein, who are full blood brothers and sisters, including the
petitioner, Heracio Revilla. To each of them, he bequeathed an undivided one-tenth (1/10) of his
estate reserving the last tenth for masses to be said after his death, and for the care of the religious
images which he kept in a chapel in San Miguel, Bulacan, where masses could be held also (p. 126,
Records).

During his lifetime, Don Cayetano had himself sought the probate of his will and on March 21, 1980
the Court of First Instance of Manila, Branch X, after due hearing in Special Proceeding No. 128828,
allowed and admitted said will to probate.

On November 19, 1981, however, the City Hall of Manila was destroyed by fire. The records of
Special Proceeding No. 128828 also went up in flames. Shortly thereafter, a petition for the
reconstitution of the records of Special Proceeding No. 128828 was filed, and after a proper hearing
wherein Don Cayetano testified again, the petition for reconstitution was granted. (Exh. "34"). (pp.
51-52, 179, Rollo.)

Don Cayetano died on November 11, 1986 at the age of 91.

On November 19, 1986, Heracio Revilla, the oldest nephew, filed a petition for probate of another
will, allegedly executed by Don Cayetano on September 13, 1982 wherein he (Heracio) was
instituted as sole heir of his uncle's estate and executor of the will.

The probate of the second will was opposed by Heracio's eight (8) brothers and sisters, the private
respondents herein. As grounds for their opposition, they alleged:

. . . a) that on March 21, 1980 in Special Proceeding No. 128828, the then Court of
First Instance of Manila, Branch 10, allowed and admitted to probate the last will and
testament of the deceased Cayetano Revilla and that since then and up to the time
of his death, Cayetano Revilla never informed that he revoked the will dated January
28, 1978; (b) that the will sought to be probated was not executed in accordance with
law and that the signature of Cayetano Revilla was different from his usual and
customary signature; (c) that when the will was allegedly executed the decedent was
already of unsound mind or otherwise mentally incapable of making a will or was
already incompetent and could not, without outside aid, take care of himself and
manage his properties becoming thereby an easy prey of deceit and exploitation; d)
that the alleged will was executed with undue and improper pressure and influence
on the part of he beneficiaries thereon or some other persons for their benefit; e) that
the will is void and ineffective for the reason that it was executed under duress or the
influence of fear or of threats; and f) that the decedent acted by mistake and the
signatures in the alleged will were procured by fraud or trick, and he did not intend
that the instrument should be his will at the time of fixing (sic) his signatures thereto
(Opposition to Probate of Alleged Will, pp. 7-8, Records).

The private respondents also opposed Heracio's petition for appointment as executor and/or special
administrator of the estate on the ground that the alleged will is null and void, hence the designation
therein of Heracio as executor is likewise null and void, and that moreover, he is unfit for the trust
(pp. 9-12. Records).

In an order dated May 7, 1987, the lower court held in abeyance the resolution of the issue with
regard to the propriety of Heracio's being appointed as executor (pp. 34-36, Records), but ordered
the parties to present their evidence pro and con vis-a-vis the probate of the second will (Ibid).

On December 1, 1987, the trial court rendered a decision disallowing the second will and,
accordingly, dismissed the case with costs against the petitioner (Decision. pp. 144-184, Records;
pp. 52-53. Rollo.)

On appeal to the Court of Appeals (CA-G.R. CV No. 18190, Sept. 19, 1990), the decision of the
lower court was affirmed. This petition for review was filed by Heracio under Rule 45 of the Rules of
Court.

The lone issue in this case is whether the Court of Appeals (and the trial court) erred in disallowing
the alleged second will of Don Cayetano Revilla.

After a careful examination of the records, we share the appellate court's doubts regarding the
authenticity and due execution of the second will. Indeed, when Don Cayetano testified on
November 27, 1982 in the reconstitution proceedings, he was unaware of the second will which he
supposedly made only two months previous on September 13, 1982. He identified his first will and
declared that it was his true and only will. He denied having subsequently made another will. He
could not have executed a second will on September 13, 1982 because he was sick in the hospital
at that time — for two (2) months before October 21, 1982, or, in August to September 1982, and he
did not, and could not, sign any papers while he was confined in the hospital.

ATTY. DAVID

May I request that this letter dated October 21, 1982, be marked
Exhibit "C" . . .

xxx xxx xxx

By the way Mr. Revilla, will you tell us whether you can still read
when you signed this letter?

A — Yes, I can.

Q — Did you read the contents of this letter?

A — Yes, I did.

Q — When you were sick, before you signed this letter on October
21, 1982, were you confined at the hospital?

A — Yes.

Q — How long were you confined at the hospital, was it for one
month?

A — More than one month, may be two months.

Q — When you were in the hospital you cannot sign because you
were sick?

