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G.R. No. L-26317 January 29, 1927

Estate of Miguel Mamuyac, deceased.
FRANCISCO GAGO, petitioner-appellant,
vs.
CORNELIO MAMUYAC, AMBROSIO LARIOSA,
FELICIANA BAUZON, and CATALINA MAMUYAC, opponents-appellees.
Nicanor Tavora for appellant.
Jose Rivera for appellees.
JOHNSON, J .:
The purpose of this action was to obtain the probation of a last will and testament of
Miguel Mamuyac, who died on the 2d day of January, 1922, in the municipality of
Agoo of the Province of La Union. It appears from the record that on or about the
27th day of July, 1918, the said Miguel Mamuyac executed a last will and testament
(Exhibit A). In the month of January, 1922, the said Francisco Gago presented a
petition in the Court of First Instance of the Province of La Union for the probation
of that will. The probation of the same was opposed by Cornelio Mamuyac,
Ambrosio Lariosa, Feliciana Bauzon, and Catalina Mamuyac (civil cause No. 1144,
Province of La Union). After hearing all of the parties the petition for the probation
of said will was denied by the Honorable C. M. Villareal on the 2d day of November,
1923, upon the ground that the deceased had on the 16th day of April, 1919,
executed a new will and testament.
On the 21st day of February, 1925, the present action was commenced. Its purpose
was to secure the probation of the said will of the 16th day of April, 1919 (Exhibit
1). To said petition Cornelio Mamuyac, Ambrosio Lariosa, Feliciana Bauzon, and
Catalina Mamuyac presented their oppositions, alleging (a) that the said will is a
copy of the second will and testament executed by the said Miguel Mamuyac; (b)
that the same had been cancelled and revoked during the lifetime of Miguel
Mamuyac and (c) that the said will was not the last will and testament of the
deceased Miguel Mamuyac.
Upon the issue thus presented, the Honorable Anastacio R. Teodoro, judge, after
hearing the respective parties, denied the probation of said will of April 16, 1919,
upon the ground that the same had been cancelled and revoked in the year 1920.
Judge Teodoro, after examining the evidence adduced, found that the following facts
had been satisfactorily proved:
That Exhibit A is a mere carbon of its original which remained in the
possession of the deceased testator Miguel Mamuyac, who revoked it before
his death as per testimony of witness Jose Fenoy, who typed the will of the
testator on April 16, 1919, and Carlos Bejar, who saw on December 30,
1920, the original Exhibit A (will of 1919) actually cancelled by the testator
Miguel Mamuyac, who assured Carlos Bejar that inasmuch as he had sold
him a house and the land where the house was built, he had to cancel it (the
will of 1919), executing thereby a new testament. Narcisa Gago in a way
corroborates the testimony of Jose Fenoy, admitting that the will executed
by the deceased (Miguel Mamuyac) in 1919 was found in the possession of
father Miguel Mamuyac. The opponents have successfully established the
fact that father Miguel Mamuyac had executed in 1920 another will. The
same Narcisa Gago, the sister of the deceased, who was living in the house
with him, when cross-examined by attorney for the opponents, testified that
the original Exhibit A could not be found. For the foregoing consideration
and for the reason that the original of Exhibit A has been cancelled by the
deceased father Miguel Mamuyac, the court disallows the probate of
Exhibit A for the applicant." From that order the petitioner appealed.
The appellant contends that the lower court committed an error in not finding from
the evidence that the will in question had been executed with all the formalities
required by the law; that the same had been revoked and cancelled in 1920 before his
death; that the said will was a mere carbon copy and that the oppositors were not
estopped from alleging that fact.
With reference to the said cancellation, it may be stated that there is positive proof,
not denied, which was accepted by the lower court, that will in question had been
cancelled in 1920. The law does not require any evidence of the revocation or
cancellation of a will to be preserved. It therefore becomes difficult at times to prove
the revocation or cancellation of wills. The fact that such cancellation or revocation
has taken place must either remain unproved of be inferred from evidence showing
that after due search the original will cannot be found. Where a will which cannot be
found is shown to have been in the possession of the testator, when last seen, the
presumption is, in the absence of other competent evidence, that the same was
cancelled or destroyed. The same presumption arises where it is shown that the
testator had ready access to the will and it cannot be found after his death. It will not
be presumed that such will has been destroyed by any other person without the
knowledge or authority of the testator. The force of the presumption of cancellation
or revocation by the testator, while varying greatly, being weak or strong according
to the circumstances, is never conclusive, but may be overcome by proof that the will
was not destroyed by the testator with intent to revoke it.
