1
G.R. No. 76464 February 29, 1988
TESTATE ESTATE OF THE LATE ADRIANA MALOTO, ALDINA MALOTO
CASIANO, CONSTANCIO MALOTO, PURIFICACION MIRAFLOR, ROMAN
CATHOLIC CHURCH OF MOLO, AND ASILO DE MOLO, petitioners,
vs.
COURT OF APPEALS, PANFILO MALOTO AND FELINO MALOTO, respondents.
SARMIENTO, J.:
This is not the first time that the parties to this case come to us. In fact, two
other cases directly related to the present one and involving the same
parties had already been decided by us in the past. In G.R. No. L-
30479, 1 which was a petition for certiorari and mandamus instituted by
the petitioners herein, we dismissed the petition ruling that the more
appropriate remedy of the petitioners is a separate proceeding for the
probate of the will in question. Pursuant to the said ruling, the petitioners
commenced in the then Court of First Instance of Iloilo, Special
Proceeding No. 2176, for the probate of the disputed will, which was
opposed by the private respondents presently, Panfilo and Felino both
surnamed Maloto. The trial court dismissed the petition on April 30, 1970.
Complaining against the dismissal, again, the petitioners came to this
Court on a petition for review by certiorari. 2 Acting on the said petition,
we set aside the trial court's order and directed it to proceed to hear the
case on the merits. The trial court, after hearing, found the will to have
already been revoked by the testatrix. Adriana Maloto, and thus, denied
the petition. The petitioners appealed the trial court's decision to the
Intermediate Appellate Court which, on June 7, 1985, affirmed the order.
The petitioners' motion for reconsideration of the adverse decision proved
to be of no avail, hence, this petition.
For a better understanding of the controversy, a factual account would
be a great help.
On October 20, 1963, Adriana Maloto died leaving as heirs her niece and
nephews, the petitioners Aldina Maloto-Casiano and Constancio,
Maloto, and the private respondents Panfilo Maloto and Felino Maloto.
Believing that the deceased did not leave behind a last will and
testament, these four heirs commenced on November 4, 1963 an
intestate proceeding for the settlement of their aunt's estate. The case
was instituted in the then Court of First Instance of Iloilo and was
docketed as Special Proceeding No. 1736. However, while the case was
still in progress, or to be exact on February 1, 1964, the parties — Aldina,
Constancio, Panfilo, and Felino — executed an agreement of
extrajudicial settlement of Adriana's estate. The agreement provided for
the division of the estate into four equal parts among the parties. The
Malotos then presented the extrajudicial settlement agreement to the
trial court for approval which the court did on March 21, 1964. That should
have signalled the end of the controversy, but, unfortunately, it had not.
Three years later, or sometime in March 1967, Atty. Sulpicio Palma, a
former associate of Adriana's counsel, the late Atty. Eliseo Hervas,
discovered a document entitled "KATAPUSAN NGA PAGBUBULAT-AN
(Testamento)," dated January 3,1940, and purporting to be the last will
and testament of Adriana. Atty. Palma claimed to have found the
testament, the original copy, while he was going through some materials
inside the cabinet drawer formerly used by Atty. Hervas. The document
was submitted to the office of the clerk of the Court of First Instance of
Iloilo on April 1, 1967. Incidentally, while Panfilo and Felino are still named
as heirs in the said will, Aldina and Constancio are bequeathed much
bigger and more valuable shares in the estate of Adriana than what they
received by virtue of the agreement of extrajudicial settlement they had
earlier signed. The will likewise gives devises and legacies to other parties,
among them being the petitioners Asilo de Molo, the Roman Catholic
Church of Molo, and Purificacion Miraflor.
Thus, on May 24, 1967, Aldina and Constancio, joined by the other
devisees and legatees named in the will, filed in Special Proceeding No.
1736 a motion for reconsideration and annulment of the proceedings
therein and for the allowance of the will When the trial court denied their
motion, the petitioner came to us by way of a petition for certiorari and
mandamus assailing the orders of the trial court . 3 As we stated earlier,
we dismissed that petition and advised that a separate proceeding for
the probate of the alleged will would be the appropriate vehicle to
thresh out the matters raised by the petitioners.
Significantly, the appellate court while finding as inconclusive the matter
on whether or not the document or papers allegedly burned by the
househelp of Adriana, Guadalupe Maloto Vda. de Coral, upon
instructions of the testatrix, was indeed the will, contradicted itself and
found that the will had been revoked. The respondent court stated that
the presence of animus revocandi in the destruction of the will had,
nevertheless, been sufficiently proven. The appellate court based its
finding on the facts that the document was not in the two safes in
Adriana's residence, by the testatrix going to the residence of Atty.
Hervas to retrieve a copy of the will left in the latter's possession, and, her
seeking the services of Atty. Palma in order to have a new will drawn up.
For reasons shortly to be explained, we do not view such facts, even

considered collectively, as sufficient bases for the conclusion that
Adriana Maloto's will had been effectively revoked.
There is no doubt as to the testamentary capacity of the testatrix and the
due execution of the will. The heart of the case lies on the issue as to
whether or not the will was revoked by Adriana.
The provisions of the new Civil Code pertinent to the issue can be found
in Article 830.
Art. 830. No will shall be revoked except in the
following cases:
(1) By implication of law; or
(2) By some will, codicil, or other writing executed as
provided in case of wills: or
(3) By burning, tearing, cancelling, or obliterating the
will with the intention of revoking it, by the testator
himself, or by some other person in his presence, and
by his express direction. If burned, torn cancelled, or
obliterated by some other person, without the express
direction of the testator, the will may still be
established, and the estate distributed in accordance
therewith, if its contents, and due execution, and the
fact of its unauthorized destruction, cancellation, or
obliteration are established according to the Rules of
Court. (Emphasis Supplied.)
It is clear that the physical act of destruction of a will, like burning in this
case, does not per se constitute an effective revocation, unless the
destruction is coupled with animus revocandi on the part of the testator.
It is not imperative that the physical destruction be done by the testator
himself. It may be performed by another person but under theexpress
direction and in the presence of the testator. Of course, it goes without
saying that the document destroyed must be the will itself.
In this case, while animus revocandi or the intention to revoke, may be
conceded, for that is a state of mind, yet that requisite alone would not
suffice. "Animus revocandi is only one of the necessary elements for the
effective revocation of a last will and testament. The intention to revoke
must be accompanied by the overt physical act of burning, tearing,
obliterating, or cancelling the will carried out by the testator or by
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another person in his presence and under his express direction. There is
paucity of evidence to show compliance with these requirements. For
one, the document or papers burned by Adriana's maid, Guadalupe,
was not satisfactorily established to be a will at all, much less the will of
Adriana Maloto. For another, the burning was not proven to have been
done under the express direction of Adriana. And then, the burning was
not in her presence. Both witnesses, Guadalupe and Eladio, were one in
stating that they were the only ones present at the place where the stove
(presumably in the kitchen) was located in which the papers proffered as
a will were burned.
The respondent appellate court in assessing the evidence presented by
the private respondents as oppositors in the trial court, concluded that
the testimony of the two witnesses who testified in favor of the will's
revocation appear "inconclusive." We share the same view. Nowhere in
the records before us does it appear that the two witnesses, Guadalupe
Vda. de Corral and Eladio Itchon, both illiterates, were unequivocably
positive that the document burned was indeed Adriana's will.
Guadalupe, we think, believed that the papers she destroyed was the will
only because, according to her, Adriana told her so. Eladio, on the other
hand, obtained his information that the burned document was the will
because Guadalupe told him so, thus, his testimony on this point is double
hearsay.
At this juncture, we reiterate that "(it) is an important matter of public
interest that a purported win is not denied legalization on dubious
grounds. Otherwise, the very institution of testamentary succession will be
shaken to its very foundations ...."4
The private respondents in their bid for the dismissal of the present action
for probate instituted by the petitioners argue that the same is already
barred by res adjudicata. They claim that this bar was brought about by
the petitioners' failure to appeal timely from the order dated November
16, 1968 of the trial court in the intestate proceeding (Special Proceeding
No. 1736) denying their (petitioners') motion to reopen the case, and their
prayer to annul the previous proceedings therein and to allow the last will
and testament of the late Adriana Maloto. This is untenable.
The doctrine of res adjudicata finds no application in the present
controversy. For a judgment to be a bar to a subsequent case, the
following requisites must concur: (1) the presence of a final former
judgment; (2) the former judgment was rendered by a court having
jurisdiction over the subject matter and the parties; (3) the former
judgment is a judgment on the merits; and (4) there is, between the first
and the second action, Identity of parties, of subject matter, and of

cause of action. 5 We do not find here the presence of all the
enumerated requisites.
For one, there is yet, strictly speaking, no final judgment rendered insofar
as the probate of Adriana Maloto's will is concerned. The decision of the
trial court in Special Proceeding No. 1736, although final, involved only
the intestate settlement of the estate of Adriana. As such, that judgment
could not in any manner be construed to be final with respect to the
probate of the subsequently discovered will of the decedent. Neither is it
a judgment on the merits of the action for probate. This is understandably
so because the trial court, in the intestate proceeding, was without
jurisdiction to rule on the probate of the contested will . 6 After all, an
action for probate, as it implies, is founded on the presence of a will and
with the objective of proving its due execution and validity, something
which can not be properly done in an intestate settlement of estate
proceeding which is predicated on the assumption that the decedent
left no will. Thus, there is likewise no Identity between the cause of action
in intestate proceeding and that in an action for probate. Be that as it
may, it would be remembered that it was precisely because of our ruling
in G.R. No. L-30479 that the petitioners instituted this separate action for
the probate of the late Adriana Maloto's will. Hence, on these grounds
alone, the position of the private respondents on this score can not be
sustained.
One last note. The private respondents point out that revocation could
be inferred from the fact that "(a) major and substantial bulk of the
properties mentioned in the will had been disposed of: while an
insignificant portion of the properties remained at the time of death (of
the testatrix); and, furthermore, more valuable properties have been
acquired after the execution of the will on January 3,1940." 7 Suffice it to
state here that as these additional matters raised by the private
respondents are extraneous to this special proceeding, they could only
be appropriately taken up after the will has been duly probated and a
certificate of its allowance issued.
WHEREFORE, judgment is hereby rendered REVERSING and SETTING ASIDE
the Decision dated June 7, 1985 and the Resolution dated October 22,
1986, of the respondent Court of Appeals, and a new one ENTERED for
the allowance of Adriana Maloto's last will and testament. Costs against
the private respondents.
This Decision is IMMEDIATELY EXECUTORY.
SO ORDERED.
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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
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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.
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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
6
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
7
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
G.R. No. L-58509 December 7, 1982
IN THE MATTER OF THE PETITION TO APPROVE THE WILL OF RICARDO B.
BONILLA deceased, MARCELA RODELAS, petitioner-appellant,
vs.
AMPARO ARANZA, ET AL., oppositors-appellees, ATTY. LORENZO
SUMULONG, intervenor.
Luciano A. Joson for petitioner-appellant.
Cesar Paralejo for oppositor-appellee.
RELOVA, J.:
This case was certified to this Tribunal by the Court of Appeals for final
determination pursuant to Section 3, Rule 50 of the Rules of Court.
As found by the Court of Appeals:
... On January 11, 1977, appellant filed a petition with
the Court of First Instance of Rizal for the probate of the
holographic will of Ricardo B. Bonilla and the issuance
of letters testamentary in her favor. The petition,
docketed as Sp. Proc. No. 8432, was opposed by the
appellees Amparo Aranza Bonilla, Wilferine Bonilla
Treyes Expedita Bonilla Frias and Ephraim Bonilla on the
following grounds:
(1) Appellant was estopped from claiming that the
deceased left a will by failing to produce the will within
twenty days of the death of the testator as required by
Rule 75, section 2 of the Rules of Court;
(2) The alleged copy of the alleged holographic will
did not contain a disposition of property after death
and was not intended to take effect after death, and
therefore it was not a will
8
(3) The alleged hollographic will itself,and not an
alleged copy thereof, must be produced, otherwise it
would produce no effect, as held in Gam v. Yap, 104
Phil. 509; and
(4 ) The deceased did not leave any will, holographic
or otherwise, executed and attested as required by
law.
The appellees likewise moved for the consolidation of
the case with another case Sp. Proc. No, 8275). Their
motion was granted by the court in an order dated
April 4, 1977.
On November 13, 1978, following the consolidation of
the cases, the appellees moved again to dismiss the
petition for the probate of the will. They argued that:
(1) The alleged holographic was not a last will but
merely an instruction as to the management and
improvement of the schools and colleges founded by
decedent Ricardo B. Bonilla; and
(2) Lost or destroyed holographic wills cannot be
proved by secondary evidence unlike ordinary wills.
Upon opposition of the appellant, the motion to dismiss
was denied by the court in its order of February 23,
1979.
The appellees then filed a motion for reconsideration
on the ground that the order was contrary to law and
settled pronouncements and rulings of the Supreme
Court, to which the appellant in turn filed an
opposition. On July 23, 1979, the court set aside its
order of February 23, 1979 and dismissed the petition
for the probate of the will of Ricardo B. Bonilla. The
court said:
... It is our considered opinion that once the original
copy of the holographic will is lost, a copy thereof
cannot stand in lieu of the original.
 9

In the case of Gam vs. Yap, 104 Phil. 509, 522, the
Supreme Court held that 'in the matter of holographic
wills the law, it is reasonable to suppose, regards the
document itself as the material proof of authenticity of
said wills.
MOREOVER, this Court notes that the alleged
holographic will was executed on January 25, 1962
while Ricardo B. Bonilla died on May 13, 1976. In view
of the lapse of more than 14 years from the time of the
execution of the will to the death of the decedent, the
fact that the original of the will could not be located
shows to our mind that the decedent had discarded
before his death his allegedly missing Holographic Will.
Appellant's motion for reconsideration was denied. Hence, an appeal to
the Court of Appeals in which it is contended that the dismissal of
appellant's petition is contrary to law and well-settled jurisprudence.
On July 7, 1980, appellees moved to forward the case to this Court on the
ground that the appeal does not involve question of fact and alleged
that the trial court committed the following assigned errors:
I. THE LOWER COURT ERRED IN HOLDING THAT A LOST
HOLOGRAPHIC WILL MAY NOT BE PROVED BY A COPY
THEREOF;
necessary that there be a comparison between sample handwritten
statements of the testator and the handwritten will. But, a photostatic
copy or xerox copy of the holographic will may be allowed because
comparison can be made with the standard writings of the testator. In
the case of Gam vs. Yap, 104 PHIL. 509, the Court ruled that "the
execution and the contents of a lost or destroyed holographic will may
not be proved by the bare testimony of witnesses who have seen and/or
read such will. The will itself must be presented; otherwise, it shall produce
no effect. The law regards the document itself as material proof of
authenticity." But, in Footnote 8 of said decision, it says that "Perhaps it
may be proved by a photographic or photostatic copy. Even a
mimeographed or carbon copy; or by other similar means, if any,
whereby the authenticity of the handwriting of the deceased may be
exhibited and tested before the probate court," Evidently, the photostatic
or xerox copy of the lost or destroyed holographic will may be admitted
because then the authenticity of the handwriting of the deceased can
be determined by the probate court.
WHEREFORE, the order of the lower court dated October 3, 1979, denying
appellant's motion for reconsideration dated August 9, 1979, of the Order
dated July 23, 1979, dismissing her petition to approve the will of the late
Ricardo B. Bonilla, is hereby SET ASIDE.
SO ORDERED.
G.R. No. L-14003 August 5, 1960

FEDERICO AZAOLA, petitioner-appellant,

II. THE LOWER COURT ERRED IN HOLDING THAT THE
vs.
DECEDENT HAS DISCARDED BEFORE HIS DEATH THE
CESARIO SINGSON, oppositor-appellee.
MISSING HOLOGRAPHIC WILL;

F. Lavides and L.B. Alcuaz for appellant.

III. THE LOWER COURT ERRED IN DISMISSING
Vicente J. Cuna and P.S. Singson for appellee.
APPELLANT'S WILL.

REYES, J.B.L., J.:

The only question here is whether a holographic will which was lost or
cannot be found can be proved by means of a photostatic copy.
Pursuant to Article 811 of the Civil Code, probate of holographic wills is This appeal, taken on points of law from a decision rendered on 15
the allowance of the will by the court after its due execution has been January 1958 by the Court of First Instance of Quezon City in its Special
proved. The probate may be uncontested or not. If uncontested, at least Proceedings No. Q-2640, involves the determination of the quantity of
one Identifying witness is required and, if no witness is available, experts evidence required for the probate of a holographic will.
may be resorted to. If contested, at least three Identifying witnesses are
required. However, if the holographic will has been lost or destroyed and
The established facts are thus summarized in the decision appealed from
no other copy is available, the will can not be probated because the
(Rec. App. pp. 22-24):
best and only evidence is the handwriting of the testator in said will. It is

"Briefly speaking, the following facts were established by the
petitioner; that on September 9, 1957, Fortunata S. Vda. de
Yance died at 13 Luskot, Quezon City, known to be the last
residence of said testatrix; that Francisco Azaola, petitioner
herein for probate of the holographic will, submitted the said
holographic will (Exh. C) whereby Maria Milagros Azaola was
made the sole heir as against the nephew of deceased Cesario
Singson; that witness Francisco Azaola testified that he saw the
holographic will (Exh. C) one month, more or less, before the
death of the testatrix, as the same was handed to him and his
wife; that the witness testified also that he recognized all the
signatures appearing in the holographic will (Exh. C) as the
handwriting of the testatrix and to reinforce said statement,
witness presented the mortgage (Exh. E), the special power of
the attorney (Exh. F), and the general power of attorney (Exh. F-
1), besides the deeds of sale (Exhs. G and G-1) including an
affidavit (Exh. G-2), and that there were further exhibited in
court two residence certificates (Exhs. H and H-1) to show the
signatures of the testatrix, for comparison purposes; that said
witness, Azaola, testified that the penmanship appearing in the
aforesaid documentary evidence is in the handwriting of the
testatrix as well as the signatures appearing in the aforesaid
documentary evidence is in the handwriting of the testatrix as
well as the signatures appearing therein are the signatures of
the testatrix; that said witness, in answer to a question of his
counsel admitted that the holographic will was handed to him
by the testatrix. "apparently it must have been written by her"
(t.s.n., p. 11). However, on page 16 on the same transcript of the
stenographic notes, when the same witness was asked by
counsel if he was familiar with the penmanship and handwriting
of the deceased Fortunata Vda. de Yance, he answered
positively in the affirmative and when he was asked again
whether the penmanship referred to in the previous answer as
appearing in the holographic will (Exh. C) was hers (testatrix'), he
answered, "I would definitely say it is hers"; that it was also
established in the proceedings that the assessed value of the
property of the deceased in Luskot, Quezon City, is in the
amount of P7,000.00.
The opposition to the probate was on the ground that (1) the execution
of the will was procured by undue and improper pressure and influence
on the part of the petitioner and his wife, and (2) that the testatrix did not
seriously intend the instrument to be her last will, and that the same was
actually written either on the 5th or 6th day of August 1957 and not on
November 20, 1956 as appears on the will.
10
The probate was denied on the ground that under Article 811 of the Civil
Code, the proponent must present three witnesses who could declare
that the will and the signature are in the writing of the testatrix, the
probate being contested; and because the lone witness presented by
the proponent "did not prove sufficiently that the body of the will was
written in the handwriting of the testatrix."
The proponent appealed, urging: first, that he was not bound to produce
more than one witness because the will's authenticity was not
questioned; and second, that Article 811 does not mandatorily require
the production of three witnesses to identify the handwriting and
signature of a holographic will, even if its authenticity should be denied
by the adverse party.
Article 811 of the Civil Code of the Philippines is to the following effect:
ART. 811. In the probate of a holographic will, it shall be
necessary that at least one witness who knows the handwriting
and signature of the testator explicitly declare that the will and
the signature are in the handwriting of the testator. If the will is
contested, at least three of such witnesses shall be required.
In the absence of any competent witnesses referred to in the
preceding paragraph, and if the court deems it necessary,
expert testimony may be resorted to. (691a).
We agree with the appellant that since the authenticity of the will was
not contested, he was not required to produce more than one witness;
but even if the genuineness of the holographic will were contested, we
are of the opinion that Article 811 of our present Civil Code can not be
interpreted as to require the compulsory presentation of three witnesses
to identify the handwriting of the testator, under penalty of having the
probate denied. Since no witness may have been present at the
execution of a holographic will, none being required by law (Art. 810,
new Civil Code), it becomes obvious that the existence of witness
possessing the requisite qualifications is a matter beyond the control of
the proponent. For it is not merely a question of finding and producing
any three witnesses; they must be witnesses "who know the handwriting
and signature of the testator" and who can declare (truthfully, of course,
even if the law does not so express) "that the will and the signature are in
the handwriting of the testator". There may be no available witness of the
testator's hand; or even if so familiarized, the witnesses may be unwilling
to give a positive opinion. Compliance with the rule of paragraph 1 of
Article 811 may thus become an impossibility. That is evidently the reason
why the second paragraph of Article 811 prescribes that —