A — No, I cannot sign.

xxx xxx xxx

Q — Will you tell us Don Cayetano if you ever executed a last will
and testament after this one has been probated by the Court?

A — None, sir. (pp. 20-30, tsn, November 27, 1982.)

He recognized the original will and acknowledged that he signed it.

ATTY. DAVID
 . . . we were granted by the Court permission to come here to find out
from you about your will approved by the Court which was burned
which needs to be reconstituted which Atty. Dacanay undertook as
your counsel and I was included because your heirs requested me, . .
. Since the documents were burned, we have here a brown envelope
which states on its face "Buksan ito pagkalibing ko" — then a
signature Cayetano Revilla — that one in the Court which was
approved by the Court we would like to request from you if this is the
envelope which contains a copy of the will and if this is your
signature?

xxx xxx xxx

Q — And at the back of this envelope are four signatures, are these
your signatures?

A — (Looking over the four signatures at the back of the

envelope) Yes, these are all my signatures.

Q — And your instructions were to open this envelope . . . "Buksan

ito pagkalibing ko."

A — Yes, that is right.

Q — And since you are still alive you asked the Court that your last
will and testament be approved and allowed and what is in the last
will and testament is what will prevail?

A — Yes, sir. (pp. 119-120, Rollo; Emphasis ours.)

He identified his first will and directed Atty. David to deliver it to the Court: "siyang ibigay sa
husgado" (p. 122. Rollo).

ATTY. DAVID

Now that I have told you in the presence of your grandson-in-law,

Atty. Latosa, that the last will and testament which the court admitted
and allowed to probate was burned, why I asked you if this is the
envelope and you remember this is the envelope and you said you
do, and that the five signatures appearing in this envelope are your
signatures, now are you willing to have this envelope opened?

A — Yes, kung anong nandiyan, siyang ibigay sa husgado. (p.

122, Rollo.)

Although the envelope containing a copy of the first will was sealed, with instructions to open it after
his funeral, Don Cayetano wanted "to open it now" (p. 123, Rollo).

ATTY. LATOSA
 Can you please read what is written in that envelope which you
allowed to be opened.

A — Yes, "buksan ito pagkalibing ko."

ATTY. DAVID

Do you want to open this now?

A — Yes.

Q — Do you wish to open this envelope now?

A — Yes, I want to open it now.

(p. 23, Rollo.)

Don Cayetano declared that he understood that the document inside the envelope was his will
["naiintindihan ko po iyon" (p. 131, Rollo)].

Q — This envelope which contained the last will and testament which
I took the contents in your presence and in the presence of the other
representation here including the representatives of the Court, the
document contained therein is entitled, "Unang Pahina, Huling Habilin
Ni Don Cayetano Revilla," consisting of fourteen pages, the title
means that this is your last will and testament?

A —Yes, Naiintindihan ko po iyon.

Q — And you executed this on the 28 of January as appearing . . .

28th of January 1978, as appearing on the 13th page of this last will
and testament?

A — Yes.

Q — And all pages of this last will and testament were all signed by
you which reads Cayetano Revilla, will you go over these fourteen
pages and tell us if the signatures here reading Cayetano Revilla are
your signatures?

A — (After going over the document, page by page and looking at the
signature reading Cayetano Revilla in every page) Yes, these are all
my signatures, the ones reading Cayetano Revilla. (p 131, Rollo;
Emphasis supplied.)

He recognized himself and his lawyer, Attorney Benjamin Dacanay, in the pictures that were taken
during the signing of his first will.

Q — Now, in this envelope there are pictures five pictures in all, will
you go over these and tell us if you can remember any of those
persons appearing in the pictures?
 A — This one, (testator pointing to a person in the picture) is Mr.
Dacanay.

ATTY. DAVID

May I request that this picture wherein Don Cayetano Revilla

identified Atty. Dacanay, be marked as Exhibit "D".

There is a person in this picture, the one second from the left, will you
go over it and see if you remember that person?

A — I am that person.

Q — Now in this second picture, do you recognize anybody here?

A — Yes, I can recognize myself when I was signing the will.

Q — Who else do you know is present in that picture?

A — This one, he is Mr. Dacanay.

Q — How about the other one?

A — I don't know the others. (p. 133, Rollo; Emphasis supplied.)

Don Cayetano assured Attorney David that his original will was his "genuine will and testament and
not changed" (p. 134, Rollo).

ATTY. DAVID

xxx xxx xxx

We are doing this Mr. Revilla because in case there will be an

opposition to this last will and testament we can prove that this is the
genuine will and testament and not changed.

A — Yes, that is true sir, that is the truth. (p. 134, Rollo.)

He declared that he did not execute another last will and testament after the original will had been
probated.

Q — Will you tell us Don Cayetano if you ever executed a last will
and testament after this one has been probated by the Court?