In view of the fat that the original will of 1919 could not be found after the death of
the testator Miguel Mamuyac and in view of the positive proof that the same had
been cancelled, we are forced to the conclusion that the conclusions of the lower
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court are in accordance with the weight of the evidence. In a proceeding to probate a
will the burden of proofs is upon the proponent clearly to establish not only its
execution but its existence. Having proved its execution by the proponents, the
burden is on the contestant to show that it has been revoked. In a great majority of
instances in which wills are destroyed for the purpose of revoking them there is no
witness to the act of cancellation or destruction and all evidence of its cancellation
perishes with the testator. Copies of wills should be admitted by the courts with great
caution. When it is proven, however, by proper testimony that a will was executed in
duplicate and each copy was executed with all the formalities and requirements of
the law, then the duplicate may be admitted in evidence when it is made to appear
that the original has been lost and was not cancelled or destroyed by the testator.
(Borromeo vs. Casquijo, G.R. No. L-26063.)1
After a careful examination of the entire record, we are fully persuaded that the will
presented for probate had been cancelled by the testator in 1920. Therefore the
judgment appealed from is hereby affirmed. And without any finding as to costs, it is
so ordered.
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
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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 the express 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 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')
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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.
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
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the same court. Again, the same oppositors filed an opposition to the petition based
on three grounds: (1) that petitioner is now estopped from seeking the probate of the
will of 1918; (2) that said will has not been executed in the manner required by law
and (3) that the will has been subsequently revoked. But before the second petition
could be heard, the battle for liberation came and the records of the case were
destroyed. Consequently, a petition for reconstitution was filed, but the same was
found to be impossible because neither petitioner nor oppositors could produce the
copies required for its reconstitution. As a result, petitioner filed a new petition on
September 14, 1946, similar to the one destroyed, to which the oppositors filed an
opposition based on the same grounds as those contained in their former opposition.
Then, the case was set for trial, and on May 28, 1948, the court issued an order
admitting the will to probate already stated in the early part of this decision. From
this order the oppositors appealed assigning six errors, to wit.
I. The probate court erred in not holding that the present petitioner
voluntarily and deliberately frustrated the probate of the will dated June 20,
1939, in special proceeding No. 8022, in order to enable her to obtain the
probate of another alleged will of Molo dated 191.
II. The court a quo erred in not holding that the petitioner is now estopped
from seeking the probate of Molo's alleged will of 1918.
III. The lower court erred in not holding that petitioner herein has come to
court with "unclean hands" and as such is not entitled to relief.
IV. The probate court erred in not holding that Molo's alleged will of
August 17, 1918 was not executed in the manner required by law.
V. The probate court erred in not holding that the alleged will of 1918 was
deliberately revoked by Molo himself.
VI. The lower court erred in not holding that Molo's will of 1918 was
subsequently revoked by the decedent's will of 1939.
In their first assignment of error, counsel for oppositors contend that the probate
court erred in not holding that the petitioner voluntarily and deliberately frustrated
the probate of the will dated June 20, 1939, in order to enable her to obtain the
probate of the will executed by the deceased on August 17, 1918, pointing out
certain facts and circumstances with their opinion indicate that petitioner connived
with the witness Canuto Perez in an effort to defeat and frustrate the probate of the
1939 will because of her knowledge that said will intrinsically defective in that "the
one and only testamentory disposition thereof was a "disposicion captatoria". These
circumstances, counsel for the appellants contend, constitute a series of steps
deliberately taken by petitioner with a view to insuring the realization of her plan of
securing the probate of the 1918 will which she believed would better safeguard her
right to inherit from the decease.
These imputations of fraud and bad faith allegedly committed in connection with
special proceedings No. 8022, now closed and terminated, are vigorously met by
counsel for petitioner who contends that to raise them in these proceedings which are
entirely new and distinct and completely independent from the other is improper and
unfair as they find no support whatsoever in any evidence submitted by the parties in
this case. They are merely based on the presumptions and conjectures not supported
by any proof. For this reason, counsel, contends, the lower court was justified in
disregarding them and in passing them sub silentio in its decision.
A careful examination of the evidence available in this case seems to justify this
contention. There is indeed no evidence which may justify the insinuation that
petitioner had deliberately intended to frustrate the probate of the 1939 will of the
deceased to enable her to seek the probate of another will other than a mere
conjecture drawn from the apparently unexpected testimony of Canuto Perez that he
went out of the room to answer an urgent call of nature when Artemio Reyes was
signing the will and the failure of petitioner later to impeach the character of said
witness in spite of the opportunity given her by the court to do so. Apart from this
insufficiency of evidence, the record discloses that this failure has been explained by
petitioner when she informed the court that she was unable to impeach the character
of her witness Canuto Perez because of her inability to find witnesses who may
impeach him, and this explanation stands uncontradicted. Whether this explanation is
satisfactory or not, it is not now, for us to determine. It is an incident that comes
within the province of the former case. The failure of petitioner to present the
testimony of Artemio Reyes at the hearing has also been explained, and it appears
that petitioner has filed because his whereabouts could not be found. Whether this is
true or not is also for this Court to determine. It is likewise within the province and
function of the court in the former case. And the unfairness of this imputation
becomes more glaring when we stock of the developments that had taken place in
these proceedings which show in bold relief the true nature of the conduct, behavior
and character of the petitioner so bitterly assailed and held in disrepute by the
oppositors.