in the absence of any competent witness referred to in the
preceding paragraph, and if the court deems it necessary,
expert testimony may be resorted to.
As can be seen, the law foresees the possibility that no qualified witness
may be found (or what amounts to the same thing, that no competent
witness may be willing to testify to the authenticity of the will), and
provides for resort to expert evidence to supply the deficiency.
It may be true that the rule of this article (requiring that three witnesses be
presented if the will is contested and only one if no contest is had) was
derived from the rule established for ordinary testaments (cf. Cabang vs.
Delfinado, 45 Phil., 291; Tolentino vs. Francisco, 57 Phil., 742). But it can not
be ignored that the requirement can be considered mandatory only in
the case of ordinary testaments, precisely because the presence of at
least three witnesses at the execution of ordinary wills is made by law
essential to their validity (Art. 805). Where the will is holographic, no
witness need be present (Art. 10), and the rule requiring production of
three witnesses must be deemed merely permissive if absurd results are to
be avoided.
Again, under Article 811, the resort to expert evidence is conditioned by
the words "if the Court deem it necessary", which reveal that what the
law deems essential is that the Court should be convinced of the will's
authenticity. Where the prescribed number of witnesses is produced and
the court is convinced by their testimony that the ill is genuine, it may
consider it unnecessary to call for expert evidence. On the other hand, if
no competent witness is available, or none of those produced is
convincing, the Court may still, and in fact it should, resort to handwriting
experts. The duty of the Court, in fine, is to exhaust all available lines of
inquiry, for the state is as much interested as the proponent that the true
intention of the testator be carried into effect.
Commenting on analogous provisions of Article 691 of the Spanish Civil
Code of 1889, the noted Commentator, Mucuis Scaevola (Vol. 12, 2nd
Ed., p.421), sagely remarks:
La manera como esta concebida la redaccion del ultimo
apartado de dicho precepto induce la conclusion de que
siempre o por lo menos, en la mayor parte de los casos, el Juez
debe acudir al criterio pericial para que le ilustre acerca de la
autenticidad del testamento olografo, aunque ya esten insertas
en los autos del expediente las declaraciones testificales. La
prudencia con que el Juez debe de proceder en resoluciones
de transcendencia asi lo exige, y la indole delicada y peligrosa
11
del testamento olografo lo hace necesario para mayor
garantia de todos los interes comprometidos en aquel.
En efecto, el cotejo pericial de letras puede ser una
confirmacion facultativa del dicho profano de los testigos y un
modo de desvanecer las ultimas dudas que pudieran ocurrir al
Juez acerca de la autenticidad que trata de averigaur y
declarar. Para eso se ha escrito la frase del citado ultimo
apartado, (siempre que el Juez lo estime conveniente), haya
habido o no testigos y dudaran o no estos respecto de los
extremos por que son preguntados.
El arbitrio judicial en este caso debe formarse con
independencia de los sucesos y de su significacion, para
responder debidamente de las resoluciones que haya de
dictar.
And because the law leaves it to the trial court if experts are still needed,
no unfavourable inference can be drawn from a party's failure to offer
expert evidence, until and unless the court expresses dissatisfaction with
the testimony of the lay witnesses.
Our conclusion is that the rule of the first paragraph of Article 811 of the
Civil Code is merely directory and is not mandatory.
Considering, however, that this is the first occasion in which this Court has
been called upon to construe the import of said article, the interest of
justice would be better served, in our opinion, by giving the parties ample
opportunity to adduce additional evidence, including expert witnesses,
should the Court deem them necessary.
In view of the foregoing, the decision appealed from is set aside, and the
records ordered remanded to the Court of origin, with instructions to hold
a new trial in conformity with this opinion. But evidence already on record
shall not be retaken. No costs.
G.R. No. L-24742 October 26, 1973
ROSA CAYETANO CUENCO, petitioners,
vs.
THE HONORABLE COURT OF APPEALS, THIRD DIVISION, MANUEL CUENCO,
LOURDES CUENCO, CONCEPCION CUENCO MANGUERRA, CARMEN
CUENCO, CONSUELO CUENCO REYES, and TERESITA CUENCO
GONZALEZ, respondents.

Ambrosio Padilla Law Office for petitioner.
Jalandoni and Jamir for respondents.
TEEHANKEE, J.:
Petition for certiorari to review the decision of respondent Court of
Appeals in CA-G.R. No. 34104-R, promulgated 21 November 1964, and its
subsequent Resolution promulgated 8 July 1964 denying petitioner's
Motion for Reconsideration.
The pertinent facts which gave rise to the herein petition follow:
On 25 February 1964 Senator Mariano Jesus Cuenco died at the Manila
Doctors' Hospital, Manila. He was survived by his widow, the herein
petitioner, and their two (2) minor sons, Mariano Jesus, Jr. and Jesus
Salvador, both surnamed Cuenco, all residing at 69 Pi y Margal St., Sta.
Mesa Heights, Quezon City, and by his children of the first marriage,
respondents herein, namely, Manuel Cuenco, Lourdes Cuenco,
Concepcion Cuenco Manguera, Carmen Cuenco, Consuelo Cuenco
Reyes and Teresita Cuenco Gonzales, all of legal age and residing in
Cebu.
On 5 March 1964, (the 9th day after the death of the late
Senator)1 respondent Lourdes Cuenco filed a Petition for Letters of
Administration with the court of first instance of Cebu (Sp. Proc. No. 2433-
R), alleging among other things, that the late senator died intestate in
Manila on 25 February 1964; that he was a resident of Cebu at the time of
his death; and that he left real and personal properties in Cebu and
Quezon City. On the same date, the Cebu court issued an order setting
the petition for hearing on 10 April 1964, directing that due notice be
given to all the heirs and interested persons, and ordering the requisite
publication thereof at LA PRENSA, a newspaper of general circulation in
the City and Province of Cebu.
The aforesaid order, however, was later suspended and cancelled and a
new and modified one released on 13 March 1964, in view of the fact
that the petition was to be heard at Branch II instead of Branch I of the
said Cebu court. On the same date, a third order was further issued
stating that respondent Lourdes Cuenco's petition for the appointment of
a special administrator dated 4 March 1964 was not yet ready for the
consideration of the said court, giving as reasons the following:
12
It will be premature for this Court to act thereon, it not
having yet regularly acquired jurisdiction to try this
proceeding, the requisite publication of the notice of
hearing not yet having been complied with. Moreover,
copies of the petition have not been served on all of
the heirs specified in the basic petition for the issuance
of letters of administration.2
In the meantime, or specifically on 12 March 1964, (a week after the filing
of the Cebu petition) herein petitioner Rosa Cayetano Cuenco filed a
petition with the court of first instance of Rizal (Quezon City) for
the probate of the deceased's last will and testament and for the
issuance of letters testamentary in her favor, as the surviving widow and
executrix in the said last will and testament. The said proceeding was
docketed as Special Proceeding No. Q-7898.
Having learned of the intestate proceeding in the Cebu court, petitioner
Rosa Cayetano Cuenco filed in said Cebu court an Opposition and
Motion to Dismiss, dated 30 March 1964, as well as an Opposition to
Petition for Appointment of Special Administrator, dated 8 April 1964.
On 10 April 1964, the Cebu court issued an order holding in abeyance its
resolution on petitioner's motion to dismiss "until after the Court of First
Instance of Quezon City shall have acted on the petition for probate of
that document purporting to be the last will and testament of the
deceased Don Mariano Jesus Cuenco."3 Such order of the Cebu court
deferring to the probate proceedings in the Quezon City court was
neither excepted to nor sought by respondents to be reconsidered or set
aside by the Cebu court nor did they challenge the same by certiorari or
prohibition proceedings in the appellate courts.
Instead, respondents filed in the Quezon City court an Opposition and
Motion to Dismiss, dated 10 April 1964, opposing probate of the will and
assailing the jurisdiction of the said Quezon City court to entertain
petitioner's petition for probate and for appointment as executrix in Sp.
Proc. No. Q-7898 in view of the alleged exclusive jurisdiction vested by her
petition in the Cebu court in Sp. Proc. No. 2433-R. Said respondent prayed
that Sp. Proc. No. Q-7898 be dismissed for lack of
jurisdiction and/or improper venue.
In its order of 11 April 1964, the Quezon City court denied the motion to
dismiss, giving as a principal reason the "precedence of probate
proceeding over an intestate proceeding."4 The said court further found
in said order that the residence of the late senator at the time of his
death was at No. 69 Pi y Margal, Sta. Mesa Heights, Quezon City. The
pertinent portion of said order follows:

On the question of residence of the decedent,
paragraph 5 of the opposition and motion to dismiss
reads as follows: "that since the decedent Don
Mariano Jesus Cuenco was a resident of the City of
Cebu at the time of his death, the aforesaid petition
filed by Rosa Cayetano Cuenco on 12 March 1964 was
not filed with the proper Court (wrong venue) in view
of the provisions of Section 1 of Rule 73 of the New
Rules of Court ...". From the aforequoted allegation,
the Court is made to understand that the oppositors
do not mean to say that the decedent being a
resident of Cebu City when he died, the intestate
proceedings in Cebu City should prevail over the
probate proceedings in Quezon City, because as
stated above the probate of the will should take
precedence, but that the probate proceedings should
be filed in the Cebu City Court of First Instance. If the
last proposition is the desire of the oppositors as
understood by this Court, that could not also be
entertained as proper because paragraph 1 of the
petition for the probate of the will indicates that Don
Mariano Jesus Cuenco at the time of his death was a
resident of Quezon City at 69 Pi y Margal. Annex A
(Last Will and Testament of Mariano Jesus Cuenco) of
the petition for probate of the will shows that the
decedent at the time when he executed his Last Will
clearly stated that he is a resident of 69 Pi y Margal,
Sta. Mesa Heights, Quezon City, and also of the City of
Cebu. He made the former as his first choice and the
latter as his second choice of residence." If a party has
two residences, the one will be deemed or presumed
to his domicile which he himself selects or considers to
be his home or which appears to be the center of his
affairs. The petitioner, in thus filing the instant petition
before this Court, follows the first choice of residence
of the decedent and once this court acquires
jurisdiction of the probate proceeding it is to the
exclusion of all others.5
Respondent Lourdes Cuenco's motion for reconsideration of the Quezon
City court's said order of 11 April 1964 asserting its exclusive jurisdiction
over the probate proceeding as deferred to by the Cebu court
was denied on 27 April 1964 and a second motion for reconsideration
dated 20 May 1964 was likewise denied.
On 11 May 1964, pursuant to its earlier order of 11 April 1964, the hearing
for probate of the last will of the decedent was called three times at half-
13
hour intervals, but notwithstanding due notification none of the oppositors
appeared and the Quezon City court proceeded at 9:00 a.m. with the
hearing in their absence.
As per the order issued by it subsequently on 15 May 1964, the Quezon
City court noted that respondents-oppositors had opposed probate
under their opposition and motion to dismiss on the following grounds:
(a) That the will was not executed and attested as
required by law;
(b) That the will was procured by undue and improper
pressure and influence on the part of the beneficiary
or some other persons for his benefit;
(c) That the testator's signature was procured by fraud
and/or that the testator acted by mistake and did not
intend that the instrument he signed should be his will
at the time he affixed his signature thereto.6
The Quezon City court further noted that the requisite publication of the
notice of the hearing had been duly complied with and that all the heirs
had been duly notified of the hearing, and after receiving the testimony
of the three instrumental witnesses to the decedent's last will, namely
Atty. Florencio Albino, Dr. Guillermo A. Picache and Dr. Jose P. Ojeda,
and of the notary public, Atty. Braulio A. Arriola, Jr., who ratified the said
last will, and the documentary evidence (such as the decedent's
residence certificates, income tax return, diplomatic passport, deed of
donation) all indicating that the decedent was a resident of 69 Pi y
Margal St., Quezon City, as also affirmed by him in his last will, the Quezon
City court in its said order of 15 May 1964 admitted to probate the late
senator's last will and testament as having been "freely and voluntarily
executed by the testator" and "with all formalities of the law" and
appointed petitioner-widow as executrix of his estate without bond
"following the desire of the testator" in his will as probated.
Instead of appealing from the Quezon City court's said order admitting
the will to probate and naming petitioner-widow as executrix thereof,
respondents filed a special civil action of certiorari and prohibition with
preliminary injunction with respondent Court of Appeals (docketed as
case CA-G.R. No. 34104-R) to bar the Rizal court from proceeding with
case No. Q-7898.

On 21 November 1964, the Court of Appeals rendered a decision in favor
of respondents (petitioners therein) and against the herein petitioner,
holding that:
Section 1, Rule 73, which fixes the venue in
proceedings for the settlement of the estate of a
deceased person, covers both testate and intestate
proceedings. Sp. Proc. 2433-R of the Cebu CFI having
been filed ahead, it is that court whose jurisdiction was
first invoked and which first attached. It is that court
which can properly and exclusively pass upon the
factual issues of (1) whether the decedent left or did
not leave a valid will, and (2) whether or not the
decedent was a resident of Cebu at the time of his
death.
Considering therefore that the first proceeding was
instituted in the Cebu CFI (Special Proceeding 2433-R),
it follows that the said court must exercise jurisdiction to
the exclusion of the Rizal CFI, in which the petition for
probate was filed by the respondent Rosa Cayetano
Cuenco (Special Proceeding Q-7898). The said
respondent should assert her rights within the
framework of the proceeding in the Cebu CFI, instead
of invoking the jurisdiction of another court.
The respondents try to make capital of the fact that on
March 13, 1964, Judge Amador Gomez of the Cebu
CFI, acting in Sp. Proc. 2433-R, stated that the petition
for appointment of special administrator was "not yet
ready for the consideration of the Court today. It
would be premature for this Court to act thereon, it not
having yet regularly acquired jurisdiction to try this
proceeding ... . " It is sufficient to state in this
connection that the said judge was certainly not
referring to the court's jurisdiction over the res, not to
jurisdiction itself which is acquired from the moment a
petition is filed, but only to the exercise of jurisdiction in
relation to the stage of the proceedings. At all events,
jurisdiction is conferred and determined by law and
does not depend on the pronouncements of a trial
judge.
The dispositive part of respondent appellate court's judgment provided
as follows:
14
ACCORDINGLY, the writ of prohibition will issue,
commanding and directing the respondent Court of
First Instance of Rizal, Branch IX, Quezon City, and the
respondent Judge Damaso B. Tengco to refrain
perpetually from proceeding and taking any action in
Special Proceeding Q-7898 pending before the said
respondent court. All orders heretofore issued and
actions heretofore taken by said respondent court and
respondent Judge, therein and connected therewith,
are hereby annulled. The writ of injunction heretofore
issued is hereby made permanent. No pronouncement
as to costs.
Petitioner's motion for reconsideration was denied in a resolution of
respondent Court of Appeals, dated 8 July 1965; hence the herein
petition for review on certiorari.
The principal and decisive issue at bar is, theretofore, whether the
appellate court erred in law in issuing the writ of prohibition against the
Quezon City court ordering it to refrain perpetually from proceeding with
the testateproceedings and annulling and setting aside all its orders and
actions, particularly its admission to probate of the decedent's last will
and testament and appointing petitioner-widow as executrix thereof
without bond in compliance with the testator's express wish in his
testament. This issue is tied up with the issue submitted to the appellate
court, to wit, whether the Quezon City court acted without jurisdiction or
with grave abuse of discretion in taking cognizance and assuming
exclusive jurisdiction over the probate proceedings filed with it, in
pursuance of the Cebu court's order of 10 April 1964
expressly consenting in deference to the precedence of probate over
intestate proceedings that it (the Quezon City court) should first act "on
the petition for probate of the document purporting to be the last will
and testament of the deceased Don Mariano Jesus Cuenco" - which
order of the Cebu court respondents never questioned nor challenged
by prohibition or certiorari proceedings and thus enabled the Quezon
City court to proceed without any impediment or obstruction, once it
denied respondent Lourdes Cuenco's motion to dismiss the probate
proceeding for alleged lack of jurisdiction or improper venue, to proceed
with the hearing of the petition and to admit the will to probate upon
having been satisfied as to its due execution and authenticity.
The Court finds under the above-cited facts that the appellate court
erred in law in issuing the writ of prohibition against the Quezon City court
from proceeding with the testate proceedings and annulling and setting
aside all its orders and actions, particularly its admission to probate of the
deceased's last will and testament and appointing petitioner-widow as

executrix thereof without bond pursuant to the deceased testator's
express wish, for the following considerations: —
1. The Judiciary Act7 concededly confers original jurisdiction upon all
Courts of First Instance over "all matter of probate, both of testate and
intestate estates." On the other hand, Rule 73, section of the Rules of
Court lays down the rule of venue, as the very caption of the Rule
indicates, and in order to prevent conflict among the different courts
which otherwise may properly assume jurisdiction from doing so, the Rule
specifies that "the court first taking cognizance of the settlement of the
estate of a decedent, shall exercise jurisdiction to the exclusion of all
other courts." The cited Rule provides:
Section 1. Where estate of deceased persons settled. If
the decedent is an inhabitant of the Philippines at the
time of his death, whether a citizen or an alien, his will
shall be proved, or letters of administration granted,
and his estate settled, in the Court of First Instance in
the Province in which he resides at the time of his
death, and if he is an inhabitant of a foreign country,
the Court of First Instance of the province in which he
had estate. The court first taking cognizance of
the settlement of the estate of a decedent,
shall exercise jurisdiction to the exclusion of all other
courts. The jurisdiction assumed by a court, so far as it
depends on the place of residence, of the decedent,
or of the location of his estate, shall not be contested
in a suit or proceeding, except in an appeal from that
court, in the original case, or when the want of
jurisdiction appears on the record. (Rule 73)8
It is equally conceded that the residence of the deceased or the
location of his estate is not an element of jurisdiction over the subject
matter but merely of venue. This was lucidly stated by the late Chief
Justice Moran in Sy Oa vs. Co Ho9 as follows:
We are not unaware of existing decisions to the effect
that in probate cases the place of residence of the
deceased is regarded as a question of jurisdiction over
the subject-matter. But we decline to follow this view
because of its mischievous consequences. For
instance, a probate case has been submitted in good
faith to the Court of First Instance of a province where
the deceased had not resided. All the parties,
however, including all the creditors, have submitted
themselves to the jurisdiction of the court and the case
15
is therein completely finished except for a claim of a
creditor who also voluntarily filed it with said court but
on appeal from an adverse decision raises for the first
time in this Court the question of jurisdiction of the trial
court for lack of residence of the deceased in the
province. If we consider such question of residence as
one affecting the jurisdiction of the trial court over the
subject-matter, the effect shall be that the whole
proceedings including all decisions on the different
incidents which have arisen in court will have to
be annulled and the same case will have to
be commenced anew before another court of
the same rank in another province. That this is
of mischievous effect in the prompt administration of
justice is too obvious to require comment. (Cf.
Tanunchuan vs. Dy Buncio & Co., G.R. No. 48206,
December 31, 1942) Furthermore, section 600 of Act
No. 190, 10 providing that the estate of a deceased
person shall be settled in the province where he had
last resided, could not have been intended as defining
the jurisdiction of the probate court over the subject-
matter, because such legal provision is contained in a
law of procedure dealing merely with procedural
matters, and, as we have said time and again,
procedure is one thing and jurisdiction over the subject
matter is another. (Attorney-General vs. Manila
Railroad Company, 20 Phil. 523.) The law of jurisdiction
— Act No. 136, 11Section 56, No. 5 — confers upon
Courts of First Instance jurisdiction over all probate
cases independently of the place of residence of the
deceased. Since, however, there are many courts of
First Instance in the Philippines, the Law of Procedure,
Act No. 190, section 600, fixes the venue or the place
where each case shall be brought. Thus, the place
of residence of the deceased is not an element of
jurisdiction over the subject-matter
but merely of venue. And it is upon this ground that in
the new Rules of Court the province where the estate
of a deceased person shall be settled is properly
called "venue".
It should be noted that the Rule on venue does not state that the court
with whom the estate or intestate petition is first filed acquires exclusive
jurisdiction.