A — None, sir. (p. 135. Rollo.)

The petitioner's contention that Don Cayetano's denial constitutes "negative declaration" which has
no "probative value under the rules of evidence" (p. 73, Rollo) is not correct. Don Cayetano's
assertion that he did not execute another will, was not negative evidence. Evidence is negative when
the witness states that he did not see or know the occurrence of a fact, and positive when the
witness affirms that a fact did or did not occur (2 Moore an Facts,
p 1338). Don Cayetano's declaration that he did not execute a second will, constitutes positive
evidence of a fact personally known to himself: that he did not make a second will. As correctly held
by the Court of Appeals:

This categorical denial by the late Cayetano Revilla must be believed by everybody.
If he denied having executed another will, who are we to insist that he made another
or second will after the probate of his will dated January 28, 1978? The testimonies
of the alleged notary public as well as the three instrumental witnesses of the alleged
second will of the late Cayetano Revilla cannot outweigh the denial of the late
Cayetano Revilla. . . . . (p. 95, Rollo.)

Significantly, although the petitioner opposed the reconstitution of Don Cayetano's first will, he did
not reveal the second will which Don Cayetano supposedly made only two (2) months before he
testified in the reconstitution proceeding. Why was the second will kept under wraps? Did Heracio
fear that if Don Cayetano were confronted with the document, he would have disowned it? The
explanation of the petitioner that an inquiry into the existence of the second will "was totally uncalled
for, immaterial, and irrelevant" (p. 96, Rollo), is unconvincing. For if the second will already existed
on November 27, 1982, it would have been Heracio's strongest argument against the reconstitution
of the probate of the first will.

The petitioner's argument that Don Cayetano's testimony is inadmissible because petitioner's
counsel, Attorney Layosa, had no opportunity to
cross-examine him (p. 146, Rollo), does not wash. The opportunity was there all the time. Attorney
Layosa simply made no attempt to exercise his right to
cross-examine Don Cayetano.

If Don Cayetano's testimony was "an honest mistake due to a misapprehension of fact" as the
petitioner insists (p. 35, Rollo), that mistake would have been rectified by inviting his attention to the
second will. It seems, however, that Attorney Layosa was under constraint not to disclose the
second will to Don Cayetano.

Even the letter that Don Cayetano supposedly sent to the court disowning the petition for
reconstitution of the records of the first probate proceeding, did not disclose that he had already
made another will. As pointedly observed by the Court of Appeals, if Don Cayetano were aware that
he made a second will, he "could have easily told the Court that the reconstitution proceeding was
useless" because he had already made a second will revoking the first
(pp. 54-55, Rollo).

The testimonies of the notary and attesting witnesses and even the photographs of what purported
to be the signing of the second will were not given credit by the trial court and the Court of Appeals.
The court's observation that the photographs do not show the nature of the document that was being
signed, nor the date of the transaction, is valid. The lower court's distrust for the testimonies of the
attesting witnesses to the second will deserves our highest respect (People vs. Sarol, 139 SCRA
125; Guita vs. CA., 139 SCRA 576; People vs. Cabanit, 139 SCRA 94).

Since the execution of the second will could not have occurred on the date (September 13, 1982)
appearing therein (for Don Cayetano was admittedly sick in the hospital then) it must have been
procured at the time when the testator was a virtual prisoner, held incommunicado, in his house. The
Honorable Judge (later Court of Appeals Justice) Eduardo Bengson had to issue an order
commanding the petitioner to allow his eight (8) brothers and sisters to visit Don Cayetano. Only
then were they able to penetrate the iron curtain that Heracio had placed around their uncle. A
videotape, taken during their pleasant visit with the old man and shown in court, belied Heracio's
allegation that Don Cayetano was displeased with his said nephews and nieces, that was why he left
them out of his second will.

Despite Judge Bengzon's order, Heracio did not cease his efforts to monopolize Don Cayetano and
his estate. To isolate Don Cayetano and make him inacessible to the private respondents, Heracio
transferred him from his own house on Claro M. Recto Avenue in Manila to Heracio's house in
Novaliches, Quezon City.

The execution of the second will in an environment of secrecy and seclusion and the disinheritance
of his eight (8) other nephews and nieces of whom he was equally fond, justified the trial court's and
the Court of Appeals' belief that undue influence was exercised by Horacio over Don Cayetano to
make him sign the second will (which Don Cayetano did not know to be such) in order to deprive his
brothers and sisters of their rightful share in their uncle's estate.

The employment of undue influence by Heracio was not "mutually repugnant" to fraud (p. 172, Rollo)
as the petitioner insists, for it was the means employed by Heracio to defraud his brothers and
sisters of their share in Don Cayetano's estate.