It should be recalled that the first petition for the probate of the will executed on June
20, 1939, was filed on February 7, 1941, by the petitioner. There being no
opposition, the will was probated. Subsequently, however, upon petition of the
herein oppositors, the order of the court admitting said will to probate was set aside,
over the vigorous opposition of the herein petitioner, and the case was reopened. The
reopening was ordered because of the strong opposition of the oppositors who
contended that he will had not been executed as required by law. After the evidence
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of both parties had been presented, the oppositors filed an extensive memorandum
wherein they reiterated their view that the will should be denied probate. And on the
strenght of this opposition, the court disallowed the will.
If petitioner then knew that the 1939 will was inherently defective and would make
the testamentary disposition in her favor invalid and ineffective, because it is a
"disposicion captatoria", which knowledge she may easily acquire through
consultation with a lawyer, there was no need her to go through the order of filing
the petition for the probate of the will. She could accomplish her desire by merely
suppressing the will or tearing or destroying it, and then take steps leading to the
probate of the will executed in 1918. But for her conscience was clear and bade her
to take the only proper step possible under the circumstances, which is to institute the
necessary proceedings for the probate of the 1939 will. This she did and the will was
admitted to probate. But then the unexpected happened. Over her vigorous
opposition, the herein appellants filed a petition for reopening, and over her vigorous
objection, the same was granted and the case was reopened. Her motion for
reconsideration was denied. Is it her fault that the case was reopened? Is it her fault
that the order admitting the will to probate was set aside? That was a contingency
which petitioner never expected. Had appellants not filed their opposition to the
probate of the will and had they limited their objection to the intrinsic validity of said
will, their plan to defeat the will and secure the intestacy of the deceased would have
perhaps been accomplished. But they failed in their strategy. If said will was denied
probate it is due to their own effort. It is now unfair to impute bad faith petitioner
simply because she exerted every effort to protect her own interest and prevent the
intestacy of the deceased to happen.
Having reached the foregoing conclusions, it is obvious that the court did not commit
the second and third errors imputed to it by the counsel for appellants. Indeed,
petitioner cannot be considered guilty or estoppel which would prevent her from
seeking the probate of the 1918 will simply because of her effort to obtain the
allowance of the 1939 will has failed considering that in both the 1918 and 1939
wills she was in by her husband as his universal heir. Nor can she be charged with
bad faith far having done so because of her desire to prevent the intestacy of her
husband. She cannot be blamed being zealous in protecting her interest.
The next contention of appellants refers to the revocatory clause contained in 1939
will of the deceased which was denied probate. They contend that, notwithstanding
the disallowance of said will, the revocatory clause is valid and still has the effect of
nullifying the prior of 1918.
Counsel for petitioner meets this argument by invoking the doctrine laid down in the
case of Samson vs. Naval, (41 Phil., 838). He contends that the facts involved in that
case are on all fours with the facts of this case. Hence, the doctrine is that case is
here controlling.
There is merit in this contention. We have carefully read the facts involved in the
Samson case we are indeed impressed by their striking similarity with the facts of
this case. We do not need to recite here what those facts are; it is enough to point out
that they contain many points and circumstances in common. No reason, therefore, is
seen by the doctrine laid down in that case (which we quote hereunder) should not
apply and control the present case.
A subsequent will, containing a clause revoking a previous will, having
been disallowed, for the reason that it was not executed in conformity with
the provisions of section 618 of the Code of Civil Procedure as to the
making of wills, cannot produce the effect of annulling the previous will,
inasmuch as said revocatory clause is void. (41 Phil., 838.)
Apropos of this question, counsel for oppositors make the remark that, while they do
not disagree with the soundness of the ruling laid down in the Samson case, there is
reason to abandon said ruling because it is archaic or antiquated and runs counter to
the modern trend prevailing in American jurisprudence. They maintain that said
ruling is no longer controlling but merely represents the point of view of the minority
and should, therefore, be abandoned, more so if we consider the fact that section 623
of our Code of Civil Procedure, which governs the revocation of wills, is of
American origin and as such should follow the prevailing trend of the majority view
in the United States. A long line of authorities is cited in support of this contention.
And these authorities hold the view, that "an express revocation is immediately
effective upon the execution of the subsequent will, and does not require that it first
undergo the formality of a probate proceeding". (p. 63, appellants' brief .