The Rule precisely and deliberately provides that "the court first taking
cognizance of the settlement of the estate of a decedent, shall exercise
jurisdiction to the exclusion of all other courts."
A fair reading of the Rule — since it deals with venue and comity
between courts of equal and co-ordinate jurisdiction — indicates that the
court with whom the petition is first filed, must also first take cognizance of
the settlement of the estate in order to exercise jurisdiction over it to the
exclusion of all other courts.
Conversely, such court, may upon learning that a petition for probate of
the decedent's last will has been presented in another court where the
decedent obviously had his conjugal domicile and resided with his
surviving widow and their minor children, and that the allegation of
the intestate petition before it stating that the decedent
died intestatemay be actually false, may decline to take cognizance of
the petition and hold the petition before it in abeyance, and instead
defer to the second court which has before it the petition for probate of
the decedent's alleged last will.
2. This exactly what the Cebu court did. Upon petitioner-widow's filing
with it a motion to dismiss Lourdes' intestate petition, it issued its order
holding in abeyance its action on the dismissal motion and deferred to
the Quezon City court, awaiting its action on the petition
for probate before that court. Implicit in the Cebu court's order was that if
the will was duly admitted to probate, by the Quezon City court, then it
would definitely decline to take cognizance of Lourdes' intestate petition
which would thereby be shown to be false and improper, and leave
the exercise of jurisdiction to the Quezon City court, to the exclusion of all
other courts. Likewise by its act of deference, the Cebu court left it to the
Quezon City court to resolve the question between the parties whether
the decedent's residence at the time of his death was in Quezon City
where he had his conjugal domicile rather than in Cebu City as claimed
by respondents. The Cebu court thus indicated that it would decline to
take cognizance of the intestate petition before it and instead defer to
the Quezon City court, unless the latter would make a negative finding as
to the probate petition and the residence of the decedent within its
territory and venue.
3. Under these facts, the Cebu court could not be held to have acted
without jurisdiction or with grave abuse of jurisdiction in declining to take
cognizance of the intestate petition and deferring to the Quezon City
court.
16
Necessarily, neither could the Quezon City court be deemed to have
acted without jurisdiction in taking cognizance of and acting on the
probate petition since under Rule 73, section 1, the Cebu court must first
take cognizance over the estate of the decedent and must exercise
jurisdiction to exclude all other courts, which the Cebu court declined to
do. Furthermore, as is undisputed, said rule only lays down a rule
of venue and the Quezon City court indisputably had at least equal and
coordinate jurisdiction over the estate.
Since the Quezon City court took cognizance over the probate petition
before it and assumed jurisdiction over the estate, with the consent and
deference of the Cebu court, the Quezon City court should be left now,
by the same rule of venue of said Rule 73, to exercise jurisdiction to the
exclusion of all other courts.
Under the facts of the case and where respondents submitted to the
Quezon City court their opposition to probate of the will, but failed to
appear at the scheduled hearing despite due notice, the Quezon City
court cannot be declared, as the appellate court did, to have acted
without jurisdiction in admitting to probate the decedent's will and
appointing petitioner-widow as executrix thereof in accordance with the
testator's testamentary disposition.
4. The relatively recent case of Uriarte vs. Court of First Instance of Negros
Occidental 12 with facts analogous to the present case 13 is authority
against respondent appellate court's questioned decision.
In said case, the Court upheld the doctrine of precedence of probate
proceedings over intestate proceedings in this wise:
It can not be denied that a special proceeding
intended to effect the distribution of the estate of a
deceased person, whether in accordance with the
law on intestate succession or in accordance with his
will, is a "probate matter" or a proceeding for the
settlement of his estate. It is equally true, however, that
in accordance with settled jurisprudence in this
jurisdiction, testate proceedings for the settlement of
the estate of a deceased person take precedence
over intestate proceedings for the same purpose. Thus
it has been held repeatedly that, if in the course of
intestate proceedings pending before a court of first
instance it is found that the decedent had left a last
will, proceedings for the probate of the latter should
replace the intestate proceedings even if at that state
 17

an administrator had already been appointed, the enabling the Manila Court not only to appoint an
latter being required to render final account and turn administrator with the will annexed but also to admit
over the estate in his possession to the executor said will to probate more than five months earlier, or
subsequently appointed. This however, is understood more specifically, on October 31, 1962. To allow him
to be without prejudice that should the alleged last will now to assail the exercise of jurisdiction over the
be rejected or is disapproved, the proceeding shall probate of the will by the Manila Court and the validity
continue as an intestacy. As already adverted to, this is of all the proceedings had in Special Proceeding No.
a clear indication that proceedings for the probate of 51396 would put a premium on his negligence.
a will enjoy priority over intestate proceedings. 14 Moreover, it must be remembered that this Court is not
inclined to annul proceedings regularly had in a lower
court even if the latter was not the proper
The Court likewise therein upheld the jurisdiction of the second court, (in
venue therefor, if the net result would be to have the
this case, the Quezon City court) although opining that certain
same proceedings repeated in some other court of
considerations therein "would seem to support the view that [therein
similar jurisdiction; more so in a case like the present
respondent] should have submitted said will for probate to the Negros
where the objection against said proceedings is raised
Court, [in this case, the Cebu court] either in a separate special
too late. 16
proceeding or in an appropriate motion for said purpose filed in the
already pending Special Proceeding No. 6344," 15 thus:
5. Under Rule 73, section 1 itself, the Quezon City
court's assumption of jurisdiction over the decedent's estate on the basis
But the fact is that instead of the aforesaid will being presented for
of the will duly presented for probate by petitioner-widow and finding
probate to the Negros Court, Juan Uriarte Zamacona filed the petition for
that Quezon City was the first choiceof residence of the decedent, who
the purpose with the Manila Court. We can not accept petitioner's
had his conjugal home and domicile therein — with the deference in
contention in this regard that the latter court had no jurisdiction to
comity duly given by the Cebu court — could not be contested except
consider said petition, albeit we say that it was not the proper
by appeal from said court in the original case. The last paragraph of said
venuetherefor.
Rule expressly provides:

It is well settled in this jurisdiction that wrong venue is

... The jurisdiction assumed by a court, so far as it
merely a waivable procedural defect, and, in the light
depends on the place of residence of the decedent,
of the circumstances obtaining in the instant case, we
or of the location of his estate, shall not be contested
are of the opinion, and so hold, that petitioner has
in a suit or proceeding, except in an appeal from that
waived the right to raise such objection or is precluded
court, in the original case, or when the want of
from doing so by laches. It is enough to consider in this
jurisdiction appears on the record. (Rule 73)
connection that petitioner knew of the existence of a
will executed by Juan Uriarte y Goite since December
19, 1961 when Higinio Uriarte filed his opposition to the The exception therein given, viz, "when the want of jurisdiction appears
initial petition filed in Special Proceeding No. 6344; that on the record" could probably be properly invoked, had
petitioner likewise was served with notice of the such deference in comity of the Cebu court to the Quezon City
existence (presence) of the alleged last will in the court not appeared in the record, or had the record otherwise shown
Philippines and of the filing of the petition for its that the Cebu court had taken cognizance of the petition before it and
probate with the Manila Court since August 28, 1962 assumed jurisdiction.
when Juan Uriarte Zamacona filed a motion for the
dismissal of Special Proceeding No. 6344. All these
6. On the question that Quezon City established to be the residence of
notwithstanding, it was only on April 15, 1963 that he
the late senator, the appellate court while recognizing that "the issue is a
filed with the Manila Court in Special Proceeding No.
legitimate one" held in reliance on Borja vs. Tan 17 that.
51396 an Omnibus motion asking for leave to intervene
and for the dismissal and annulment of all the
proceedings had therein up to that date; thus

... The issue of residence comes within the
competence of whichever court is considered to
prevail in the exercise jurisdiction - in this case, the
Court of First Instance of Cebu as held by this Court.
Parenthetically, we note that the question of the
residence of the deceased is a serious one, requiring
both factual and legal resolution on the basis of ample
evidence to be submitted in the ordinary course of
procedure in the first instance, particularly in view of
the fact that the deceased was better known as the
Senator from Cebu and the will purporting to be his
also gives Cebu, besides Quezon City, as his residence.
We reiterate that this matter requires airing in the
proper court, as so indicated in the leading and
controlling case of Borja vs. Hon. Bienvenido Tan, et al.,
G.R. L-7792, July 27, 1955.
In the case at bar, however, the Cebu court declined to take
cognizance of the intestate petition first filed with it and deferred to
the testate proceedings filed with the Quezon City court and in effect
asked the Quezon City court to determine the residence of the decedent
and whether he did leave a last will and testament upon which would
depend the proper venue of the estate proceedings, Cebu or Quezon
City. The Quezon City court having thus determined in effect for both
courts — at the behest and with the deference and consent of the Cebu
court — that Quezon City was the actual residence of the decedent who
died testate and therefore the proper venue, the Borja ruling would seem
to have no applicability. It would not serve the practical ends of justice to
still require the Cebu court, if the Borja ruling is to be held applicable and
as indicated in the decision under review, to determine for itself the
actual residence of the decedent (when the Quezon City court had
already so determined Quezon City as the actual residence at the Cebu
court's behest and respondents have not seriously questioned this factual
finding based on documentary evidence) and if the Cebu court should
likewise determine Quezon City as the actual residence, or its contrary
finding reversed on appeal, only then to allow petitioner-widow after
years of waiting and inaction to institute the corresponding proceedings
in Quezon City.
7. With more reason should the Quezon City proceedings be upheld
when it is taken into consideration that Rule 76, section 2 requires that the
petition for allowance of a will must show: "(a) the jurisdictional facts."
Such "jurisdictional facts" in probate proceedings, as held by the Court
in Fernando vs. Crisostomo 18 " are the death of the decedent, his
residence at the time of his death in the province where the probate
court is sitting, or if he is an inhabitant of a foreign country, his having left
his estate in such province."
18
This tallies with the established legal concept as restated by Moran that
"(T)he probate of a will is a proceeding in rem. The notice by publication
as a pre-requisite to the allowance of a will, is a constructive notice to the
whole world, and when probate is granted, the judgment of the court
is binding upon everybody, even against the State. The probate of a will
by a court having jurisdiction thereof is conclusive as to its due execution
and validity." 19 The Quezon City court acted regularly within its
jurisdiction (even if it were to be conceded that Quezon City was not the
proper venue notwithstanding the Cebu court's giving way and deferring
to it,) in admitting the decedent's last will to probate and naming
petitioner-widow as executrix thereof. Hence, the Quezon city court's
action should not be set aside by a writ of prohibition for supposed lack
of jurisdiction as per the appellate court's appealed decision, and should
instead be sustained in line with Uriarte, supra, where the Court, in
dismissing the certiorari petition challenging the Manila court's action
admitting the decedent's will to probate and distributing the estate in
accordance therewith in the second proceeding, held that "it must be
remembered that this Court is not inclined to annul proceedings regularly
had in a lower court even if the latter was not the proper venue
therefor, if the net result would be to have the same proceedings
repeated in some other court of similar jurisdiction." As stressed by Chief
Justice Moran in Sy Oa, supra, "the mischievous effect in the
administration of justice" of considering the question of residence as
affecting the jurisdiction of the trial court and annulling the whole
proceedings only to start all over again the same proceedings before
another court of the same rank in another province "is too obvious to
require comment."
8. If the question of jurisdiction were to be made to depend only on who
of the decedent's relatives gets first to file a petition for settlement of the
decedent's estate, then the established jurisprudence of the Court that
Rule 73, section 1 provides only a rule of venue in order to preclude
different courts which may properly assume jurisdiction from doing so and
creating conflicts between them to the detriment of the administration of
justice, and that venue is waivable, would be set at naught. As between
relatives who unfortunately do not see eye to eye, it would be converted
into a race as to who can file the petition faster in the court of his/her
choice regardless of whether the decedent is still in cuerpo presente and
in disregard of the decedent's actual last domicile, the fact that he left a
last will and testament and the right of his surviving widow named as
executrix thereof. Such dire consequences were certainly not intended
by the Rule nor would they be in consonance with public policy and the
orderly administration of justice.
9. It would finally be unjust and inequitable that petitioner-widow, who
under all the applicable rules of venue, and despite the fact that the
Cebu court (where respondent Lourdes Cuenco had filed
 19

an intestate petition in the Cebu court earlier by a week's time on 5 the Quezon City court, thus leaving the latter free (pursuant to the Cebu
March 1964) deferred to the Quezon City court where petitioner had court's order of deference) to exercise jurisdiction and admit the
within fifteen days (on March 12, 1964) after the decedent's death (on decedent's will to probate.
February 25, 1964) timely filed the decedent's last will and petitioned for
letters testamentary and is admittedly entitled to preference in the
For the same reasons, neither could the Quezon City court be held to
administration of her husband's estate, 20 would be compelled under the
have acted without jurisdiction nor with grave abuse of discretion in
appealed decision to have to go all the way to Cebu and submit anew
admitting the decedent's will to probate and appointing petitioner as
the decedent's will there for probate either in a new proceeding or by
executrix in accordance with its testamentary disposition, in the light of
asking that the intestate proceedings be convertedinto
the settled doctrine that the provisions of Rule 73, section 1 lay down only
a testate proceeding — when under the Rules, the proper venue for
a rule of venue, not of jurisdiction.
the testate proceedings, as per the facts of record and as already
affirmed by the Quezon City court is Quezon City, where the decedent
and petitioner-widow had their conjugal domicile. Since respondents undisputedly failed to appeal from the Quezon City
court's order of May 15, 1964 admitting the will to probate and
appointing petitioner as executrix thereof, and said court concededly
It would be an unfair imposition upon petitioner as the one named and
has jurisdiction to issue said order, the said order of probate has long
entitled to be executrix of the decedent's last will and settle his estate in
since become final and can not be overturned in a special civic action
accordance therewith, and a disregard of her rights under the rule on
of prohibition.
venue and the law on jurisdiction to require her to spend much more
time, money and effort to have to go from Quezon City to the Cebu
court everytime she has an important matter of the estate to take up with 11. Finally, it should be noted that in the Supreme Court's exercise of its
the probate court. supervisory authority over all inferior courts, 22 it may properly determine,
as it has done in the case at bar, that venue was properly assumed by
and transferredto the Quezon City court and that it is the interest of
It would doubly be an unfair imposition when it is considered that under
justice and in avoidance of needless delay that the Quezon City court's
Rule 73, section 2, 21 since petitioner's marriage has been dissolved with
exercise of jurisdiction over the testate estate of the decedent (with the
the death of her husband, their community property and conjugal estate
due deference and consent of the Cebu court) and its admission to
have to be administered and liquidated in the estate proceedings of the
probate of his last will and testament and appointment of petitioner-
deceased spouse. Under the appealed decision, notwithstanding that
widow as administratrix without bond in pursuance of the decedent's
petitioner resides in Quezon City, and the proper venue of
express will and all its orders and actions taken in the testate proceedings
the testate proceeding was in Quezon City and the Quezon City court
before it be approved and authorized rather than to annul all such
properly took cognizance and exercised exclusive jurisdiction with the
proceedings regularly had and to repeat and duplicate the same
deference in comity and consent of the Cebu court, such proper
proceedings before the Cebu court only to revert once more to the
exercise of jurisdiction would be nullified and petitioner would have to
Quezon City court should the Cebu court find that indeed and in fact, as
continually leave her residence in Quezon City and go to Cebu to settle
already determined by the Quezon City court on the strength of
and liquidate even her own community property and conjugal
incontrovertible documentary evidence of record, Quezon City was the
estate with the decedent.
conjugal residence of the decedent.

10. The Court therefore holds under the facts of record that the Cebu
ACCORDINGLY, judgment is hereby rendered reversing the appealed
court did not act without jurisdiction nor with grave abuse of
decision and resolution of the Court of Appeals and the petition
discretion in declining to take cognizance of the intestate petition and
for certiorari and prohibition with preliminary injunction originally filed by
instead deferring to the testateproceedings filed just a week later by
respondents with the Court of Appeals (CA-G.R. No. 34104-R) is ordered
petitioner as surviving widow and designated executrix of the decedent's
dismissed. No costs.
last will, since the record before it (the petitioner's opposition and motion
to dismiss) showed the falsity of the allegation in the intestate petition that
the decedent had died without a will. It is noteworthy that respondents
never challenged by certiorari or prohibition proceedings the Cebu
court's order of 10 April 1964 deferring to the probate proceedings before [G.R. No. 123486. August 12, 1999]

EUGENIA RAMONAL CODOY, and MANUEL
RAMONAL, petitioners, vs. EVANGELINE R. CALUGAY, JOSEPHINE
SALCEDO, and EUFEMIA PATIGAS, respondents.
DECISION
PARDO, J.:
Before us is a petition for review on certiorari of the decision of the
Court of Appeals[1] and its resolution denying reconsideration, ruling:
Upon the unrebutted testimony of appellant Evangeline Calugay and
witness Matilde Ramonal Binanay, the authenticity of testators
holographic will has been established and the handwriting and signature
therein (exhibit S) are hers, enough to probate said will. Reversal of the
judgment appealed from and the probate of the holographic will in
question be called for. The rule is that after plaintiff has completed
presentation of his evidence and the defendant files a motion for
judgment on demurrer to evidence on the ground that upon the facts
and the law plaintiff has shown no right to relief, if the motion is granted
and the order to dismissal is reversed on appeal, the movant loses his right
to present evidence in his behalf (Sec. 1 Rule 35 Revised Rules of
Court). Judgment may, therefore, be rendered for appellant in the
instant case.
Wherefore, the order appealed from is REVERSED and judgment
rendered allowing the probate of the holographic will of the testator
Matilde Seo Vda. de Ramonal.[2]
The facts are as follows:
On April 6, 1990, Evangeline Calugay, Josephine Salcedo and
Eufemia Patigas, devisees and legatees of the holographic will of the
deceased Matilde Seo Vda. de Ramonal, filed with the Regional Trial
Court, Misamis Oriental, Branch 18, a petition[3] for probate of the
holographic will of the deceased, who died on January 16, 1990.
In the petition, respondents claimed that the deceased Matilde Seo
Vda. de Ramonal, was of sound and disposing mind when she executed
the will on August 30, 1978, that there was no fraud, undue influence, and
duress employed in the person of the testator, and the will was written
voluntarily.
The assessed value of the decedents property, including all real and
personal property was about P400,000.00, at the time of her death.[4]
20
On June 28, 1990, Eugenia Ramonal Codoy and Manuel Ramonal
filed an opposition[5] to the petition for probate, alleging that the
holographic will was a forgery and that the same is even illegible. This
gives an impression that a third hand of an interested party other than
the true hand of Matilde Seo Vda. de Ramonal executed the
holographic will.
Petitioners argued that the repeated dates incorporated or
appearing on the will after every disposition is out of the ordinary. If the
deceased was the one who executed the will, and was not forced, the
dates and the signature should appear at the bottom after the
dispositions, as regularly done and not after every disposition. And
assuming that the holographic will is in the handwriting of the deceased,
it was procured by undue and improper pressure and influence on the
part of the beneficiaries, or through fraud and trickery.
Respondents presented six (6) witnesses and various documentary
evidence. Petitioners instead of presenting their evidence, filed a
demurrer[6] to evidence, claiming that respondents failed to establish
sufficient factual and legal basis for the probate of the holographic will of
the deceased Matilde Seo Vda. de Ramonal.
On November 26, 1990, the lower Court issued an order, the
dispositive portion of which reads:
WHEREFORE, in view of the foregoing consideration, the Demurrer to
Evidence having being well taken, same is granted, and the petition for
probate of the document (Exhibit S) on the purported Holographic Will of
the late Matilde Seo Vda. de Ramonal, is denied for insufficiency of
evidence and lack of merits.[7]
On December 12, 1990, respondents filed a notice of appeal,[8] and
in support of their appeal, the respondents once again reiterated the
testimony of the following witnesses, namely: (1) Augusto Neri; (2)
Generosa Senon; (3) Matilde Ramonal Binanay; (4) Teresita Vedad; (5)
Fiscal Rodolfo Waga; and (6) Evangeline Calugay.
To have a clear understanding of the testimonies of the witnesses,
we recite an account of their testimonies.
Augusto Neri, Clerk of Court, Court of First Instance of Misamis
Oriental, where the special proceedings for the probate of the
holographic will of the deceased was filed. He produced and identified
the. records of the case. The documents presented bear the signature of
the deceased, Matilde Seo Vda. de Ramonal, for the purpose of laying
the basis for comparison of the handwriting of the testatrix, with the
writing treated or admitted as genuine by the party against whom the
evidence is offered.
 21

Generosa Senon, election registrar of Cagayan de Oro, was August 30, 1978
presented to produce and identify the voters affidavit of the
decedent. However, the voters affidavit was not produced for the same
1. My share at Cogon, Raminal Street, for Evangeline Calugay.
was already destroyed and no longer available.