There was fraud because Don Cayetano was not apprised that the document he was signing with
Co, Barredo and Lim was a second will revoking the dispositions of property that he made in his first
will. Had he been aware that it was a second will, and if it were prepared at his own behest, he
would not have denied that he made it. He would probably have caused it to be probated while he
was still alive, as he did with his first will.

But apparently, the instrument was foisted on him without his being aware of its true nature which
the petitioner assiduously concealed, not only from the court and the private respondents, but from
Don Cayetano himself.

That the dispositions in the second will were not made by Don Cayetano is proven by the omission
therefrom of Don Cayetano's reservation of one-tenth of his properties and the income thereof to pay
for holy masses for the repose of his soul and to be spent for the maintenance of his family chapel
which houses the religious images he owned in San Miguel, Bulacan. That provision in his first will,
for his personal benefit, would not have been deleted by Don Cayetano if his only purpose in making
a second will was to disinherit his eight nephews and nieces. But Heracio overdid himself. He
wanted everything.

The objection to the deposition of Don Cayetano for want of an oath before he testified, is tardy.
Objection to the lack of an oath should have been made at the taking of his deposition. Section
29(d), Rule 24 of the Rules of Court provides:

(d) As to oral examination and other particulars —

Errors and irregularities occurring at the oral examination in the manner of taking the
deposition, in the form of the questions or answers, in the oath or affirmation, or in
the conduct of the parties and errors of any kind which might be obviated, removed,
or cured if promptly prosecuted, are waived unless reasonable objection thereto is
made at the taking of the deposition. (Emphasis ours.)

While the petitioner puts much stock in the supposed due execution of the will and the competence
of the attesting witnesses — Co, Barredo and
Lim — the trial court, with whom the Court of Appeals agreed, gave them low marks for credibility.
The factual observations of the Court of Appeals on this point are quoted below:

Assuming for the sake of arguments that the second will was executed, the
testimonies of the notary public who prepared and before whom the will was
acknowledged, as well as those of the three (3) instrumental witnesses thereof were
not given credit by the lower court, and so with this Court, because of major
contradictions in testimonies.

As regards notary public Atty. Mendoza, the court a quo doubted his credibility as
follows:

The prevarications on the testimonies of witnesses are not difficult to

find especially if we consider that in a second meeting only with Don
Cayetano, Atty. Mendoza would readily be entrusted with the delicate
and confidential preparation of a second will, designed to disinherit
his eight nephews and nieces in favor of Heracio, the operator of the
bowling alley where witness Mendoza always play; . . . (p. 36,
Decision; p. 179, Records)

. . . Added to this is the statement of Atty. Mendoza that the old man
could understood (sic) both English or Tagalog. On this score, this
Court entertains doubt as to its truthfulness because it was testified to
by Barredo, prosecution witness and corroborated by Ms. Bingel,
principal witness for the oppositors, that the old man is versatile in
Tagalog as he is a Bulakeño but could not speak English except to
say word, yes, sir. . . . . (p. 33, Decision, p. 176, Records).

With respect to witness Alfredo Barredo, the truthfulness of his testimonies was
doubted by the lower court in this wise:

. . . . Another point noticed by this Court is the testimony of Alfredo

Barredo that after talking with Atty. Mendoza at the phone he was
asked by the old man to fetch the 2 witnesses however when asked
on direct examination, he stated that he stayed all along with the old
man and did not leave him even after talking with Atty. Mendoza,
which spells a whale of difference in time element and enormously
distanced from the truth. So also, his exaggerated demonstration of
the ability of the old man in answering even small children yes, sir, is
too good to be true. . . . . (pp. 33-34, Decision, pp. 176-177,
Records).

Witness Dr. Co's testimony that he did not charge the late Cayetano Revilla for two
services rendered by him and that he only charged when a third service was made
was also doubted by the lower court. Said the court a quo:

. . . witnesses Co, a practicing dentist was munificent enough not to

charge Don Cayetano for two time services and only charged him the
3rd time.

It may be added here that the testimony of Dr. Co that the testator read his will in
silence before they were asked to affix their signatures (tsn., Aug. 17, 1987, pp. 30-
 31, 45) is completely different from the testimony of another witness (Fernando Lim)
who testified that the late Don Cayetano read his will aloud before he gave it to the
witnesses for their signatures (tsn., Aug. 13, 1987, pp. 47, 52).

The above citations of the inconsistencies and contradictions fatally made by said
witnesses are only some of the more important ones as discussed in the decision of
the lower court. But they are enough, to say the least, to convince this Court that
indeed said witnesses crossed the boundaries of their credibilities. (pp. 56-57, Rollo.)

WHEREFORE, finding no reversible error in the decision of the Court of Appeals, the petition for
review is DENIED. Costs against the petitioner.

SO ORDERED.