While they are many cases which uphold the view entertained by counsel for
oppositors, and that view appears to be in controlling the states where the decisions
had been promulgated, however, we are reluctant to fall in line with the assertion that
is now the prevailing view in the United States. In the search we have made of
American authorities on the subject, we found ourselves in a pool of conflicting
opinions perhaps because of the peculiar provisions contained in the statutes adopted
by each State in the subject of revocation of wills. But the impression we gathered
from a review and the study of the pertinent authorities is that the doctrine laid down
in the Samson case is still a good law. On page 328 of the American Jurisprudence
Vol. 57, which is a revision Published in 1948, we found the following passages
which in our opinion truly reflect the present trend of American jurisprudence on this
matter affecting the revocation of wills:
Page 7 of 34

SEC. 471. Observance of Formalities in Execution of Instrument.
Ordinarily, statutes which permit the revocation of a will by another writing
provide that to be effective as a revocation, the writing must be executed
with the same formalities which are required to be observed in the
execution of a will. Accordingly, where, under the statutes, attestation is
necessary to the making of a valid will, an unattested non testamentary
writing is not effective to revoke a prior will. It has been held that a writing
fails as a revoking instrument where it is not executed with the formalities
requisite for the execution of a will, even though it is inscribed on the will
itself, although it may effect a revocation by cancellation or obliteration of
the words of the will. A testator cannot reserve to himself the power to
modify a will by a written instrument subsequently prepared but not
executed in the manner required for a will.
SEC, 472. Subsequent Unexecuted, Invalid, or Ineffective Will or Codicil.
A will which is invalid because of the incapacity of the testator, or of
undue influence can have no effect whatever as a revoking will. Moreover,
a will is not revoked by the unexecuted draft of a later one. Nor is a will
revoked by a defectively executed will or codicil, even though the latter
contains a clause expressly revoking the former will, in a jurisdiction where
it is provided by a controlling statute that no writing other than a
testamentary instrument is sufficient to revoke a will, for the simple reason
that there is no revoking will. Similarly where the statute provides that a
will may be revoked by a subsequent will or other writing executed with the
same formalities as are required in the execution of wills, a defectively
executed will does not revoke a prior will, since it cannot be said that there
is a writing which complies with the statute. Moreover, a will or codicil
which, on account of the manner in which it is executed, is sufficient to pass
only personally does not affect dispositions of real estate made by a former
will, even though it may expressly purport to do so. The intent of the
testator to revoke is immaterial, if he has not complied with the statute. (57
Am. Jur., 328, 329.)
We find the same opinion in the American Law Reports, Annotated, edited in 1939.
On page 1400, Volume 123, there appear many authorities on the "application of
rules where second will is invalid", among which a typical one is the following:
It is universally agreed that where the second will is invalid on account of
not being executed in accordance with the provisions of the statute, or
where the testator who has not sufficient mental capacity to make a will or
the will is procured through undue influence, or the such, in other words,
where the second will is really no will, it does not revoke the first will or
affect it in any manner. Mort vs. Baker University (193-5) 229 Mo. App.,
632, 78 S.W. (2d), 498.
These treaties cannot be mistaken. They uphold the view on which the ruling in the
Samson case is predicated. They reflect the opinion that this ruling is sound and good
and for this reason, we see no justification for abondoning it as now suggested by
counsel for the oppositors.
It is true that our law on the matter (sec. 623, Code Civil Procedure) provides that a
will may be some will, codicil, or other writing executed as proved in case of wills"
but it cannot be said that the 1939 will should be regarded, not as a will within the
meaning of said word, but as "other writing executed as provided in the case of
wills", simply because it was denied probate. And even if it be regarded as any other
writing within the meaning of said clause, there is authority for holding that unless
said writing is admitted to probate, it cannot have the effect of revocation. (See 57
Am. Jur. pp. 329-330).
But counsel for oppositors contemned that, regardless of said revocatory clause, said
will of 1918 cannot still be given effect because of the presumption that it was
deliberately revoked by the testator himself. The oppositors contend that the testator,
after executing the 1939 will, and with full knowledge of the recovatory clause
contained said will, himself deliberately destroyed the original of the 1918 will, and
for that reason the will submitted by petitioner for probate in these proceedings is
only a duplicate of said original.
There is no evidence which may directly indicate that the testator deliberately
destroyed the original of the 1918 will because of his knowledge of the revocatory
clause contained in the will he executed in 1939. The only evidence we have is that
when the first will was executed in 1918, Juan Salcedo, who prepared it, gave the
original and copies to the testator himself and apparently they remained in his
possession until he executed his second will in 1939. And when the 1939 will was
denied probate on November 29, 1943, and petitioner was asked by her attorney to
look for another will, she found the duplicate copy (Exhibit A) among the papers or
files of the testator. She did not find the original.