Matilde Ramonal Binanay, testified that the deceased Matilde Seo (Sgd) Matilde Vda de Ramonal
Vda. de Ramonal was her aunt, and that after the death of Matildes
husband, the latter lived with her in her parents house for eleven (11)
August 30, 1978
years, from 1958 to 1969. During those eleven (11) years of close
association with the deceased, she acquired familiarity with her signature
and handwriting as she used to accompany her (deceased Matilde Seo 2. Josefina Salcedo must be given 1,500 square meters at Pinikitan Street.
Vda. de Ramonal) in collecting rentals from her various tenants of
commercial buildings, and the deceased always issued receipts. In (Sgd) Matilde Vda de Ramonal
addition to this, she (witness Matilde Binanay) assisted the deceased in
posting the records of the accounts, and carried personal letters of the
deceased to her creditors. August 30, 1978

Matilde Ramonal Binanay further testified that at the time of the

3. My jewelrys shall be divided among:
death of Matilde Vda. de Ramonal, she left a holographic will dated
August 30, 1978, which was personally and entirely written, dated and
signed, by the deceased and that all the dispositions therein, the dates, 1. Eufemia Patigas
and the signatures in said will, were that of the deceased.

Fiscal Rodolfo Waga testified that before he was appointed City 2. Josefina Salcedo
Fiscal of Cagayan de Oro, he was a practicing lawyer, and handled all
the pleadings and documents signed by the deceased in connection 3. Evangeline Calugay
with the intestate proceedings of her late husband, as a result of which
he is familiar with the handwriting of the latter. He testified that the
(Sgd)Matilde Vda de Ramonal
signature appearing in the holographic will was similar to that of the
deceased, Matilde Seo Vda. de Ramonal, but he can not be sure.
August 30, 1978
The fifth witness presented was Mrs. Teresita Vedad, an employee of
the Department of Environment and Natural Resources, Region 10. She
testified that she processed the application of the deceased for pasture 4. I bequeath my one (1) hectare land at Mandumol, Indahag to
permit and was familiar with the signature of the deceased, since the Evangeline R. Calugay
deceased signed documents in her presence, when the latter was
applying for pasture permit. (Sgd) Matilde Vda de Ramonal

Finally, Evangeline Calugay, one of the respondents, testified that

she had lived with the deceased since birth, and was in fact adopted by "August 30, 1978
the latter. That after a long period of time she became familiar with the
signature of the deceased. She testified that the signature appearing in 5. Give the 2,500 Square Meters at Sta. Cruz Ramonal Village in favor of
the holographic will is the true and genuine signature of Matilde Seo Vda. Evangeline R. Calugay, Helen must continue with the Sta. Cruz, once I am
de Ramonal. no longer around.
The holographic will which was written in Visayan, is translated in
English as follows: (Sgd) Matilde Vda de Ramonal

Instruction August 30, 1978


6. Bury me where my husband Justo is ever buried.
(Sgd) Matilde Vda de Ramonal
"August 30,1978
Gene and Manuel:
"Follow my instruction in order that I will rest peacefully.
Mama
Matilde Vda de Ramonal
On October 9, 1995, the Court of Appeals, rendered
decision[9] ruling that the appeal was meritorious. Citing the decision in
the case of Azaola vs. Singson, 109 Phil. 102, penned by Mr. Justice J. B. L.
Reyes, a recognized authority in civil law, the Court of Appeals held:
x x x even if the genuineness of the holographic will were contested, we
are of the opinion that Article 811 of our present civil code can not be
interpreted as to require the compulsory presentation of three witnesses
to identify the handwriting of the testator, under penalty of having the
probate denied. Since no witness may have been present at the
execution of the holographic will, none being required by law (art. 810,
new civil code), it becomes obvious that the existence of witnesses
possessing the requisite qualifications is a matter beyond the control of
the proponent. For it is not merely a question of finding and producing
any three witnesses; they must be witnesses who know the handwriting
and signature of the testator and who can declare (truthfully, of course,
even if the law does not express) that the will and the signature are in the
handwriting of the testator. There may be no available witness
acquainted with the testators hand; or even if so familiarized, the witness
may be unwilling to give a positive opinion. Compliance with the rule of
paragraph 1 of article 811 may thus become an impossibility.That is
evidently the reason why the second paragraph of article 811 prescribes
that
in the absence of any competent witness referred to in the preceding
paragraph, and if the court deems it necessary, expert testimony may be
resorted to.
22
As can be seen, the law foresees the possibility that no qualified witness
may be found (or what amounts to the same thing, that no competent
witness may be willing to testify to the authenticity of the will), and
provides for resort to expert evidence to supply the deficiency.
It may be true that the rule of this article (requiring that three witnesses be
presented if the will is contested and only one if no contest is had) was
derived from the rule established for ordinary testaments (CF Cabang vs.
Delfinado, 45 PHIL 291; Tolentino v. Francisco, 57 PHIL 742). But it can not
be ignored that the requirement can be considered mandatory only in
case of ordinary testaments, precisely because the presence of at least
three witnesses at the execution of ordinary wills is made by law essential
to their validity (Art. 805). Where the will is holographic, no witness need
be present (art.10), and the rule requiring production of three witnesses
must be deemed merely permissive if absurd results are to be avoided.
Again, under Art.811, the resort to expert evidence is conditioned by the
words if the court deem it necessary, which reveal that what the law
deems essential is that the court should be convinced of the wills
authenticity. Where the prescribed number of witnesses is produced and
the court is convinced by their testimony that the will is genuine, it may
consider it unnecessary to call for expert evidence. On the other hand, if
no competent witness is available, or none of those produced is
convincing, the court may still, and in fact it should resort to handwriting
experts. The duty of the court, in fine, is to exhaust all available lines of
inquiry, for the state is as much interested as the proponent that the true
intention of the testator be carried into effect.
Paraphrasing Azaola vs. Singson, even if the genuineness of the
holographic will were contested, Article 811 of the civil code cannot be
interpreted as to require the compulsory presentation of three witnesses
to identify the handwriting of the testator, under penalty of the having
the probate denied. No witness need be present in the execution of the
holographic will. And the rule requiring the production of three witnesses
is merely permissive. What the law deems essential is that the court is
convinced of the authenticity of the will. Its duty is to exhaust all available
lines of inquiry, for the state is as much interested in the proponent that
the true intention of the testator be carried into effect. And because the
law leaves it to the trial court to decide if experts are still needed, no
unfavorable inference can be drawn from a partys failure to offer expert
evidence, until and unless the court expresses dissatisfaction with the
testimony of the lay witnesses.[10]
According to the Court of Appeals, Evangeline Calugay, Matilde
Ramonal Binanay and other witnesses definitely and in no uncertain terms

testified that the handwriting and signature in the holographic will were
those of the testator herself.
Thus, upon the unrebutted testimony of appellant Evangeline
Calugay and witness Matilde Ramonal Binanay, the Court of Appeals
sustained the authenticity of the holographic will and the handwriting
and signature therein, and allowed the will to probate.
Hence, this petition.
The petitioners raise the following issues:
(1) Whether or not the ruling of the case of Azaola vs. Singson,
109 Phil. 102, relied upon by the respondent Court of
Appeals, was applicable to the case.
(2) Whether or not the Court of Appeals erred in holding that
private respondents had been able to present credible
evidence to prove that the date, text, and signature on
the holographic will were written entirely in the hand of the
testatrix.
(3) Whether or not the Court of Appeals erred in not analyzing
the signatures in the holographic will of Matilde Seo Vda.
de Ramonal.
In this petition, the petitioners ask whether the provisions of Article
811 of the Civil Code are permissive or mandatory. The article provides,
as a requirement for the probate of a contested holographic will, that at
least three witnesses explicitly declare that the signature in the will is the
genuine signature of the testator.
We are convinced, based on the language used, that Article 811 of
the Civil Code is mandatory. The word shall connotes a mandatory
order. We have ruled that shall in a statute commonly denotes an
imperative obligation and is inconsistent with the idea of discretion and
that the presumption is that the word shall, when used in a statute is
mandatory.[11]
Laws are enacted to achieve a goal intended and to guide against
an evil or mischief that aims to prevent. In the case at bar, the goal to
achieve is to give effect to the wishes of the deceased and the evil to be
prevented is the possibility that unscrupulous individuals who for their
benefit will employ means to defeat the wishes of the testator.
So, we believe that the paramount consideration in the present
petition is to determine the true intent of the deceased. An exhaustive
and objective consideration of the evidence is imperative to establish the
true intent of the testator.
23
It will be noted that not all the witnesses presented by the
respondents testified explicitly that they were familiar with the
handwriting of the testator. In the case of Augusto Neri, clerk of court,
Court of First Instance, Misamis Oriental, he merely identified the record of
Special Proceedings No. 427 before said court. He was not presented to
declare explicitly that the signature appearing in the holographic was
that of the deceased.
Generosa E. Senon, the election registrar of Cagayan de Oro City,
was presented to identify the signature of the deceased in the voters
affidavit, which was not even produced as it was no longer available.
Matilde Ramonal Binanay, on the other hand, testified that:
Q. And you said for eleven (11) years Matilde Vda de Ramonal
resided with your parents at Pinikitan, Cagayan de Oro
City. Would you tell the court what was your occupation or how
did Matilde Vda de Ramonal keep herself busy that time?
A. Collecting rentals.
Q. From where?
A. From the land rentals and commercial buildings at Pabayo-Gomez
streets.[12]
xxx
Q. Who sometime accompany her?
A. I sometimes accompany her
Q. In collecting rentals does she issue receipts?
A. Yes, sir.[13]
xxx
Q. Showing to you the receipt dated 23 October 1979, is this the one
you are referring to as one of the receipts which she issued to
them?
A. Yes, sir.
Q. Now there is that signature of Matilde vda. De Ramonal, whose
signature is that Mrs. Binanay?
A. Matilde vda. De Ramonal.
Q. Why do you say that that is a signature of Matilde vda. De
Ramonal?
 24

A. I am familiar with her signature.
Q. Now, you tell the court Mrs. Binanay, whether you know Matilde
vda de Ramonal kept records of the accounts of her tenants?
A. Yes, sir.
Q. Why do you say so?
A. Because we sometimes post a record of accounts in behalf of
Matilde Vda. De Ramonal.
Q. How is this record of accounts made? How is this reflected?
A. In handwritten.[14]
xxx
Q. In addition to collection of rentals, posting records of accounts of
tenants and deed of sale which you said what else did you do
to acquire familiarity of the signature of Matilde Vda De
Ramonal?
What Ms. Binanay saw were pre-prepared receipts and letters of
the deceased, which she either mailed or gave to her tenants. She did
not declare that she saw the deceased sign a document or write a note.
Further, during the cross-examination, the counsel for petitioners
elicited the fact that the will was not found in the personal belongings of
the deceased but was in the possession of Ms. Binanay. She testified that:
Q. Mrs. Binanay, when you were asked by counsel for the petitioners if
the late Matilde Seno vda de Ramonal left a will you said, yes?
A. Yes, sir.
Q. Who was in possession of that will?
A. I.
Q. Since when did you have the possession of the will?
A. It was in my mothers possession.
Q. So, it was not in your possession?

A. Posting records. A. Sorry, yes.

Q. Aside from that? Q. And when did you come into possession since as you said this was
originally in the possession of your mother?
A. Carrying letters.
A. 1985.[17]
Q. Letters of whom?
xxx
A. Matilde
Q. Now, Mrs. Binanay was there any particular reason why your
Q. To whom? mother left that will to you and therefore you have that in your
possession?
A. To her creditors.[15]
A. It was not given to me by my mother, I took that in the aparador
xxx
when she died.
Q. You testified that at the time of her death she left a will. I am
Q. After taking that document you kept it with you?
showing to you a document with its title tugon is this the
document you are referring to? A. I presented it to the fiscal.
A. Yes, sir. Q. For what purpose?
Q. Showing to you this exhibit S, there is that handwritten tugon, whose A. Just to seek advice.
handwriting is this?
Q. Advice of what?
A. My aunt.
A. About the will.[18]
Q. Why do you say this is the handwriting of your aunt?
In her testimony it was also evident that Ms. Binanay kept the fact
A. Because I am familiar with her signature.[16] about the will from petitioners, the legally adopted children of the

deceased. Such actions put in issue her motive of keeping the will a
secret to petitioners and revealing it only after the death of Matilde Seo
Vda. de Ramonal.
In the testimony of Ms. Binanay, the following were established:
Q. Now, in 1978 Matilde Seno Vda de Ramonal was not yet a sickly
person is that correct?
A. Yes, sir.
Q. She was up and about and was still uprightly and she could walk
agilely and she could go to her building to collect rentals, is that
correct?
A. Yes, sir.[19]
xxx
Q. Now, let us go to the third signature of Matilde Ramonal. Do you
know that there are retracings in the word Vda.?
A. Yes, a little. The letter L is continuous.
dated and signed in the handwriting of the testator. She testified that:
Q. And also in Matilde the letter L is continued to letter D?
A. Yes, sir.
Q. Again the third signature of Matilde Vda de Ramonal the letter L in
Matilde is continued towards letter D.
A. Yes, sir.
Q. And there is a retracing in the word Vda.?
A. Yes, sir.[20]
xxx
Q. Now, that was 1979, remember one year after the alleged
holographic will. Now, you identified a document marked as
Exhibit R. This is dated January 8,1978 which is only about eight
months from August 30,1978. Do you notice that the signature
Matilde Vda de Ramonal is beautifully written and legible?
A. Yes, sir the handwriting shows that she was very exhausted.
Q. You just say that she was very exhausted while that in 1978 she was
healthy was not sickly and she was agile. Now, you said she was
exhausted?
A. In writing.
25
Q. How did you know that she was exhausted when you were not
present and you just tried to explain yourself out because of the
apparent inconsistencies?
A. That was I think. (sic)
Q. Now, you already observed this signature dated 1978, the same
year as the alleged holographic will. In exhibit I, you will notice
that there is no retracing; there is no hesitancy and the signature
was written on a fluid movement. x x x And in fact , the name
Eufemia R. Patigas here refers to one of the petitioners?
A. Yes, sir.
Q. You will also notice Mrs. Binanay that it is not only with the
questioned signature appearing in the alleged holographic will
marked as Exhibit X but in the handwriting themselves, here you
will notice the hesitancy and tremors, do you notice that?
A. Yes, sir.[21]
Evangeline Calugay declared that the holographic will was written,
Q. You testified that you stayed with the house of the spouses Matilde
and Justo Ramonal for the period of 22 years. Could you tell the
court the services if any which you rendered to Matilde
Ramonal?
A. During my stay I used to go with her to the church, to the market
and then to her transactions.
Q. What else? What services that you rendered?
A. After my college days I assisted her in going to the bank, paying
taxes and to her lawyer.
Q. What was your purpose of going to her lawyer?
A. I used to be her personal driver.
Q. In the course of your stay for 22 years did you acquire familiarity of
the handwriting of Matilde Vda de Ramonal?
A. Yes, sir.
Q. How come that you acquired familiarity?
A. Because I lived with her since birth.[22]
xxx

Q. Now, I am showing to you Exhibit S which is captioned tugon
dated Agosto 30, 1978 there is a signature here below item No.
1, will you tell this court whose signature is this?
A. Yes, sir, that is her signature.
Q. Why do you say that is her signature?
A. I am familiar with her signature.[23]
So, the only reason that Evangeline can give as to why she was
familiar with the handwriting of the deceased was because she lived with
her since birth. She never declared that she saw the deceased write a
note or sign a document.
The former lawyer of the deceased, Fiscal Waga, testified that:
Q. Do you know Matilde Vda de Ramonal?
A. Yes, sir I know her because she is my godmother the husband is my
godfather. Actually I am related to the husband by
consanguinity.
Q. Can you tell the name of the husband?
A. The late husband is Justo Ramonal.[24]
xxx
Q. Can you tell this court whether the spouses Justo Ramonal and
Matilde Ramonal have legitimate children?
A. As far as I know they have no legitimate children.[25]
xxx
Q. You said after becoming a lawyer you practice
profession? Where?
A. Here in Cagayan de Oro City.
Q. Do you have services rendered with the deceased Matilde vda de
Ramonal?
A. I assisted her in terminating the partition, of properties.
Q. When you said assisted, you acted as her counsel? Any sort of
counsel as in what case is that, Fiscal?
A. It is about the project partition to terminate the property, which
was under the court before.[26]
xxx
26
Q. Appearing in special proceeding no. 427 is the amended inventory
which is marked as exhibit N of the estate of Justo Ramonal and
there appears a signature over the type written word Matilde
vda de Ramonal, whose signature is this?
A. That is the signature of Matilde Vda de Ramonal.
Q. Also in exhibit n-3, whose signature is this?
A. This one here that is the signature of Mrs. Matilde vda de
Ramonal.[27]
xxx
Q. Aside from attending as counsel in that Special Proceeding Case
No. 427 what were the other assistance wherein you were
rendering professional service to the deceased Matilde Vda de
Ramonal?
A. I can not remember if I have assisted her in other matters but if
there are documents to show that I have assisted then I can
recall.[28]
xxx
Q. Now, I am showing to you exhibit S which is titled tugon, kindly go
over this document, Fiscal Waga and tell the court whether you
are familiar with the handwriting contained in that document
marked as exhibit S?
A. I am not familiar with the handwriting.
Q. This one, Matilde Vda de Ramonal, whose signature is this?
A. I think this signature here it seems to be the signature of Mrs.
your Matilde vda de Ramonal.
Q. Now, in item No. 2 there is that signature here of Matilde Vda de
Ramonal, can you tell the court whose signature is this?
A. Well, that is similar to that signature appearing in the project of
partition.
Q. Also in item no. 3 there is that signature Matilde Vda de Ramonal,
can you tell the court whose signature is that?
A. As I said, this signature also seems to be the signature of Matilde
vda de Ramonal.
Q. Why do you say that?
A. Because there is a similarity in the way it is being written.

Q. How about this signature in item no. 4, can you tell the court whose
signature is this?
A. The same is true with the signature in item no. 4. It seems that they
are similar.[29]
xxx
Q. Mr. Prosecutor, I heard you when you said that the signature of
Matilde Vda de Ramonal Appearing in exhibit S seems to be the
signature of Matilde vda de Ramonal?
A. Yes, it is similar to the project of partition.
Q. So you are not definite that this is the signature of Matilde vda de
Ramonal. You are merely supposing that it seems to be her
signature because it is similar to the signature of the project of
partition which you have made?
A. That is true.[30]
From the testimonies of these witnesses, the Court of Appeals
allowed the will to probate and disregard the requirement of three
witnesses in case of contested holographic will, citing the decision in
Azaola vs. Singson,[31] ruling that the requirement is merely directory and
not mandatory.
In the case of Ajero vs. Court of Appeals,[32] we said that the object
of the solemnities surrounding the execution of wills is to close the door
against bad faith and fraud, to avoid substitution of wills and testaments
and to guaranty their truth and authenticity. Therefore, the laws on this
subject should be interpreted in such a way as to attain these primordial
ends. But, on the other hand, also one must not lose sight of the fact that
it is not the object of the law to restrain and curtail the exercise of the
right to make a will.
However, we cannot eliminate the possibility of a false document
being adjudged as the will of the testator, which is why if the holographic
will is contested, that law requires three witnesses to declare that the will
was in the handwriting of the deceased.
The will was found not in the personal belongings of the deceased
but with one of the respondents, who kept it even before the death of
the deceased. In the testimony of Ms. Binanay, she revealed that the will
was in her possession as early as 1985, or five years before the death of
the deceased.
There was no opportunity for an expert to compare the signature
and the handwriting of the deceased with other documents signed and
executed by her during her lifetime. The only chance at comparison was
27
during the cross-examination of Ms. Binanay when the lawyer of
petitioners asked Ms. Binanay to compare the documents which
contained the signature of the deceased with that of the holographic will
and she is not a handwriting expert. Even the former lawyer of the
deceased expressed doubts as to the authenticity of the signature in the
holographic will.
A visual examination of the holographic will convince us that the
strokes are different when compared with other documents written by
the testator. The signature of the testator in some of the disposition is not
readable. There were uneven strokes, retracing and erasures on the will.
Comparing the signature in the holographic will dated August 30,
1978,[33] and the signatures in several documents such as the application
letter for pasture permit dated December 30, 1980,[34] and a letter dated
June 16, 1978,[35] the strokes are different. In the letters, there are
continuous flows of the strokes, evidencing that there is no hesitation in
writing unlike that of the holographic will. We, therefore, cannot be
certain that the holographic will was in the handwriting by the deceased.
IN VIEW WHEREOF, the decision appealed from is SET ASIDE. The
records are ordered remanded to the court of origin with instructions to
allow petitioners to adduce evidence in support of their opposition to the
probate of the holographic will of the deceased Matilde Seo Vda. de
Ramonal.
No costs.
SO ORDERED.
G.R. No. L-55509 April 27, 1984
ETHEL GRIMM ROBERTS, petitioner,
vs.
JUDGE TOMAS R. LEONIDAS, Branch 38, Court of First Instance of Manila;
MAXINE TATE-GRIMM, EDWARD MILLER GRIMM II and LINDA
GRIMM, respondents.
N. J. Quisumbing and Associates for petitioners.
Angara, Abello, Concepcion, Regala and Cruz for respondents.
AQUINO, J.:ñé+.£ªwph!1
 28

The question in this case is whether a petition for allowance of wills and to
annul a partition, approved in an intestateproceeding by Branch 20 of
the Manila Court of First Instance, can be entertained by its Branch
38 (after a probate in the Utah district court).
Antecedents. — Edward M. Grimm an American resident of Manila, died
at 78 in the Makati Medical Center on November 27, 1977. He was
survived by his second wife, Maxine Tate Grimm and their two children,
named Edward Miller Grimm II (Pete) and Linda Grimm and by Juanita
Grimm Morris and Ethel Grimm Roberts (McFadden), his two children by a
first marriage which ended in divorce (Sub-Annexes A and B. pp. 36-47,
Rollo).
He executed on January 23, 1959 two wills in San Francisco, California.
One will disposed of his Philippine estate which he described as conjugal
property of himself and his second wife. The second win disposed of his
estate outside the Philippines.
Two weeks later, or on April 25, 1978, Maxine and her two children Linda
and Pete, as the first parties, and Ethel, Juanita Grimm Morris and their
mother Juanita Kegley Grimm as the second parties, with knowledge of
the intestate proceeding in Manila, entered into a compromise
agreement in Utah regarding the estate. It was signed by David E.
Salisbury and Donald B. Holbrook, as lawyers of the parties, by Pete and
Linda and the attorney-in-fact of Maxine and by the attorney-in-fact of
Ethel, Juanita Grimm Morris and Juanita Kegley Grimm.
In that agreement, it was stipulated that Maxine, Pete and Ethel would
be designated as personal representatives (administrators) of Grimm's
Philippine estate (par. 2). It was also stipulated that Maxine's one-half
conjugal share in the estate should be reserved for her and that would
not be less than $1,500,000 plus the homes in Utah and Santa Mesa,
Manila (par. 4). The agreement indicated the computation of the "net
distributable estate". It recognized that the estate was liable to pay the
fees of the Angara law firm (par. 5).

It was stipulated in paragraph 6 that the decedent's four children "shall

In both wills, the second wife and two children were favored. The two
share equally in the Net Distributable Estate" and that Ethel and Juanita
children of the first marriage were given their legitimes in the will disposing
Morris should each receive at least 12-1/2% of the total of the net
of the estate situated in this country. In the will dealing with his property
distributable estate and marital share. A supplemental memorandum
outside this country, the testator said: têñ.£îhqwâ£
also dated April 25, 1978 was executed by the parties (Sub-Annex F, pp.
49-61, Annex, F-1, pp. 75-76, Testate case).
I purposely have made no provision in this will for my
daughter, Juanita Grimm Morris, or my daughter, Elsa
Intestate proceeding No. 113024.-At this juncture, it should be stated that
Grimm McFadden (Ethel Grimm Roberts), because I
forty- three days after Grimm's death, or January 9, 1978, his daughter of
have provided for each of them in a separate will
the first marriage, Ethel, 49, through lawyers Deogracias T. Reyes and.
disposing of my Philippine property. (First clause, pp.
Gerardo B. Macaraeg, filed with Branch 20 of the Manila Court of First
43-47, Rollo).
Instance intestate proceeding No. 113024 for the settlement of his estate.
She was named special administratrix.
The two wills and a codicil were presented for probate by Maxine Tate
Grimm and E. LaVar Tate on March 7, 1978 in Probate No. 3720 of the
On March 11, the second wife, Maxine, through the Angara law office,
Third Judicial District Court of Tooele County, Utah. Juanita Grimm Morris
filed an opposition and motion to dismiss the intestate proceeding on the
of Cupertino, California and Mrs. Roberts of 15 C. Benitez Street,
ground of the pendency of Utah of a proceeding for the probate of
Horseshoe Village, Quezon City were notified of the probate proceeding
Grimm's will. She also moved that she be appointed special administratrix,
(Sub-Annex C, pp. 48-55, Rollo).
She submitted to the court a copy of Grimm's will disposing of his
Philippine estate. It is found in pages 58 to 64 of the record.
Maxine admitted that she received notice of the intestate petition filed in
Manila by Ethel in January, 1978 (p. 53, Rollo). In its order dated April 10,
The intestate court in its orders of May 23 and June 2 noted that Maxine,
1978, the Third Judicial District Court admitted to probate the two wills
through a new lawyer, William C. Limqueco (partner of Gerardo B.
and the codicil It was issued upon consideration of the stipulation dated
Macaraeg, p. 78, testate case withdrew that opposition and motion to
April 4, 1978 "by and between the attorneys for Maxine Tate Grimm, Linda
dismiss and, at the behest of Maxine, Ethel and Pete, appointed them
Grimm, Edward Miller Grimm II, E. LaVar Tate, Juanita Kegley Grimm (first
joint administrators. Apparently, this was done pursuant to the
wife), Juanita Grimm Morris and Ethel Grimm Roberts" (Annex C, pp. 48-
51, Rollo).
 29

aforementioned Utah compromise agreement. The court ignored the will
already found in the record.
The three administrators submitted an inventory. With the authority and
approval of the court, they sold for P75,000 on March 21, 1979 the so-
called Palawan Pearl Project, a business owned by the deceased. Linda
and Juanita allegedly conformed with the sale (pp. 120-129, Record). It
turned out that the buyer, Makiling Management Co., Inc., was
incorporated by Ethel and her husband, Rex Roberts, and by lawyer
Limqueco (Annex L, p. 90, testate case).
Also with the court's approval and the consent of Linda and Juanita, they
sold for P1,546,136 to Joseph Server and others 193,267 shares of RFM
Corporation (p. 135, Record).
Acting on the declaration of heirs and project of partition signed and
filed by lawyers Limqueco and Macaraeg (not signed by Maxine and her
two children), Judge Conrado M. Molina in his order of July 27, 1979
adjudicated to Maxine onehalf (4/8) of the decedent's Philippine estate
and one-eighth (1/8) each to his four children or 12-1/2% (pp. 140-142,
Record). No mention at all was made of the will in that order.
Grimm Morris, through Ethel's lawyers, filed a motion for accounting "so
that the Estate properties can be partitioned among the heirs and the
present intestate estate be closed." Del Callar, Maxine's lawyer was
notified of that motion.
Before that motion could be heard, or on June 10, 1980, the Angara law
firm filed again its appearance in collaboration with Del Callar as counsel
for Maxine and her two children, Linda and Pete. It should be recalled
that the firm had previously appeared in the case as Maxine's counsel on
March 11, 1978, when it filed a motion to dismiss the intestate proceeding
and furnished the court with a copy of Grimm's will. As already noted, the
firm was then superseded by lawyer Limqueco.
Petition to annul partition and testate proceeding No. 134559. — On
September 8, 1980, Rogelio A. Vinluan of the Angara law firm in behalf of
Maxine, Pete and Linda, filed in Branch 38 of the lower court a petition
praying for the probate of Grimm's two wills (already probated in Utah),
that the 1979 partition approved by the intestate court be set aside and
the letters of administration revoked, that Maxine be appointed executrix
and that Ethel and Juanita Morris be ordered to account for the
properties received by them and to return the same to Maxine (pp. 25-35,
Rollo).

Six days later, or on August 2, Maxine and her two children replaced
Grimm's second wife and two children alleged that they were defraud
Limqueco with Octavio del Callar as their lawyer who on August 9,
due to the machinations of the Roberts spouses, that the 1978 Utah
moved to defer approval of the project of partition. The court considered
compromise agreement was illegal, that the intestate proceeding is void
the motion moot considering that it had already approved the
because Grimm died testate and that the partition was contrary to the
declaration of heirs and project of partition (p. 149, Record).
decedent's wills.

Lawyer Limqueco in a letter to Maxine dated August 2, 1979 alleged that

Ethel filed a motion to dismiss the petition. Judge Leonidas denied it for
he was no longer connected with Makiling Management Co., Inc. when
lack of merit in his order of October 27, 1980. Ethel then filed a petition for
the Palawan Pearl Project was sold: that it was Maxine's son Pete who
certiorari and prohibition in this Court, praying that the testate
negotiated the sale with Rex Roberts and that he (Limqueco) was going
proceeding be dismissed, or. alternatively that the two proceedings be
to sue Maxine for the lies she imputed to him (Annex H, p. 78, testate
consolidated and heard in Branch 20 and that the matter of the
case).
annulment of the Utah compromise agreement be heard prior to the
petition for probate (pp. 22-23, Rollo).
Ethel submitted to the court a certification of the Assistant Commissioner
of Internal Revenue dated October 2, 1979. It was stated therein that
Ruling. — We hold that respondent judge did not commit any grave
Maxine paid P1,992,233.69 as estate tax and penalties and that he
abuse of discretion, amounting to lack of jurisdiction, in denying Ethel's
interposed no objection to the transfer of the estate to Grimm's heirs (p.
motion to dismiss.
153, Record). The court noted the certification as in conformity with its
order of July 27, 1979.
A testate proceeding is proper in this case because Grimm died with two
wills and "no will shall pass either real or personal property unless it is
After November, 1979 or for a period of more than five months, there was
proved and allowed" (Art. 838, Civil Code; sec. 1, Rule 75, Rules of Court).
no movement or activity in the intestate case. On April 18, 1980 Juanita

The probate of the will is mandatory (Guevara vs. Guevara, 74 Phil. 479
and 98 Phil. 249; Baluyot vs. Panio, L-42088, May 7, 1976, 71 SCRA 86). It is
anomalous that the estate of a person who died testate should be
settled in an intestate proceeding. Therefore, the intestate case should
be consolidated with the testate proceeding and the judge assigned to
the testate proceeding should continue hearing the two cases.
Ethel may file within twenty days from notice of the finality of this
judgment an opposition and answer to the petition unless she considers
her motion to dismiss and other pleadings sufficient for the purpose.
Juanita G. Morris, who appeared in the intestate case, should be served
with copies of orders, notices and other papers in the testate case.
WHEREFORE the petition is dismissed. The temporary restraining order is
dissolved. No costs.
SO ORDERED.1äwphï1.ñët
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
30
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.
31
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.
32
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):
 33

We pause to reflect. If the case were to be remanded The prohibitions mentioned in Article 739, concerning
for probate of the will, nothing will be gained. On the donations inter vivos shall apply to testamentary
contrary, this litigation will be protracted. And for provisions.
aught that appears in the record, in the record, in the
event of probate or if the court rejects the will,
In Article III of the disputed Will, executed on August 15, 1968, or almost six
probability exists that the case will come up once
years before the testator's death on July 16, 1974, Martin Jugo stated that
again before us on the same issue of the intrinsic
respondent Rufina Gomez was his legal wife from whom he had been
validity or nullity of the will. Result, waste of time, effort,
estranged "for so many years." He also declared that respondents
expense, plus added anxiety. These are the practical
Carmelita Jugo and Oscar Jugo were his legitimate children. In Article IV,
considerations that induce us to a belief that we might
he stated that he had been living as man and wife with the petitioner
as well meet head-on the issue of the validity of the
since 1952. Testator Jugo declared that the petitioner was entitled to his
provisions of the will in question. (Section 2, Rule 1,
love and affection. He stated that Nepomuceno represented Jugo as her
Rules of Court. Case, et al. v. Jugo, et al., 77 Phil. 517,
own husband but "in truth and in fact, as well as in the eyes of the law, I
522). After all, there exists a justiciable controversy
could not bind her to me in the holy bonds of matrimony because of my
crying for solution.
aforementioned previous marriage.

We see no useful purpose that would be served if we remand the nullified

There is no question from the records about the fact of a prior existing
provision to the proper court in a separate action for that purpose simply
marriage when Martin Jugo executed his Will. There is also no dispute that
because, in the probate of a will, the court does not ordinarily look into
the petitioner and Mr. Jugo lived together in an ostensible marital
the intrinsic validity of its provisions.
relationship for 22 years until his death.

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.
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

In the case referred to in No. 1, the action for
evidence on her alleged ignorance of the true civil
declaration of nullity may be brought by the spouse of
status of the testator, which led private respondents to
the donor or donee; and the guilt of the donor and
present contrary evidence.
donee may be proved by preponderance of
evidence in the same action.
In short, the parties themselves dueled on the intrinsic
validity of the legacy given in the will to petitioner by
Article 1028 of the Civil Code provides:
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
34
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
 35

improbable, for they are against the experience in On May 18, 1963, petitioner Remedios Nuguid filed in the Court of First
common life and the ordinary instincts and promptings Instance of Rizal a holographic will allegedly executed by Rosario Nuguid
of human nature that a woman would not bother at all on November 17, 1951, some 11 years before her demise. Petitioner
to ask the man she was going to marry whether or not prayed that said will be admitted to probate and that letters of
he was already married to another, knowing that her administration with the will annexed be issued to her.
groom had children. It would be a story that would
strain human credulity to the limit if petitioner did not
On June 25, 1963, Felix Nuguid and Paz Salonga Nuguid, concededly the
know that Martin Jugo was already a married man in
legitimate father and mother of the deceased Rosario Nuguid, entered
view of the irrefutable fact that it was precisely his
their opposition to the probate of her will. Ground therefor, inter alia, is
marriage to respondent Rufina Gomez that led
that by the institution of petitioner Remedios Nuguid as universal heir of
petitioner to break off with the deceased during their
the deceased, oppositors — who are compulsory heirs of the deceased
younger years.
in the direct ascending line — were illegally preterited and that in
consequence the institution is void.
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
On August 29, 1963, before a hearing was had on the petition for probate
concubinage. It is the donation which becomes void. The giver cannot
and objection thereto, oppositors moved to dismiss on the ground of
give even assuming that the recipient may receive. The very wordings of
absolute preterition.
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. On September 6, 1963, petitioner registered her opposition to the motion
to dismiss.1äwphï1.ñët
WHEREFORE, the petition is DISMISSED for lack of merit. The decision of the
Court of Appeals, now Intermediate Appellate Court, is AFFIRMED. No The court's order of November 8, 1963, held that "the will in question is a
costs. complete nullity and will perforce create intestacy of the estate of the
deceased Rosario Nuguid" and dismissed the petition without costs.
SO ORDERED.
A motion to reconsider having been thwarted below, petitioner came to
this Court on appeal.
G.R. No. L-23445 June 23, 1966

1. Right at the outset, a procedural aspect has engaged our attention.

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.:
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
Rosario Nuguid, a resident of Quezon City, died on December 30, 1962,
question of whether or not the will should be allowed probate. For them,
single, without descendants, legitimate or illegitimate. Surviving her were
the meat of the case is the intrinsic validity of the will. Normally, this comes
her legitimate parents, Felix Nuguid and Paz Salonga Nuguid, and six (6)
only after the court has declared that the will has been duly
brothers and sisters, namely: Alfredo, Federico, Remedios, Conrado,
authenticated.2 But petitioner and oppositors, in the court below and
Lourdes and Alberto, all surnamed Nuguid.

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. ...
36
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
37
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
38
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-40207 September 28, 1984
ROSA K. KALAW, petitioner,
vs.
HON. JUDGE BENJAMIN RELOVA, Presiding Judge of the CFI of Batangas,
Branch VI, Lipa City, and GREGORIO K. KALAW, respondents.
Leandro H. Fernandez for petitioner.
Antonio Quintos and Jose M. Yacat for respondents.
MELENCIO-HERRERA, J.:
On September 1, 1971, private respondent GREGORIO K. KALAW,
claiming to be the sole heir of his deceased sister, Natividad K. Kalaw,
filed a petition before the Court of First Instance of Batangas, Branch VI,
Lipa City, for the probate of her holographic Will executed on December
24, 1968.
The holographic Will reads in full as follows:
My Last will and Testament
In the name of God, Amen.
I Natividad K. Kalaw Filipino 63years of age, single, and a resident of Lipa
City, being of sound and disposing mind and memory, do hereby declare
thus to be my last will and testament.
1. It is my will that I'll be burried in the cemetery of the catholic church of
Lipa City. In accordance with the rights of said Church, and that my
executrix hereinafter named provide and erect at the expose of my state
a suitable monument to perpetuate my memory.
39
xxx xxx xxx
The holographic Will, as first written, named ROSA K. Kalaw, a sister of the
testatrix as her sole heir. Hence, on November 10, 1971, petitioner ROSA K.
Kalaw opposed probate alleging, in substance, that the holographic Will
contained alterations, corrections, and insertions without the proper
authentication by the full signature of the testatrix as required by Article
814 of the Civil Code reading:
Art. 814. In case of any insertion, cancellation, erasure
or alteration in a holographic will the testator must
authenticate the same by his full signature.
ROSA's position was that the holographic Will, as first written, should be
given effect and probated so that she could be the sole heir thereunder.
After trial, respondent Judge denied probate in an Order, dated
September 3, 197 3, reading in part:
The document Exhibit "C" was submitted to the
National Bureau of Investigation for examination. The
NBI reported that the handwriting, the signature, the
insertions and/or additions and the initial were made
by one and the same person. Consequently, Exhibit "C"
was the handwriting of the decedent, Natividad K.
Kalaw. The only question is whether the win, Exhibit 'C',
should be admitted to probate although the
alterations and/or insertions or additions above-
mentioned were not authenticated by the full
signature of the testatrix pursuant to Art. 814 of the Civil
Code. The petitioner contends that the oppositors are
estopped to assert the provision of Art. 814 on the
ground that they themselves agreed thru their counsel
to submit the Document to the NBI FOR
EXAMINATIONS. This is untenable. The parties did not
agree, nor was it impliedly understood, that the
oppositors would be in estoppel.
The Court finds, therefore, that the provision of Article
814 of the Civil Code is applicable to Exhibit "C".
Finding the insertions, alterations and/or additions in
Exhibit "C" not to be authenticated by the full signature
of the testatrix Natividad K. Kalaw, the Court will deny
the admission to probate of Exhibit "C".