If it can be inferred that the testator deliberately destroyed the 1918 will because of
his knowledge of the revocatory clause of the 1939 will, and it is true that he gave a
duplicate copy thereof to his wife, the herein petitioner, the most logical step for the
testator to take is to recall said duplicate copy in order that it may likewise be
destroyed. But this was not done as shown by the fact that said duplicate copy
remained in the possession of petitioner. It is possible that because of the long lapse
of twenty-one (21) years since the first will was executed, the original of the will had
been misplaced or lost, and forgetting that there was a copy, the testator deemed it
Page 8 of 34

wise to execute another will containing exactly the same testamentary dispositions.
Whatever may be the conclusion we may draw from this chain of circumstances, the
stubborn fact is that there is no direct evidence of voluntary or deliberate destruction
of the first will by the testator. This matter cannot be inference or conjectur.
Granting for the sake of argument that the earlier will was voluntarily destroyed by
the testator after the execution of the second will, which revoked the first, could
there be any doubt, under this theory, that said earlier will was destroyed by the
testator in the honest belief that it was no longer necessary because he had expressly
revoked it in his will of 1939? In other words, can we not say that the destruction of
the earlier will was but the necessary consequence of the testator's belief that the
revocatory clause contained in the subsequent will was valid and the latter would be
given effect? If such is the case, then it is our opinion that the earlier will can still be
admitted to probate under the principle of "dependent relative revocation".
This doctrine is known as that of dependent relative revocation, and is
usually applied where the testator cancels or destroys a will or executes an
instrument intended to revoke a will with a present intention to make a new
testamentary disposition as a substitute for the old, and the new disposition
is not made or, if made, fails of effect for same reason. The doctrine is n
limited to the existence of some other document, however, and has been
applied where a will was destroyed as a consequence of a mistake of law. . .
. (68 C.J.P. 799).
The rule is established that where the act of destruction is connected with
the making of another will so as fairly to raise the inference that the testator
meant the revocation of the old to depend upon the efficacy of a new
disposition intended to be substituted, the revocation will be conditional and
dependent upon the efficacy of the new disposition; and if, for any reason,
the new will intended to be made as a substitute is inoperative, the
revocation fails and the original will remains in full force. (Gardner, pp.
232, 233.)
This is the doctrine of dependent relative revocation. The failure of a new
testamentary disposition upon whose validity the revocation depends, is
equivalent to the non-fulfillment of a suspensive conditions, and hence
prevents the revocation of the original will. But a mere intent to make at
some time a will in the place of that destroyed will not render the
destruction conditional. It must appear that the revocation is dependent
upon the valid execution of a new will. (1 Alexander, p. 751; Gardner, p.
253.)
We hold therefore, that even in the supposition that the destruction of the original
will by the testator could be presumed from the failure of the petitioner to produce it
in court, such destruction cannot have the effect of defeating the prior will of 1918
because of the fact that it is founded on the mistaken belief that the will of 1939 has
been validly executed and would be given due effect. The theory on which this
principle is predicated is that the testator did not intend to die intestate. And this
intention is clearly manifest when he executed two wills on two different occasion
and instituted his wife as his universal heir. There can therefore be no mistake as to
his intention of dying testate.
The remaining question to be determined refers to the sufficiency of the evidence to
prove the due execution of the will.The will in question was attested, as required by
law, by three witnesses, Lorenzo Morales, Rufino Enriquez, and Angel Cuenca. The
first two witnesses died before the commencement of the present proceedings. So the
only instrumental witness available was Angel Cuenca and under our law and
precedents, his testimony is sufficient to prove the due execution of the will.
However, petitioner presented not only the testimony of Cuenca but placed on the
witness stand Juan Salcedo, the notary public who prepared and notarized the will
upon the express desire and instruction of the testator, The testimony of these
witnesses shows that the will had been executed in the manner required by law. We
have read their testimony and we were impressed by their readiness and sincerity.
We are convinced that they told the truth.Wherefore, the order appealed from is
hereby affirmed, with costs against the appellants.1wphl.
G.R. No. 17714, In re Estate of De Leon. Diaz v. De Leon, 43 Phil. 413
The only question raised in this case is whether or to the will executed by Jesus de
Leon, now, was revoked by him.
The petitioner denies such revocation, while the contestant affirms the same by
alleging that the testator revoked his will by destroying it, and by executing another
will expressly revoking the former.
We find that the second will Exhibit 1 executed by the deceased is not cloth with all
the necessary requisites to constitute a sufficient revocation.
Page 9 of 34

But according to the statute governing the subject in this jurisdiction, the destruction
of a will animo revocandi constitutes, in itself, a sufficient revocation. (Sec.
623, Code of Civil Procedure.)
From the evidence submitted in this case, it appears that the testator, shortly after the
execution of the first will in question, asked that the same be returned to him. The
instrument was returned to the testator who ordered his servant to tear the document.