WHEREFORE, the petition to probate Exhibit "C" as the
holographic will of Natividad K. Kalaw is hereby
denied.
SO ORDERED.
From that Order, GREGORIO moved for reconsideration arguing that
since the alterations and/or insertions were the testatrix, the denial to
probate of her holographic Will would be contrary to her right of
testamentary disposition. Reconsideration was denied in an Order, dated
November 2, 1973, on the ground that "Article 814 of the Civil Code being
, clear and explicit, (it) requires no necessity for interpretation."
From that Order, dated September 3, 1973, denying probate, and the
Order dated November 2, 1973 denying reconsideration, ROSA filed this
Petition for Review on certiorari on the sole legal question of whether or
not the original unaltered text after subsequent alterations and insertions
were voided by the Trial Court for lack of authentication by the full
signature of the testatrix, should be probated or not, with her as sole heir.
Ordinarily, when a number of erasures, corrections, and interlineations
made by the testator in a holographic Will litem not been noted under his
signature, ... the Will is not thereby invalidated as a whole, but at most
only as respects the particular words erased, corrected or
interlined.1 Manresa gave an Identical commentary when he said "la
omision de la salvedad no anula el testamento, segun la regla de
jurisprudencia establecida en la sentencia de 4 de Abril de 1895." 2
However, when as in this case, the holographic Will in dispute had only
one substantial provision, which was altered by substituting the original
heir with another, but which alteration did not carry the requisite of full
authentication by the full signature of the testator, the effect must be that
the entire Will is voided or revoked for the simple reason that nothing
remains in the Will after that which could remain valid. To state that the
Will as first written should be given efficacy is to disregard the seeming
change of mind of the testatrix. But that change of mind can neither be
given effect because she failed to authenticate it in the manner required
by law by affixing her full signature,
The ruling in Velasco, supra, must be held confined to such insertions,
cancellations, erasures or alterations in a holographic Will, which affect
only the efficacy of the altered words themselves but not the essence
and validity of the Will itself. As it is, with the erasures, cancellations and
alterations made by the testatrix herein, her real intention cannot be
determined with certitude. As Manresa had stated in his commentary on
40
Article 688 of the Spanish Civil Code, whence Article 814 of the new Civil
Code was derived:
... No infringe lo dispuesto en este articulo del Codigo
(el 688) la sentencia que no declara la nulidad de un
testamento olografo que contenga palabras
tachadas, enmendadas o entre renglones no salvadas
por el testador bajo su firnia segun previene el parrafo
tercero del mismo, porque, en realidad, tal omision
solo puede afectar a la validez o eficacia de tales
palabras, y nunca al testamento mismo, ya por estar
esa disposicion en parrafo aparte de aquel que
determine las condiciones necesarias para la validez
del testamento olografo, ya porque, de admitir lo
contrario, se Ilegaria al absurdo de que pequefias
enmiendas no salvadas, que en nada afectasen a la
parte esencial y respectiva del testamento, vinieran a
anular este, y ya porque el precepto contenido en
dicho parrafo ha de entenderse en perfecta armonia
y congruencia con el art. 26 de la ley del Notariado
que declara nulas las adiciones apostillas
entrerrenglonados, raspaduras y tachados en las
escrituras matrices, siempre que no se salven en la
forma prevenida, paro no el documento que las
contenga, y con mayor motivo cuando las palabras
enmendadas, tachadas, o entrerrenglonadas no
tengan importancia ni susciten duda alguna acerca
del pensamiento del testador, o constituyan meros
accidentes de ortografia o de purez escrituraria, sin
trascendencia alguna(l).
Mas para que sea aplicable la doctrina de excepcion
contenida en este ultimo fallo, es preciso que las
tachaduras, enmiendas o entrerrenglonados sin salvar
saan de pala bras que no afecter4 alteren ni uarien
de modo substancial la express voluntad del testador
manifiesta en el documento. Asi lo advierte la
sentencia de 29 de Noviembre de 1916, que declara
nulo un testamento olografo por no estar salvada por
el testador la enmienda del guarismo ultimo del año
en que fue extendido3(Emphasis ours).
WHEREFORE, this Petition is hereby dismissed and the Decision of
respondent Judge, dated September 3, 1973, is hereby affirmed in toto.
No costs.

SO ORDERED.
G.R. No. L-38338 January 28, 1985
IN THE MATTER OF THE INTESTATE ESTATE OF ANDRES G. DE JESUS AND
BIBIANA ROXAS DE JESUS, SIMEON R. ROXAS & PEDRO ROXAS DE
JESUS, petitioners,
vs.
ANDRES R. DE JESUS, JR., respondent.
Raul S. Sison Law Office for petitioners.
Rafael Dinglasan, Jr. for heir M. Roxas.
Ledesma, Guytingco Velasco and Associates for Ledesa and A. R. de
Jesus.
GUTIERREZ, JR., J.:
This is a petition for certiorari to set aside the order of respondent Hon.
Jose C. Colayco, Presiding Judge Court of First Instance of Manila, Branch
XXI disallowing the probate of the holographic Will of the deceased
Bibiana Roxas de Jesus.
The antecedent facts which led to the filing of this petition are
undisputed.
After the death of spouses Andres G. de Jesus and Bibiana Roxas de
Jesus, Special Proceeding No. 81503 entitled "In the Matter of the
Intestate Estate of Andres G. de Jesus and Bibiana Roxas de Jesus" was
filed by petitioner Simeon R. Roxas, the brother of the deceased Bibiana
Roxas de Jesus.
On March 26, 1973, petitioner Simeon R. Roxas was appointed
administrator. After Letters of Administration had been granted to the
petitioner, he delivered to the lower court a document purporting to be
the holographic Will of the deceased Bibiana Roxas de Jesus. On May 26,
1973, respondent Judge Jose Colayco set the hearing of the probate of
the holographic Win on July 21, 1973.
41
Petitioner Simeon R. Roxas testified that after his appointment as
administrator, he found a notebook belonging to the deceased Bibiana
R. de Jesus and that on pages 21, 22, 23 and 24 thereof, a letter-win
addressed to her children and entirely written and signed in the
handwriting of the deceased Bibiana R. de Jesus was found. The will is
dated "FEB./61 " and states: "This is my win which I want to be respected
although it is not written by a lawyer. ...
The testimony of Simeon R. Roxas was corroborated by the testimonies of
Pedro Roxas de Jesus and Manuel Roxas de Jesus who likewise testified
that the letter dated "FEB./61 " is the holographic Will of their deceased
mother, Bibiana R. de Jesus. Both recognized the handwriting of their
mother and positively Identified her signature. They further testified that
their deceased mother understood English, the language in which the
holographic Will is written, and that the date "FEB./61 " was the date when
said Will was executed by their mother.
Respondent Luz R. Henson, another compulsory heir filed an "opposition
to probate" assailing the purported holographic Will of Bibiana R. de Jesus
because a it was not executed in accordance with law, (b) it was
executed through force, intimidation and/or under duress, undue
influence and improper pressure, and (c) the alleged testatrix acted by
mistake and/or did not intend, nor could have intended the said Will to
be her last Will and testament at the time of its execution.
On August 24, 1973, respondent Judge Jose C. Colayco issued an order
allowing the probate of the holographic Will which he found to have
been duly executed in accordance with law.
Respondent Luz Roxas de Jesus filed a motion for reconsideration alleging
inter alia that the alleged holographic Will of the deceased Bibiana R. de
Jesus was not dated as required by Article 810 of the Civil Code. She
contends that the law requires that the Will should contain the day,
month and year of its execution and that this should be strictly complied
with.
On December 10, 1973, respondent Judge Colayco reconsidered his
earlier order and disallowed the probate of the holographic Will on the
ground that the word "dated" has generally been held to include the
month, day, and year. The dispositive portion of the order reads:
WHEREFORE, the document purporting to be the
holographic Will of Bibiana Roxas de Jesus, is hereby
disallowed for not having been executed as required
 42

by the law. The order of August 24, 1973 is hereby set testator more freedom in expressing his last wishes, but
aside. with sufficien safeguards and restrictions to prevent the
commission of fraud and the exercise of undue and
improper pressure and influence upon the testator.
The only issue is whether or not the date "FEB./61 " appearing on the
holographic Will of the deceased Bibiana Roxas de Jesus is a valid
compliance with the Article 810 of the Civil Code which reads: This objective is in accord with the modem tendency
with respect to the formalities in the execution of wills.
(Report of the Code Commission, p. 103)
ART. 810. A person may execute a holographic will
which must be entirely written, dated, and signed by
the hand of the testator himself. It is subject to no other In Justice Capistrano's concurring opinion in Heirs of Raymundo Castro v.
form, and may be made in or out of the Philippines, Bustos (27 SCRA 327) he emphasized that:
and need not be witnessed.
xxx xxx xxx
The petitioners contend that while Article 685 of the Spanish Civil Code
and Article 688 of the Old Civil Code require the testator to state in his
... The law has a tender regard for the will of the
holographic Win the "year, month, and day of its execution," the present
testator expressed in his last will and testament on the
Civil Code omitted the phrase Año mes y dia and simply requires that the
ground that any disposition made by the testator is
holographic Will should be dated. The petitioners submit that the liberal
better than that which the law can make. For this
construction of the holographic Will should prevail.
reason, intestate succession is nothing more than a
disposition based upon the presumed will of the
Respondent Luz Henson on the other hand submits that the purported decedent.
holographic Will is void for non-compliance with Article 810 of the New
Civil Code in that the date must contain the year, month, and day of its
Thus, the prevailing policy is to require satisfaction of the legal
execution. The respondent contends that Article 810 of the Civil Code
requirements in order to guard against fraud and bad faith but without
was patterned after Section 1277 of the California Code and Section
undue or unnecessary curtailment of testamentary privilege Icasiano v.
1588 of the Louisiana Code whose Supreme Courts had consistently ruled
Icasiano, 11 SCRA 422). If a Will has been executed in substantial
that the required date includes the year, month, and day, and that if any
compliance with the formalities of the law, and the possibility of bad faith
of these is wanting, the holographic Will is invalid. The respondent further
and fraud in the exercise thereof is obviated, said Win should be
contends that the petitioner cannot plead liberal construction of Article
admitted to probate (Rey v. Cartagena 56 Phil. 282). Thus,
810 of the Civil Code because statutes prescribing the formalities to be
observed in the execution of holographic Wills are strictly construed.
xxx xxx xxx
We agree with the petitioner.
... More than anything else, the facts and
circumstances of record are to be considered in the
This will not be the first time that this Court departs from a strict and literal
application of any given rule. If the surrounding
application of the statutory requirements regarding the due execution of
circumstances point to a regular execution of the wilt
Wills. We should not overlook the liberal trend of the Civil Code in the
and the instrument appears to have been executed
manner of execution of Wills, the purpose of which, in case of doubt is to
substantially in accordance with the requirements of
prevent intestacy —
the law, the inclination should, in the absence of any
suggestion of bad faith, forgery or fraud, lean towards
The underlying and fundamental objectives its admission to probate, although the document may
permeating the provisions of the law on wigs in this suffer from some imperfection of language, or other
Project consists in the liberalization of the manner of non-essential defect. ... (Leynez v. Leynez 68 Phil. 745).
their execution with the end in view of giving the
 43

If the testator, in executing his Will, attempts to comply with all the WHEREFORE, the instant petition is GRANTED. The order appealed from is
requisites, although compliance is not literal, it is sufficient if the objective REVERSED and SET ASIDE and the order allowing the probate of the
or purpose sought to be accomplished by such requisite is actually holographic Will of the deceased Bibiana Roxas de Jesus is reinstated.
attained by the form followed by the testator.
SO ORDERED.
The purpose of the solemnities surrounding the execution of Wills has
been expounded by this Court in Abangan v. Abanga 40 Phil. 476, where
G.R. No. 106720 September 15, 1994
we ruled that:

SPOUSES ROBERTO AND THELMA AJERO, petitioners,

The object of the solemnities surrounding the execution
vs.
of wills is to close the door against bad faith and fraud,
THE COURT OF APPEALS AND CLEMENTE SAND, respondents.
to avoid substitution of wills and testaments and to
guaranty their truth and authenticity. ...
Miguel D. Larida for petitioners.
In particular, a complete date is required to provide against such
contingencies as that of two competing Wills executed on the same day, Montilla Law Office for private respondent.
or of a testator becoming insane on the day on which a Will was
executed (Velasco v. Lopez, 1 Phil. 720). There is no such contingency in
this case.

PUNO, J.:
We have carefully reviewed the records of this case and found no
evidence of bad faith and fraud in its execution nor was there any
substitution of Wins and Testaments. There is no question that the This is an appeal by certiorari from the Decision of the Court of
holographic Will of the deceased Bibiana Roxas de Jesus was entirely Appeals 1 in CA-G.R. CV No. 22840, dated March 30, 1992, the dispositive
written, dated, and signed by the testatrix herself and in a language portion of which reads;
known to her. There is also no question as to its genuineness and due
execution. All the children of the testatrix agree on the genuineness of PREMISES CONSIDERED, the questioned decision of
the holographic Will of their mother and that she had the testamentary November 19, 1988 of the trial court is hereby
capacity at the time of the execution of said Will. The objection REVERSED and SET ASIDE, and the petition for probate
interposed by the oppositor-respondent Luz Henson is that the is hereby DISMISSED. No costs.
holographic Will is fatally defective because the date "FEB./61 "
appearing on the holographic Will is not sufficient compliance with Article
The earlier Decision was rendered by the RTC of Quezon City,
810 of the Civil Code. This objection is too technical to be entertained.
Branch 94, 2 in Sp. Proc. No. Q-37171, and the instrument
submitted for probate is the holographic will of the late Annie
As a general rule, the "date" in a holographic Will should include the day, Sand, who died on November 25, 1982.
month, and year of its execution. However, when as in the case at bar,
there is no appearance of fraud, bad faith, undue influence and pressure
In the will, decedent named as devisees, the following: petitioners
and the authenticity of the Will is established and the only issue is whether
Roberto and Thelma Ajero, private respondent Clemente Sand, Meriam
or not the date "FEB./61" appearing on the holographic Will is a valid
S. Arong, Leah Sand, Lilia Sand, Edgar Sand, Fe Sand, Lisa S. Sand, and Dr.
compliance with Article 810 of the Civil Code, probate of the
Jose Ajero, Sr., and their children.
holographic Will should be allowed under the principle of substantial
compliance.
On January 20, 1983, petitioners instituted Sp. Proc. No. Q-37171, for
allowance of decedent's holographic will. They alleged that at the time
of its execution, she was of sound and disposing mind, not acting under

duress, fraud or undue influence, and was in every respect capacitated
to dispose of her estate by will.
Private respondent opposed the petition on the grounds that: neither the
testament's body nor the signature therein was in decedent's
handwriting; it contained alterations and corrections which were not duly
signed by decedent; and, the will was procured by petitioners through
improper pressure and undue influence. The petition was likewise
opposed by Dr. Jose Ajero. He contested the disposition in the will of a
house and lot located in Cabadbaran, Agusan Del Norte. He claimed
that said property could not be conveyed by decedent in its entirety, as
she was not its sole owner.
Notwithstanding the oppositions, the trial court admitted the decedent's
holographic will to probate. It found, inter alia:
Considering then that the probate proceedings herein
must decide only the question of identity of the will, its
due execution and the testamentary capacity of the
testatrix, this probate court finds no reason at all for the
disallowance of the will for its failure to comply with the
formalities prescribed by law nor for lack of
testamentary capacity of the testatrix.
For one, no evidence was presented to show that the
will in question is different from the will actually
executed by the testatrix. The only objections raised by
the oppositors . . . are that the will was not written in
the handwriting of the testatrix which properly refers to
the question of its due execution, and not to the
question of identity of will. No other will was alleged to
have been executed by the testatrix other than the will
herein presented. Hence, in the light of the evidence
adduced, the identity of the will presented for probate
must be accepted, i.e., the will submitted in Court must
be deemed to be the will actually executed by the
testatrix.
xxx xxx xxx
While the fact that it was entirely written, dated and
signed in the handwriting of the testatrix has been
disputed, the petitioners, however, have satisfactorily
shown in Court that the holographic will in question
was indeed written entirely, dated and signed in the
44
handwriting of the testatrix. Three (3) witnesses who
have convincingly shown knowledge of the
handwriting of the testatrix have been presented and
have explicitly and categorically identified the
handwriting with which the holographic will in question
was written to be the genuine handwriting and
signature of the testatrix. Given then the aforesaid
evidence, the requirement of the law that the
holographic will be entirely written, dated and signed
in the handwriting of the testatrix has been complied
with.
xxx xxx xxx
As to the question of the testamentary capacity of the
testratix, (private respondent) Clemente Sand himself
has testified in Court that the testatrix was completely
in her sound mind when he visited her during her
birthday celebration in 1981, at or around which time
the holographic will in question was executed by the
testatrix. To be of sound mind, it is sufficient that the
testatrix, at the time of making the will, knew
the value of the estate to be disposed of, the
proper object of her bounty, and the characterof the
testamentary act . . . The will itself shows that the
testatrix even had detailed knowledge of the nature of
her estate. She even identified the lot number and
square meters of the lots she had conveyed by will. The
objects of her bounty were likewise identified explicitly.
And considering that she had even written a nursing
book which contained the law and jurisprudence on
will and succession, there is more than sufficient
showing that she knows the character of the
testamentary act.
In this wise, the question of identity of the will, its due
execution and the testamentary capacity of the
testatrix has to be resolved in favor of the allowance of
probate of the will submitted herein.
Likewise, no evidence was presented to show sufficient
reason for the disallowance of herein holographic will.
While it was alleged that the said will was procured by
undue and improper pressure and influence on the
part of the beneficiary or of some other person, the
evidence adduced have not shown any instance
 45

where improper pressure or influence was exerted on It alluded to certain dispositions in the will which were either unsigned
the testatrix. (Private respondent) Clemente Sand has and undated, or signed but not dated. It also found that the erasures,
testified that the testatrix was still alert at the time of alterations and cancellations made thereon had not been
the execution of the will, i.e., at or around the time of authenticated by decedent.
her birth anniversary celebration in 1981. It was also
established that she is a very intelligent person and has
Thus, this appeal which is impressed with merit.
a mind of her own. Her independence of character
and to some extent, her sense of superiority, which has
been testified to in Court, all show the unlikelihood of Section 9, Rule 76 of the Rules of Court provides that will shall be
her being unduly influenced or improperly pressured to disallowed in any of the following cases:
make the aforesaid will. It must be noted that the
undue influence or improper pressure in question (a) If not executed and attested as required by law;
herein only refer to the making of a will and not as to
the specific testamentary provisions therein which is
the proper subject of another proceeding. Hence, (b) If the testator was insane, or otherwise mentally
under the circumstances, this Court cannot find incapable to make a will, at the time of its execution;
convincing reason for the disallowance of the will
herein. (c) If it was executed under duress, or the influence of
fear, or threats;
Considering then that it is a well-established doctrine in
the law on succession that in case of doubt, testate (d) If it was procured by undue and improper pressure
succession should be preferred over intestate and influence, on the part of the beneficiary, or of
succession, and the fact that no convincing grounds some other person for his benefit;
were presented and proven for the disallowance of
the holographic will of the late Annie Sand, the
(e) If the signature of the testator was procured by
aforesaid will submitted herein must be admitted to
fraud or trick, and he did not intend that the instrument
probate. 3 (Citations omitted.)
should be his will at the time of fixing his signature
thereto.
On appeal, said Decision was reversed, and the petition for probate of
decedent's will was dismissed. The Court of Appeals found that, "the
In the same vein, Article 839 of the New Civil Code reads:
holographic will fails to meet the requirements for its validity." 4 It held that
the decedent did not comply with Articles 813 and 814 of the New Civil
Code, which read, as follows: Art. 839: The will shall be disallowed in any of the
following cases;
Art. 813: When a number of dispositions appearing in a
holographic will are signed without being dated, and (1) If the formalities required by law
the last disposition has a signature and date, such have not been complied with;
date validates the dispositions preceding it, whatever
be the time of prior dispositions.
(2) If the testator was insane, or
otherwise mentally incapable of
Art. 814: In case of insertion, cancellation, erasure or making a will, at the time of its
alteration in a holographic will, the testator must execution;
authenticate the same by his full signature.