This was done in his presence and before a nurse who testified to this effect. After
some time, the testator, being asked by Dr. Cornelio Mapa about the will, said that it
had been destroyed.
The intention of revoking the will is manifest from the established fact that the
testator was anxious to withdraw or change the provisions he had made in his first
will. This fact is disclosed by the testator's own statements to the witnesses Canto
and the Mother Superior of the Hospital where he was confined.
The original will herein presented for probate having been destroyed with animo
revocandi, cannot now be probated as the will and last testament of Jesus de Leon.
Judgement is affirmed with costs against the petitioner. So ordered.
Araullo, C.J., Malcolm, Avancea, Ostrand and Johns, JJ., concur.
Villamor, J., took no part.
G.R. No. 38050, Manahan v. Manahan, 58 Phil. 448
J. Fernando Rodrigo for appellant.
Heraclio H. del Pilar for appellee.
IMPERIAL, J .:
This is an appeal taken by the appellant herein, Engracia Manahan, from the order of
the Court of the First Instance of Bulacan dated July 1, 1932, in the matter of the will
of the deceased Donata Manahan, special proceedings No. 4162, denying her motion
for reconsideration and new trial filed on May 11, 1932.
The fact in the case are as follows:
On August 29, 1930, Tiburcia Manahan instituted special proceedings No. 4162, for
the probate of the will of the deceased Donata Manahan, who died in Bulacan,
Province of Bulacan, on August 3, 1930. The petitioner herein, niece of the testatrix,
was named the executrix in said will. The court set the date for the hearing and the
necessary notice required by law was accordingly published. On the day of the
hearing of the petition, no opposition thereto was filed and, after the evidence was
presented, the court entered the decree admitting the will to probate as prayed for.
The will was probated on September 22, 1930. The trial court appointed the herein
petitioner executrix with a bond of P1,000, and likewise appointed the committed on
claims and appraisal, whereupon the testamentary proceedings followed the usual
course. One year and seven months later, that is, on My 11, 1932, to be exact, the
appellant herein filed a motion for reconsideration and a new trial, praying that the
order admitting the will to probate be vacated and the authenticated will declared
null and void ab initio. The appellee herein, naturally filed her opposition to the
petition and, after the corresponding hearing thereof, the trial court erred its over of
denial on July 1, 1932. Engracia Manahan, under the pretext of appealing from this
last order, likewise appealed from the judgment admitting the will to probate.
In this instance, the appellant assigns seven (7) alleged errors as committed by the
trial court. Instead of discussing them one by one, we believe that, essentially, her
Page 10 of 34

claim narrows down to the following: (1) That she was an interested party in the
testamentary proceedings and, as such, was entitled to and should have been notified
of the probate of the will; (2) that the court, in its order of September 22, 1930, did
not really probate the will but limited itself to decreeing its authentication; and (3)
that the will is null and void ab initio on the ground that the external formalities
prescribed by the Code of Civil Procedure have not been complied with in the
execution thereof.
The appellant's first contention is obviously unfounded and untenable. She was not
entitled to notification of the probate of the will and neither had she the right to
expect it, inasmuch as she was not an interested party, not having filed an opposition
to the petition for the probate thereof. Her allegation that she had the status of an
heir, being the deceased's sister, did not confer on her the right to be notified on the
ground that the testatrix died leaving a will in which the appellant has not been
instituted heir. Furthermore, not being a forced heir, she did not acquire any
successional right.
The second contention is puerile. The court really decreed the authentication and
probate of the will in question, which is the only pronouncement required of the trial
court by the law in order that the will may be considered valid and duly executed in
accordance with the law. In the phraseology of the procedural law, there is no
essential difference between the authentication of a will and the probate thereof. The
words authentication and probate are synonymous in this case. All the law requires is
that the competent court declared that in the execution of the will the essential
external formalities have been complied with and that, in view thereof, the
document, as a will, is valid and effective in the eyes of the law.
The last contention of the appellant may be refuted merely by stating that, once a
will has been authenticated and admitted to probate, questions relative to the validity
thereof can no more be raised on appeal. The decree of probate is conclusive with
respect to the due execution thereof and it cannot impugned on any of the grounds
authorized by law, except that of fraud, in any separate or independent action or
proceedings (sec. 625, Code of Civil Procedure; Castaeda vs. Alemany, 3 Phil.,
426;Pimentel vs. Palanca, 5 Phil., 436; Sahagun vs. De Gorostiza, 7 Phil.,
347; Limjuco vs. Ganara, 11 Phil., 393; Montaano vs. Suesa, 14 Phil., 676; In re
Estate of Johnson, 39 Phil., 156; Riera vs. Palmaroli, 40 Phil., 105; Austria vs.
Ventenilla, 21 Phil., 180; Ramirez vs. Gmur, 42 Phil., 855; and Chiong Joc-Soy vs.