(3) If it was executed through force
or under duress, or the influence of
fear, or threats;
(4) If it was procured by undue and
improper pressure and influence, on
the part of the beneficiary or of
some other person;
(5) If the signature of the testator
was procured by fraud;
(6) If the testator acted by mistake
or did not intend that the instrument
he signed should be his will at the
time of affixing his signature thereto.
These lists are exclusive; no other grounds can serve to disallow a
will. 5 Thus, in a petition to admit a holographic will to probate, the only
issues to be resolved are: (1) whether the instrument submitted is, indeed,
the decedent's last will and testament; (2) whether said will was executed
in accordance with the formalities prescribed by law; (3) whether the
decedent had the necessary testamentary capacity at the time the will
was executed; and, (4) whether the execution of the will and its signing
were the voluntary acts of the decedent. 6
In the case at bench, respondent court held that the holographic will of
Anne Sand was not executed in accordance with the formalities
prescribed by law. It held that Articles 813 and 814 of the New Civil
Code, ante, were not complied with, hence, it disallowed the probate of
said will. This is erroneous.
We reiterate what we held in Abangan vs. Abangan, 40 Phil. 476, 479
(1919), that:
The object of the solemnities surrounding the execution
of wills is to close the door against bad faith and fraud,
to avoid substitution of wills and testaments and to
guaranty their truth and authenticity. Therefore, the
laws on this subject should be interpreted in such a
way as to attain these primordial ends. But, on the
other hand, also one must not lose sight of the fact
that it is not the object of the law to restrain and curtail
the exercise of the right to make a will. So when an
46
interpretation already given assures such ends, any
other interpretation whatsoever, that adds nothing but
demands more requisites entirely unnecessary, useless
and frustrative of the testator's last will, must be
disregarded.
For purposes of probating non-holographic wills, these formal solemnities
include the subscription, attestation, and acknowledgment requirements
under Articles 805 and 806 of the New Civil Code.
In the case of holographic wills, on the other hand, what assures
authenticity is the requirement that they be totally autographic or
handwritten by the testator himself, 7 as provided under Article 810 of the
New Civil Code, thus:
A person may execute a holographic will which must
be entirely written, dated, and signed by the hand of
the testator himself. It is subject to no other form, and
may be made in or out of the Philippines, and need
not be witnessed. (Emphasis supplied.)
Failure to strictly observe other formalities will not result in the
disallowance of a holographic will that is unquestionably
handwritten by the testator.
A reading of Article 813 of the New Civil Code shows that its requirement
affects the validity of the dispositions contained in the holographic will,
but not its probate. If the testator fails to sign and date some of the
dispositions, the result is that these dispositions cannot be effectuated.
Such failure, however, does not render the whole testament void.
Likewise, a holographic will can still be admitted to probate,
notwithstanding non-compliance with the provisions of Article 814. In the
case of Kalaw vs. Relova 132 SCRA 237 242 (1984), this Court held:
Ordinarily, when a number of erasures, corrections,
and interlineations made by the testator in a
holographic Will have not been noted under his
signature, . . . the Will is not thereby invalidated as a
whole, but at most only as respects the particular
words erased, corrected or interlined. Manresa gave
an identical commentary when he said "la omission de
la salvedad no anula el testamento, segun la regla de

jurisprudencia establecida en la sentencia de 4 de
Abril de 1985." 8 (Citations omitted.)
Thus, unless the unauthenticated alterations, cancellations or insertions
were made on the date of the holographic will or on testator's
signature, 9 their presence does not invalidate the will itself. 10 The lack of
authentication will only result in disallowance of such changes.
It is also proper to note that the requirements of authentication of
changes and signing and dating of dispositions appear in provisions
(Articles 813 and 814) separate from that which provides for the
necessary conditions for the validity of the holographic will (Article 810).
The distinction can be traced to Articles 678 and 688 of the Spanish Civil
Code, from which the present provisions covering holographic wills are
taken. They read as follows:
Art. 678: A will is called holographic when the testator
writes it himself in the form and with the requisites
required in Article 688.
Art. 688: Holographic wills may be executed only by
persons of full age.
In order that the will be valid it must be drawn on
stamped paper corresponding to the year of its
execution, written in its entirety by the testator and
signed by him, and must contain a statement of the
year, month and day of its execution.
If it should contain any erased, corrected, or interlined
words, the testator must identify them over his
signature.
Foreigners may execute holographic wills in their own
language.
This separation and distinction adds support to the interpretation that only
the requirements of Article 810 of the New Civil Code — and not those
found in Articles 813 and 814 of the same Code — are essential to the
probate of a holographic will.
The Court of Appeals further held that decedent Annie Sand could not
validly dispose of the house and lot located in Cabadbaran, Agusan del
Norte, in its entirety. This is correct and must be affirmed.
47
As a general rule, courts in probate proceedings are limited to pass only
upon the extrinsic validity of the will sought to be probated. However, in
exceptional instances, courts are not powerless to do what the situation
constrains them to do, and pass upon certain provisions of the will. 11 In
the case at bench, decedent herself indubitably stated in her
holographic will that the Cabadbaran property is in the name of her late
father, John H. Sand (which led oppositor Dr. Jose Ajero to question her
conveyance of the same in its entirety). Thus, as correctly held by
respondent court, she cannot validly dispose of the whole property,
which she shares with her father's other heirs.
IN VIEW WHEREOF, the instant petition is GRANTED. The Decision of the
Court of Appeals in CA-G.R. CV No. 22840, dated March 30, 1992, is
REVERSED and SET ASIDE, except with respect to the invalidity of the
disposition of the entire house and lot in Cabadbaran, Agusan del Norte.
The Decision of the Regional Trial Court of Quezon City, Branch 94 in Sp.
Proc. No. Q-37171, dated November 19, 1988, admitting to probate the
holographic will of decedent Annie Sand, is hereby REINSTATED, with the
above qualification as regards the Cabadbaran property. No costs.
SO ORDERED.
[G.R. No. 108581. December 8, 1999]
LOURDES L. DOROTHEO, petitioner, vs. COURT OF APPEALS, NILDA D.
QUINTANA, for Herself and as Attorney-in-Fact of VICENTE
DOROTHEO and JOSE DOROTHEO, respondents.
DECISION
YNARES-SANTIAGO, J.:
May a last will and testament admitted to probate but declared
intrinsically void in an order that has become final and executory still be
given effect? This is the issue that arose from the following antecedents:
Private respondents were the legitimate children of Alejandro
Dorotheo and Aniceta Reyes. The latter died in 1969 without her estate
being settled. Alejandro died thereafter. Sometime in 1977, after
Alejandros death, petitioner, who claims to have taken care of Alejandro
before he died, filed a special proceeding for the probate of the latters

last will and testament. In 1981, the court issued an order admitting
Alejandros will to probate. Private respondents did not appeal from said
order. In 1983, they filed a Motion To Declare The Will Intrinsically Void. The
trial court granted the motion and issued an order, the dispositive portion
of which reads:
WHEREFORE, in view of the foregoing, Order is hereby issued declaring
Lourdes Legaspi not the wife of the late Alejandro Dorotheo, the
provisions of the last will and testament of Alejandro Dorotheo as
intrinsically void, and declaring the oppositors Vicente Dorotheo, Jose
Dorotheo and Nilda Dorotheo Quintana as the only heirs of the late
spouses Alejandro Dorotheo and Aniceta Reyes, whose respective
estates shall be liquidated and distributed according to the laws on
intestacy upon payment of estate and other taxes due to the
government.[1]
Petitioner moved for reconsideration arguing that she is entitled to
some compensation since she took care of Alejandro prior to his death
although she admitted that they were not married to each other. Upon
denial of her motion for reconsideration, petitioner appealed to the Court
of Appeals, but the same was dismissed for failure to file appellants brief
within the extended period granted.[2] This dismissal became final and
executory on February 3, 1989 and a corresponding entry of judgment
was forthwith issued by the Court of Appeals on May 16, 1989. A writ of
execution was issued by the lower court to implement the final and
executory Order. Consequently, private respondents filed several motions
including a motion to compel petitioner to surrender to them the Transfer
Certificates of Titles (TCT) covering the properties of the late
Alejandro. When petitioner refused to surrender the TCTs, private
respondents filed a motion for cancellation of said titles and for issuance
of new titles in their names. Petitioner opposed the motion.
An Order was issued on November 29, 1990 by Judge Zain B. Angas
setting aside the final and executory Order dated January 30, 1986, as
well as the Order directing the issuance of the writ of execution, on the
ground that the order was merely interlocutory, hence not final in
character. The court added that the dispositive portion of the said Order
even directs the distribution of the estate of the deceased
spouses. Private respondents filed a motion for reconsideration which was
denied in an Order dated February 1, 1991. Thus, private respondents
filed a petition before the Court of Appeals, which nullified the two
assailed Orders dated November 29, 1990 and February 1, 1991.
Aggrieved, petitioner instituted a petition for review arguing that the
case filed by private respondents before the Court of Appeals was a
petition under Rule 65 on the ground of grave abuse of discretion or lack
of jurisdiction. Petitioner contends that in issuing the two assailed orders,
48
Judge Angas cannot be said to have no jurisdiction because he was
particularly designated to hear the case. Petitioner likewise assails the
Order of the Court of Appeals upholding the validity of the January 30,
1986 Order which declared the intrinsic invalidity of Alejandros will that
was earlier admitted to probate.
Petitioner also filed a motion to reinstate her as executrix of the
estate of the late Alejandro and to maintain the status quo or lease of the
premises thereon to third parties.[3] Private respondents opposed the
motion on the ground that petitioner has no interest in the estate since
she is not the lawful wife of the late Alejandro.
The petition is without merit. A final and executory decision or order
can no longer be disturbed or reopened no matter how erroneous it may
be. In setting aside the January 30, 1986 Order that has attained finality,
the trial court in effect nullified the entry of judgment made by the Court
of Appeals. It is well settled that a lower court cannot reverse or set aside
decisions or orders of a superior court, for to do so would be to negate
the hierarchy of courts and nullify the essence of review. It has been ruled
that a final judgment on probated will, albeit erroneous, is binding on the
whole world.[4]
It has been consistently held that if no appeal is taken in due time
from a judgment or order of the trial court, the same attains finality by
mere lapse of time. Thus, the order allowing the will became final and the
question determined by the court in such order can no longer be raised
anew, either in the same proceedings or in a different motion. The
matters of due execution of the will and the capacity of the testator
acquired the character of res judicata and cannot again be brought into
question, all juridical questions in connection therewith being for once
and forever closed.[5] Such final order makes the will conclusive against
the whole world as to its extrinsic validity and due execution.[6]
It should be noted that probate proceedings deals generally with
the extrinsic validity of the will sought to be probated,[7] particularly on
three aspects:
whether the will submitted is indeed, the decedents last will and
testament;
compliance with the prescribed formalities for the execution of wills;
the testamentary capacity of the testator;[8]
and the due execution of the last will and testament.[9]

Under the Civil Code, due execution includes a determination of
whether the testator was of sound and disposing mind at the time of its
execution, that he had freely executed the will and was not acting under
duress, fraud, menace or undue influence and that the will is genuine
and not a forgery,[10] that he was of the proper testamentary age and
that he is a person not expressly prohibited by law from making a will.[11]
The intrinsic validity is another matter and questions regarding the
same may still be raised even after the will has been
authenticated.[12] Thus, it does not necessarily follow that an extrinsically
valid last will and testament is always intrinsically valid. Even if the will was
validly executed, if the testator provides for dispositions that deprives or
impairs the lawful heirs of their legitime or rightful inheritance according
to the laws on succession,[13] the unlawful provisions/dispositions thereof
cannot be given effect. This is specially so when the courts had already
determined in a final and executory decision that the will is intrinsically
void. Such determination having attained that character of finality is
binding on this Court which will no longer be disturbed. Not that this Court
finds the will to be intrinsically valid, but that a final and executory
decision of which the party had the opportunity to challenge before the
higher tribunals must stand and should no longer be reevaluated. Failure
to avail of the remedies provided by law constitutes waiver. And if the
party does not avail of other remedies despite its belief that it was
aggrieved by a decision or court action, then it is deemed to have fully
agreed and is satisfied with the decision or order. As early as 1918, it has
been declared that public policy and sound practice demand that, at
the risk of occasional errors, judgments of courts must at some point of
time fixed by law[14] become final otherwise there will be no end to
litigation. Interes rei publicae ut finis sit litium - the very object of which the
courts were constituted was to put an end to controversies.[15] To fulfill this
purpose and to do so speedily, certain time limits, more or less arbitrary,
have to be set up to spur on the slothful.[16] The only instance where a
party interested in a probate proceeding may have a final liquidation set
aside is when he is left out by reason of circumstances beyond his control
or through mistake or inadvertence not imputable to
negligence,[17] which circumstances do not concur herein.
Petitioner was privy to the suit calling for the declaration of the
intrinsic invalidity of the will, as she precisely appealed from an
unfavorable order therefrom. Although the final and executory Order of
January 30, 1986 wherein private respondents were declared as the only
heirs do not bind those who are not parties thereto such as the alleged
illegitimate son of the testator, the same constitutes res judicata with
respect to those who were parties to the probate proceedings. Petitioner
cannot again raise those matters anew for relitigation otherwise that
would amount to forum-shopping. It should be remembered that forum
shopping also occurs when the same issue had already been resolved
adversely by some other court.[18] It is clear from the executory order that
49
the estates of Alejandro and his spouse should be distributed according
to the laws of intestate succession.
Petitioner posits that the January 30, 1986 Order is merely
interlocutory, hence it can still be set aside by the trial court. In support
thereof, petitioner argues that an order merely declaring who are heirs
and the shares to which set of heirs is entitled cannot be the basis of
execution to require delivery of shares from one person to another
particularly when no project of partition has been filed.[19] The trial court
declared in the January 30, 1986 Order that petitioner is not the legal wife
of Alejandro, whose only heirs are his three legitimate children (petitioners
herein), and at the same time it nullified the will. But it should be noted
that in the same Order, the trial court also said that the estate of the late
spouses be distributed according to the laws of intestacy.Accordingly, it
has no option but to implement that order of intestate distribution and
not to reopen and again re-examine the intrinsic provisions of the same
will.
It can be clearly inferred from Article 960 of the Civil Code, on the
law of successional rights that testacy is preferred to intestacy.[20] But
before there could be testate distribution, the will must pass the
scrutinizing test and safeguards provided by law considering that the
deceased testator is no longer available to prove the voluntariness of his
actions, aside from the fact that the transfer of the estate is usually
onerous in nature and that no one is presumed to give - Nemo
praesumitur donare.[21] No intestate distribution of the estate can be
done until and unless the will had failed to pass both its extrinsic and
intrinsic validity. If the will is extrinsically void, the rules of intestacy apply
regardless of the intrinsic validity thereof. If it is extrinsically valid, the next
test is to determine its intrinsic validity that is whether the provisions of the
will are valid according to the laws of succession. In this case, the court
had ruled that the will of Alejandro was extrinsically valid but the intrinsic
provisions thereof were void. Thus, the rules of intestacy apply as correctly
held by the trial court.
Furthermore, Alejandros disposition in his will of the alleged share in
the conjugal properties of his late spouse, whom he described as his only
beloved wife, is not a valid reason to reverse a final and executory
order. Testamentary dispositions of properties not belonging exclusively to
the testator or properties which are part of the conjugal regime cannot
be given effect.Matters with respect to who owns the properties that
were disposed of by Alejandro in the void will may still be properly
ventilated and determined in the intestate proceedings for the
settlement of his and that of his late spouses estate.
Petitioners motion for appointment as administratrix is rendered
moot considering that she was not married to the late Alejandro and,
therefore, is not an heir.

WHEREFORE, the petition is DENIED and the decision appealed from
is AFFIRMED.
SO ORDERED.
[G.R. No. 129505. January 31, 2000]
OCTAVIO S. MALOLES II, petitioner, vs. PACITA DE LOS REYES
PHILLIPS, respondent.
[G.R. No. 133359. January 31, 2000]
OCTAVIO S. MALOLES II, petitioner, vs. COURT OF APPEALS, HON.
FERNANDO V. GOROSPE, JR., in his Official Capacity as Presiding Judge of
RTC-Makati, Branch 61, and PACITA PHILLIPS as the alleged executrix of
the alleged will of the late Dr. Arturo de Santos, respondents. Scmis
DECISION
MENDOZA, J.:
These are petitions for review on certiorari of the decisions of the
Thirteenth and the Special Eighth Divisions of the Court of Appeals which
ruled that petitioner has no right to intervene in the settlement of the
estate of Dr. Arturo de Santos. The cases were consolidated considering
that they involve the same parties and some of the issues raised are the
same.
The facts which gave rise to these two petitions are as follows:
On July 20, 1995, Dr. Arturo de Santos, Filipino and a resident of Makati
City, filed a petition for probate of his will[1] in the Regional Trial Court,
Branch 61, Makati, docketed as Sp. Proc. No. M-4223. In his petition, Dr.
De Santos alleged that he had no compulsory heirs; that he had named
in his will as sole legatee and devisee the Arturo de Santos Foundation,
Inc.; that he disposed by his will his properties with an approximate value
of not less than P2,000,000.00; and that copies of said will were in the
custody of the named executrix, private respondent Pacita de los Reyes
Phillips. A copy of the will[2] was annexed to the petition for probate.
On February 16, 1996, Judge Fernando V. Gorospe, Jr. of RTC-Makati,
Branch 61 issued an order granting the petition and allowing the will. The
order reads:
50
On 03 August 1995, the Court issued an Order setting
the hearing of the petition on 12 September 1995, at
8:30 oclock in the morning, copies of which were
served to Arturo de Santos Foundation, Inc. and Ms.
Pacita de los Reyes Phillips (Officers Return, dated 04
September 1995 attached to the records). When the
case was called for hearing on the date set, no
oppositor appeared nor any written opposition was
ever filed and on motion of petitioner, he was allowed
to adduce his evidence in support of the petition.
Petitioner personally appeared before this Court and
was placed on the witness stand and was directly
examined by the Court through "free wheeling"
questions and answers to give this Court a basis to
determine the state of mind of the petitioner when he
executed the subject will. After the examination, the
Court is convinced that petitioner is of sound and
disposing mind and not acting on duress, menace and
undue influence or fraud, and that petitioner signed his
Last Will and Testament on his own free and voluntary
will and that he was neither forced nor influenced by
any other person in signing it. Mis sc
Furthermore, it appears from the petition and the
evidence adduced that petitioner in his lifetime,
executed his Last Will and Testament (Exhs. "A", "A-1",
"A-2", "A-4", "A-5") at his residence situated at 9
Bauhinia corner Intsia Streets, Forbes Park, Makati City;
said Last Will and Testament was signed in the
presence of his three (3) witnesses, namely, to wit: Dr.
Elpidio Valencia (Exhs. "A-6", "A-7", "A-8", "A-16", "A-16-
A"), Atty. Edward J. Berenguer (Exhs. "A-3", "A-3-A", "A-
9", "A-10", & "A-11"), and Atty. Victoria C. delos Reyes
(Exhs. "A-12", "A-13", "A-14", "A-17", & "A-18"), who in turn,
in the presence of the testator and in the presence of
each and all of the witnesses signed the said Last Will
and Testament and duly notarized before Notary
Public Anna Melissa L. Rosario (Exh. "A-15"); on the
actual execution of the Last Will and Testament,
pictures were taken (Exhs. "B" to "B-3").
Petitioner has no compulsory heirs and Arturo de
Santos Foundation, Inc., with address at No. 9 Bauhinia
corner Intsia Streets, Forbes Park, Makati City has been
named as sole legatee and devisee of petitioners
 51

properties, real and personal, approximately valued at Petitioner filed his memorandum of authorities on May 13, 1996. On the
not less than P2 million, Ms. Pacita de los Reyes Phillips other hand, private respondent, who earlier withdrew her motion for the
was designated as executor and to serve as such issuance of letters testamentary in Branch 61, refiled a petition for the
without a bond. same purpose with the Regional Trial Court, Makati, which was docketed
as Sp. Proc. No. M-4343 and assigned to Branch 65.
From the foregoing facts, the Court finds that the
petitioner has substantially established the material Upon private respondents motion, Judge Salvador Abad Santos of
allegations contained in his petition. The Last Will and Branch 65 issued an order, dated June 28, 1996, appointing her as special
Testament having been executed and attested as administrator of Dr. De Santoss estate.
required by law; that testator at the time of the
execution of the will was of sane mind and/or not
On July 29, 1996, petitioner sought to intervene in Sp. Proc. No. M-4343
mentally incapable to make a Will; nor was it executed
and to set aside the appointment of private respondent as special
under duress or under the influence of fear or threats;
administrator. He reiterated that he was the sole and full blooded
that it was in writing and executed in the language
nephew and nearest of kin of the testator; that he came to know of the
known and understood by the testator duly subscribed
existence of Sp. Proc. No. M-4343 only by accident; that the probate
thereof and attested and subscribed by three (3)
proceedings in Sp. Proc. No. M-4223 before Branch 61 of the same court
credible witnesses in the presence of the testator and
was still pending; that private respondent misdeclared the true worth of
of another; that the testator and all the attesting
the testators estate; that private respondent was not fit to be the special
witnesses signed the Last Will and Testament freely and
administrator of the estate; and that petitioner should be given letters of
voluntarily and that the testator has intended that the
administration for the estate of Dr. De Santos.
instrument should be his Will at the time of affixing his
signature thereto.
On August 28, 1996, Judge Abad Santos ordered the transfer of Sp. Proc.
No. M-4343 to Branch 61, on the ground that "[it] is related to the case
WHEREFORE, as prayed for by the petitioner (testator
before Judge Gorospe of RTC Branch 61 . . ."
himself) the petition for the allowance of the Last Will
and Testament of Arturo de Santos is hereby
APPROVED and ALLOWED. It appears, however, that in Sp. Proc. No. M-4223, Judge Gorospe had
denied on August 26, 1996 petitioners motion for intervention. Petitioner
brought this matter to the Court of Appeals which, in a
Shortly after the probate of his will, Dr. De Santos died on February 26,
decision[4] promulgated on February 13, 1998, upheld the denial of
1996.
petitioners motion for intervention.