Vao, 8 Phil., 119).
But there is another reason which prevents the appellant herein from successfully
maintaining the present action and it is that inasmuch as the proceedings followed in
a testamentary case are in rem, the trial court's decree admitting the will to probate
was effective and conclusive against her, in accordance with the provisions of
section 306 of the said Code of Civil Procedure which reads as follows:
SEC. 306. EFFECT OF JUDGMENT. . . . .
1. In case of a judgment or order against a specific thing, or in respect to the probate
of a will, or the administration of the estate of a deceased person, or in respect to the
personal, political, or legal condition or relation of a particular person the judgment
or order is conclusive upon the title of the thing, the will or administration, or the
condition or relation of the person: Provided, That the probate of a will or granting
of letters of administration shall only be prima facieevidence of the death of the
testator or intestate; . . . .
Page 11 of 34

On the other hand, we are at a loss to understand how it was possible for the herein
appellant to appeal from the order of the trial court denying her motion for
reconsideration and a new trial, which is interlocutory in character. In view of this
erroneous interpretation, she succeeded in appealing indirectly from the order
admitting the will to probate which was entered one year and seven months ago.
Before closing, we wish to state that it is not timely to discuss herein the validity and
sufficiency of the execution of the will in question. As we have already said, this
question can no more be raised in this case on appeal. After due hearing, the court
found that the will in question was valid and effective and the order admitting it to
probate, thus promulgated, should be accepted and respected by all. The probate of
the will in question now constitutes res judicata.
Wherefore, the appeal taken herein is hereby dismissed, with costs against the
appellant. So ordered.
G.R. No. L-29300 June 21, 1978
Gallanosa vs Arcangel
AQUINO, J .:
In this special civil action of certiorari, filed on July 29, 1968, the petitioners seek to
annul the orders of respondent Judge dated May 3 trial June 17, 1968, wherein he
reconsidered his order of January 10, 1968, dismissing, on the ground of
prescription, the complaint in Civil Case No. 2233 of the Court of First Instance of
Sorsogon.
The case involves the sixty-one parcels of land in Sorsogon left by Florentino
Hitosis, with an estimated value of P50,000, trial claims for damages exceeding one
million pesos. The undisputed facts are as follows:
1. Florentino Hitosis executed a will in the Bicol dialect on June 19, 1938 when he
was eighty years old. He died on May 26, 1939 at Irosin, Sorsogon. A childless
widower, he as survived by his brother, Leon Hitosis. His other brothers, named
Juan, Tito (Juancito), Leoncio (Aloncio) trial Apolonio and only sister, Teodora,
were all dead.
2. On June 24, 1939 a petition for the probate of his will was filed in the Court of
First Instance of Sorsogon (Special Proceeding No. 3171). The notice of hearing was
duly published. In that will, Florentino bequeathed his one-half share in the conjugal
estate to his second wife, Tecla Dollentas, and, should Tecla predecease him, as was
the case, his one-half share would be assigned to the spouses Pedro Gallanosa and
Corazon Grecia, the reason being that Pedro, Tecla's son by her first marriage, grew
up under the care of Florentino; he had treated Pedro as his foster child, and Pedro
has rendered services to Florentino and Tecla. Florentino likewise bequeathed his
separate properties consisting of three parcels of abaca land and parcel of riceland to
his protege (sasacuyang ataman), Adolfo Fortajada, a minor.
3. Opposition to the probate of the will was registered by the testator's legal heirs,
namely, his surviving brother, Leon, trial his nephews trial nieces. After a hearing,
wherein the oppositors did not present any evidence in support of their opposition,
Judge Pablo S. Rivera, in his decision of October 27, 1939, admitted the will to
probate and appointed Gallanosa as executor. Judge Rivera specifically found that
the testator executed his last will "gozando de buena salud y facultades mentales y no
obrando en virtud de amenaza, fraude o influencia indebida."
4. On October 24, 1941, the testamentary heirs, the Gallanosa spouses trial Adolfo
Fortajada, submitted a project of partition covering sixty-one parcels of land located
in various parts of Sorsogon, large cattle trial several pieces of personal property
which were distributed in accordance with Florentino's will. The heirs assumed the
obligations of the estate amounting to P7,129.27 in the portion of P2,376.42 for
Adolfo Fortajada and P4,752.85 for the Gallanosa spouses. The project of partition
was approved by Judge Doroteo Amador in his order of March 13, 1943, thus
confirming the heirs' possession of their respective shares. The testator's legal heirs
did not appeal from the decree of probate trial from the order of partition trial
distribution.