On April 3, 1996, petitioner Octavio S. Maloles II filed a motion for

Meanwhile, Judge Gorospe issued an order, dated September 4, 1996,
intervention claiming that, as the only child of Alicia de Santos (testators
returning the records of Sp. Proc. No. M-4343 to Branch 65 on the ground
sister) and Octavio L. Maloles, Sr., he was the sole full-blooded nephew
that there was a pending case involving the Estate of Decedent Arturo
and nearest of kin of Dr. De Santos. He likewise alleged that he was a
de Santos pending before said court. The order reads: Spped
creditor of the testator. Petitioner thus prayed for the reconsideration of
the order allowing the will and the issuance of letters of administration in
his name. Mis spped Acting on the ORDER dated 28 August 1996 of Branch
65, this Court, transferring this case to this Branch 61 on
the ground that this case is related with a case before
On the other hand, private respondent Pacita de los Reyes Phillips, the
this Court, let this case be returned to Branch 65 with
designated executrix of the will, filed a motion for the issuance of letters
the information that there is no related case involving
testamentary with Branch 61. Later, however, private respondent moved
the ESTATE OF DECEDENT ARTURO DE SANTOS pending
to withdraw her motion. This was granted, while petitioner was required to
before this Branch.
file a memorandum of authorities in support of his claim that said court
(Branch 61) still had jurisdiction to allow his intervention.[3]

There is, however, a case filed by ARTURO DE SANTOS,
as petitioner under Rule 76 of the Rules of Court for the
Allowance of his will during his lifetime docketed as SP.
PROC. NO. M-4223 which was already decided on 16
February 1996 and has become final.
It is noted on records of Case No. M-4223 that after it
became final, herein Petitioner Pacita de los Reyes
Phillips filed a MOTION FOR THE ISSUANCE OF LETTERS
TESTAMENTARY, which was subsequently withdrawn
after this Court, during the hearing, already ruled that
the motion could not be admitted as the subject
matter involves a separate case under Rule 78 of the
Rules of Court, and movant withdrew her motion and
filed this case (No. 4343).
Octavio de Santos Maloles [II] filed a MOTION FOR
INTERVENTION before Case No. M-4223 and this motion
was already DENIED in the order (Branch 61) of 26
August 1996 likewise for the same grounds that the
matter is for a separate case to be filed under Rule 78
of the Rules of Court and cannot be included in this
case filed under Rule 76 of the Rules of Court.
It is further noted that it is a matter of policy that
consolidation of cases must be approved by the
Presiding Judges of the affected Branches.
Initially, in his decision dated September 23, 1996,[5] Judge Abad Santos
appeared firm in his position that " . . . it would be improper for (Branch
65) to hear and resolve the petition (Sp. Proc. No. M-4343)," considering
that the probate proceedings were commenced with Branch 61. He thus
ordered the transfer of the records back to the latter branch. However,
he later recalled his decision and took cognizance of the case "to
expedite the proceedings." Thus, in his Order, dated October 21, 1996, he
stated:
Considering the refusal of the Hon. Fernando V.
Gorospe, Jr. of Branch 61 to continue hearing this case
notwithstanding the fact that said branch began the
probate proceedings of the estate of the deceased
and must therefore continue to exercise its jurisdiction
to the exclusion of all others, until the entire estate of
the testator had been partitioned and distributed as
per Order dated 23 September 1996, this branch
52
(Regional Trial Court Branch 65) shall take cognizance
of the petition if only to expedite the proceedings, and
under the concept that the Regional Trial Court of
Makati City is but one court. Jo spped
Furnish a copy of this order to the Office of the Chief
justice and the Office of the Court Administrator, of the
Supreme Court; the Hon. Fernando V. Gorospe, Jr.;
Pacita De Los Reyes Phillips, Petitioner; and Octavio de
Santos Maloles, Intervenor.
On November 4, 1996, Judge Abad Santos granted petitioners motion for
intervention. Private respondent moved for a reconsideration but her
motion was denied by the trial court. She then filed a petition
for certiorari in the Court of Appeals which, on February 26, 1997,
rendered a decision[6] setting aside the trial courts order on the ground
that petitioner had not shown any right or interest to intervene in Sp. Proc.
No. M-4343.
Hence, these petitions which raise the following issues:
1. Whether or not the Honorable Regional Trial Court -
Makati, Branch 61 has lost jurisdiction to proceed with
the probate proceedings upon its issuance of an order
allowing the will of Dr. Arturo de Santos
2. Whether or not the Honorable (Regional Trial Court -
Makati, Branch 65) acquired jurisdiction over the
petition for issuance of letters testamentary filed by
(private) respondent.
3. Whether or not the petitioner, being a creditor of the
late Dr. Arturo de Santos, has a right to intervene and
oppose the petition for issuance of letters testamentary
filed by the respondent.
4. Whether or not (private) respondent is guilty of forum
shopping in filing her petition for issuance of letters
testamentary with the Regional Trial Court - Makati,
Branch 65 knowing fully well that the probate
proceedings involving the same testate estate of the
decedent is still pending with the Regional Trial Court -
Makati, Branch 61. Spped jo

First. Petitioner contends that the probate proceedings in Branch 61 of
RTC-Makati did not terminate upon the issuance of the order allowing the
will of Dr. De Santos. Citing the cases of Santiesteban v.
Santiesteban[7] and Tagle v. Manalo,[8] he argues that the proceedings
must continue until the estate is fully distributed to the lawful heirs,
devisees, and legatees of the testator, pursuant to Rule 73, 1 of the Rules
of Court. Consequently, petitioner contends that Branch 65 could not
lawfully act upon private respondents petition for issuance of letters
testamentary.
The contention has no merit.
In cases for the probate of wills, it is well-settled that the authority of the
court is limited to ascertaining the extrinsic validity of the will, i.e., whether
the testator, being of sound mind, freely executed the will in accordance
with the formalities prescribed by law.[9]
Ordinarily, probate proceedings are instituted only after the death of the
testator, so much so that, after approving and allowing the will, the court
proceeds to issue letters testamentary and settle the estate of the
testator. The cases cited by petitioner are of such nature. In fact, in most
jurisdictions, courts cannot entertain a petition for probate of the will of a
living testator under the principle of ambulatory nature of wills.[10]
However, Art. 838 of the Civil Code authorizes the filing of a petition for
probate of the will filed by the testator himself. It provides:
Civil Code, Art. 838. No will shall pass either real or
personal property unless it is proved and allowed in
accordance with the Rules of Court.
The testator himself may, during his lifetime, petition the
court having jurisdiction for the allowance of his will. In
such case, the pertinent provisions of the Rules of Court
for the allowance of wills after the testators death shall
govern. Miso
The Supreme Court shall formulate such additional
Rules of Court as may be necessary for the allowance
of wills on petition of the testator.
Subject to the right of appeal, the allowance of the
will, either during the lifetime of the testator or after his
death, shall be conclusive as to its due execution.
53
Rule 76, 1 likewise provides:
Sec. 1 Who may petition for the allowance of will. - Any
executor, devisee, or legatee named in a will, or any
other person interested in the estate, may, at any time
after the death of the testator, petition the court
having jurisdiction to have the will allowed, whether
the same be in his possession or not, or is lost or
destroyed.
The testator himself may, during his lifetime, petition in
the court for the allowance of his will.
The rationale for allowing the probate of wills during the lifetime of
testator has been explained by the Code Commission thus:
Most of the cases that reach the courts involve either
the testamentary capacity of the testator or the
formalities adopted in the execution of wills. There are
relatively few cases concerning the intrinsic validity of
testamentary dispositions. It is far easier for the courts
to determine the mental condition of a testator during
his lifetime than after his death. Fraud, intimidation and
undue influence are minimized. Furthermore, if a will
does not comply with the requirements prescribed by
law, the same may be corrected at once. The probate
during the testators life, therefore, will lessen the
number of contest upon wills. Once a will is probated
during the lifetime of the testator, the only questions
that may remain for the courts to decide after the
testators death will refer to the intrinsic validity of the
testamentary dispositions. It is possible, of course, that
even when the testator himself asks for the allowance
of the will, he may be acting under duress or undue
influence, but these are rare cases.
After a will has been probated during the lifetime of
the testator, it does not necessarily mean that he
cannot alter or revoke the same before his death.
Should he make a new will, it would also be allowable
on his petition, and if he should die before he has had
a chance to present such petition, the ordinary
probate proceeding after the testators death would
be in order.[11]

Thus, after the allowance of the will of Dr. De Santos on February 16, 1996,
there was nothing else for Branch 61 to do except to issue a certificate of
allowance of the will pursuant to Rule 73, 12 of the Rules of Court. There is,
therefore, no basis for the ruling of Judge Abad Santos of Branch 65 of
RTC-Makati that -Nex old
Branch 61 of the Regional Trial Court of Makati having
begun the probate proceedings of the estate of the
deceased, it continues and shall continue to exercise
said jurisdiction to the exclusion of all others. It should
be noted that probate proceedings do not cease
upon the allowance or disallowance of a will but
continues up to such time that the entire estate of the
testator had been partitioned and distributed.
The fact that the will was allowed during the lifetime of
the testator meant merely that the partition and
distribution of the estate was to be suspended until the
latters death. In other words, the petitioner, instead of
filing a new petition for the issuance of letters
testamentary, should have simply filed a manifestation
for the same purpose in the probate court.[12]
Petitioner, who defends the order of Branch 65 allowing him to intervene,
cites Rule 73, 1 which states:
Where estate of deceased persons settled. - If the
decedent is an inhabitant of the Philippines at the time
of his death, whether a citizen or an alien, his will shall
be proved, or letters of administration granted, and his
estate settled, in the Court of First Instance in the
province in which he resides at the time of his death,
and if he is an inhabitant of a foreign country, the
Court of First Instance of any province in which he had
estate. The court first taking cognizance of the
settlement of the estate of a decedent, shall exercise
jurisdiction to the exclusion of all other courts. The
jurisdiction assumed by a court, so far as it depends on
the place of residence of the decedent, or of the
location of his estate, shall not be contested in a suit or
proceeding, except in an appeal from that court, in
the original case, or when the want of jurisdiction
appears on the record.
54
The above rule, however, actually provides for the venue of actions for
the settlement of the estate of deceased persons. In Garcia Fule v. Court
of Appeals, it was held:[13]
The aforequoted Section 1, Rule 73 (formerly Rule 75,
Section 1), specifically the clause "so far as it depends
on the place of residence of the decedent, or of the
location of the state," is in reality a matter of venue, as
the caption of the Rule indicates: "Settlement of Estate
of Deceased Persons. Venue and Processes." It could
not have been intended to define the jurisdiction over
the subject matter, because such legal provision is
contained in a law of procedure dealing merely with
procedural matters. Procedure is one thing, jurisdiction
over the subject matter is another. The power or
authority of the court over the subject matter "existed
was fixed before procedure in a given cause began."
That power or authority is not altered or changed by
procedure, which simply directs the manner in which
the power or authority shall be fully and justly
exercised. There are cases though that if the power is
not exercised conformably with the provisions of the
procedural law, purely, the court attempting to
exercise it loses the power to exercise it legally.
However, this does not amount to a loss of jurisdiction
over the subject matter. Rather, it means that the court
may thereby lose jurisdiction over the person or that
the judgment may thereby be rendered defective for
lack of something essential to sustain it. The
appearance of this provision in the procedural law at
once raises a strong presumption that it has nothing to
do with the jurisdiction of the court over the subject
matter. In plain words, it is just a matter of method, of
convenience to the parties. Mani kx
Indeed, the jurisdiction over probate proceedings and settlement of
estates with approximate value of over P100,000.00 (outside Metro
Manila) or P200,000.00 (in Metro Manila) belongs to the regional trial
courts under B.P. Blg. 129, as amended. The different branches
comprising each court in one judicial region do not possess jurisdictions
independent of and incompatible with each other.[14]
It is noteworthy that, although Rule 73, 1 applies insofar as the venue of
the petition for probate of the will of Dr. De Santos is concerned, it does
not bar other branches of the same court from taking cognizance of the
 55

settlement of the estate of the testator after his death. As held in the His claim to being a creditor of the estate is a belated
leading case of Bacalso v. Ramolote:[15] one, having been raised for the first time only in his
reply to the opposition to his motion to intervene, and,
as far as the records show, not supported by evidence.
The various branches of the Court of First Instance of
Cebu under the Fourteenth Judicial District, are a
coordinate and co-equal courts, and the totality of . . . . [T]he opposition must come from one with a direct
which is only one Court of First Instance. The jurisdiction interest in the estate or the will, and the private
is vested in the court, not in the judges. And when a respondent has none. Moreover, the ground cited in
case is filed in one branch, jurisdiction over the case the private respondents opposition, that the petitioner
does not attach to the branch or judge alone, to the has deliberately misdeclared the truth worth and value
exclusion of the other branches. Trial may be held or of the estate, is not relevant to the question of her
proceedings continue by and before another branch competency to act as executor. Section 2, Rule 76 of
or judge. It is for this reason that Section 57 of the the Rules of Court requires only an allegation of the
Judiciary Act expressly grants to the Secretary of probable value and character of the property of the
Justice, the administrative right or power to apportion estate. The true value can be determined later on in
the cases among the different branches, both for the the course of the settlement of the estate.[16]
convenience of the parties and for the coordination of
the work by the different branches of the same court.
Rule 79, 1 provides:
The apportionment and distribution of cases does not
involve a grant or limitation of jurisdiction, the
jurisdiction attaches and continues to be vested in the Opposition to issuance of letters testamentary.
Court of First Instance of the province, and the trials Simultaneous petition for administration. - Any person
may be held by any branch or judge of the court. interested in a will may state in writing the grounds why
letters testamentary should not issue to the persons
named therein as executors, or any of them, and the
Necessarily, therefore, Branch 65 of the RTC of Makati City has jurisdiction
court, after hearing upon notice, shall pass upon the
over Sp. Proc. No. M-4343.
sufficiency of such grounds. A petition may, at the
same time, be filed for letters of administration with the
Second. Petitioner claims the right to intervene in and oppose the petition will annexed.
for issuance of letters testamentary filed by private respondent. He argues
that, as the nearest next of kin and creditor of the testator, his interest in
Under this provision, it has been held that an "interested person" is one
the matter is material and direct. In ruling that petitioner has no right to
who would be benefited by the estate, such as an heir, or one who has a
intervene in the proceedings before Branch 65 of RTC-Makati City, the
claim against the estate, such as a creditor, and whose interest is material
Court of Appeals held:
and direct, not merely incidental or contingent.[17]

The private respondent herein is not an heir or legatee

Even if petitioner is the nearest next of kin of Dr. De Santos, he cannot be
under the will of the decedent Arturo de Santos.
considered an "heir" of the testator. It is a fundamental rule of
Neither is he a compulsory heir of the latter. As the only
testamentary succession that one who has no compulsory or forced heirs
and nearest collateral relative of the decedent, he
may dispose of his entire estate by will. Thus, Art. 842 of the Civil Code
can inherit from the latter only in case of intestacy.
provides:
Since the decedent has left a will which has already
been probated and disposes of all his properties the
private respondent can inherit only if the said will is One who has no compulsory heirs may dispose by will
annulled. His interest in the decedents estate is, of all his estate or any part of it in favor of any person
therefore, not direct or immediate. Maniks having capacity to succeed. Manikan
 56

One who has compulsory heirs may dispose of his
estate provided he does not contravene the provisions
of this Code with regard to the legitimate of said heirs.
Compulsory heirs are limited to the testators -
(1) Legitimate children and descendants, with respect
to their legitimate parents and ascendants;
(2) In default of the foregoing, legitimate parents and
ascendants, with respect to their legitimate children
and descendants;
(3) The widow or widower;
(4) Acknowledged natural children, and natural
children by legal fiction;
(5) Other illegitimate children referred to in Article 287
of the Civil Code.[18]
Third. Petitioner contends that private respondent is guilty of forum
shopping when she filed the petition for issuance of letters testamentary
(Sp. Proc. No. M-4343) while the probate proceedings (Sp. Proc. No. M-
4223) were still pending. According to petitioner, there is identity of
parties, rights asserted, and reliefs prayed for in the two actions which are
founded on the same facts, and a judgment in either will result in res
judicata in the other.
This contention has no merit. As stated earlier, the petition for probate
was filed by Dr. De Santos, the testator, solely for the purpose of
authenticating his will. Upon the allowance of his will, the proceedings
were terminated. Oldmis o
On the other hand, the petition for issuance of letters testamentary was
filed by private respondent, as executor of the estate of Dr. De Santos, for
the purpose of securing authority from the Court to administer the estate
and put into effect the will of the testator. The estate settlement
proceedings commenced by the filing of the petition terminates upon
the distribution and delivery of the legacies and devises to the persons
named in the will. Clearly, there is no identity between the two petitions,
nor was the latter filed during the pendency of the former. There was,
consequently, no forum shopping.

Petitioner, as nephew of the testator, is not a compulsory heir who may WHEREFORE, the petition is DENIED and the decisions of the Court of
have been preterited in the testators will. Appeals are hereby AFFIRMED.

Nor does he have any right to intervene in the settlement proceedings SO ORDERED.
based on his allegation that he is a creditor of the deceased. Since the
testator instituted or named an executor in his will, it is incumbent upon
the Court to respect the desires of the testator. As we stated in Ozaeta v.
Pecson:[19]

The choice of his executor is a precious prerogative of

a testator, a necessary concomitant of his right to
dispose of his property in the manner he wishes. It is
natural that the testator should desire to appoint one
of his confidence, one who can be trusted to carry out
his wishes in the disposal of his estate. The curtailment
of this right may be considered a curtailment of the
right to dispose.

Only if the appointed executor is incompetent, refuses the trust, or fails to

give bond may the court appoint other persons to administer the
estate.[20] None of these circumstances is present in this case.