5. On February 20, 1952, Leon Hitosis trial the heirs of Florentino's deceased
brothers trial sisters instituted an action in the Court of First Instance of Sorsogon
against Pedro Gallanosa for the recovery of the said sixty-one parcels of land. They
alleged that they, by themselves or through their predecessors-in-interest, had been in
continuous possession of those lands en concepto de dueo trial that Gallanosa
entered those lands in 1951 trial asserted ownership over the lands. They prayed that
they be declared the owners of the lands trial that they be restored to the possession
thereof. They also claimed damages (Civil Case No. 696).
Page 12 of 34

6. Gallanosa moved to dismiss the above complaint for lack of cause of action trial
on the ground of bar by the prior judgment in the probate proceeding. Judge Anatolio
C. Maalac dismiss the complaint on the ground of res judicata in his order of
August 14, 1952 wherein he said:
It also appears that the plaintiffs and/or their predecessors-in-
interest had intervened in the testate proceedings in Civil Case No.
3171 of this Court for- the purpose of contesting the probate of the
will of (the) late Florentino Hitosis; trial had their opposition
prospered trial the will denied of probate, the proceedings would
have been converted into one of intestacy (Art. 960 Civil Code)
and the settlement of the estate of the said deceased would have
been made in accordance with the provisions of law governing
legal or intestate succession ... , in which case the said plaintiffs, as
the nearest of kin or legal heirs of said Florentino Mitosis, would
have succeeded to the ownership and possession of the 61 parcels
of land in question forming part of his estate (art. 1003, Civil
Code).
However, the derision of the Court was adverse to them, when it
their opposition trial ordered the probate of his will. From this
decision (Annex K) legalizing the said will, the oppositors did not
file any appeal within the period fixed by law, despite the fact that
they were duly notified thereof, so that the said decision had
become final trial it now constitutes a bar to any action that the
plaintiffs may institute for the purpose of a redetermination of their
rights to inherit the properties of the late Florentino Hitosis.
In other words, the said decision of this Court in Civil Case special
) No. 3171, in which the herein plaintiffs or their predecessors-in-
interest had intervened as parties oppositors, constitutes a final
judicial determination of the issue that the said plaintiffs, as
ordinary heirs, have no legal rights to succeed to any of the
properties of the late Florentino Hitosis; consequently, their
present claim to the ownership trial possession of the 61 parcels of
land in question is without any legal merit or basis.
7. The plaintiffs did not appeal from that order of dismissal which should have set
the matter at rest. But the same plaintiffs or oppositors to the probate of the will, trial
their heirs, with a persistence befitting a more meritorious case, filed on September
21, 1967, or fifteen years after the dismissal of Civil Case No. 696 trial twenty-eight
years after the probate of the will another action in the same court against the
Gallanosa spouses trial Adolfo Fortajada for the "annulment" of the will of
Florentino Hitosis trial and for the recovery of the same sixty-one parcels of land.
They prayed for the appointment of a receiver.
8. As basis of their complaint, they alleged that the Gallanosa spouses, through fraud
trial deceit, caused the execution trial simulation of the document purporting to be
the last will trial testament of Florentino Hitosis. While in their 1952 complaint the
game plaintiffs alleged that they were in possession of the lands in question, in their
1967 complaint they admitted that since 1939, or from the death of Florentino
Hitosis, the defendants (now the petitioners) have been in possession of the disputed
lands (Par. XIV of the complaint, p. 70, Rollo in Civil Case No. 555, Gubat Branch,
which was transferred to Branch I in Sorsogon town where Special Proceeding No.
3171 trial Civil Case No. 696 were decided trial which was re-docketed as Civil Case
No. 2233).
9. As already stated, that 1967 complaint, upon motion of the defendants, now the
petitioners, was dismissed by respondent Judge. The plaintiffs filed a motion for
reconsideration Respondent Judge. granted it trial set aside the order of dismissal. He
denied defendants' motion for the reconsideration of his order setting aside that
dismissal order.
The petitioners or the defendants below contend in this certiorari case that the lower
court has no jurisdiction to set aside the 1939 decree of probate trial the 1952 order
of dismissal in Civil Case No. 696 trial that it acted with grave abuse of discretion in
not dismissing private respondents' 1967 complaint.
The issue is whether, under the facts set forth above, the private respondents have a
cause of action the "annulment" of the will of Florentino Hitosis trial for the recovery
of the sixty-one parcels of land adjudicated under that will to the petitioners.
We hold that the lower court committed a grave abuse of discretion in
reconsideration its order of dismissal trial in ignoring the 1939 testamentary case
trial the 1952 Civil Case No. 696 which is the same as the instant 1967 case.
A rudimentary knowledge of substantive law trial procedure is sufficient for an
ordinary lawyer to conclude upon a causal perusal of the 1967 complaint that it is
baseless trial unwarranted.
What the plaintiffs seek is the "annulment" of a last will trial testament duly probated
in 1939 by the lower court itself. The proceeding is coupled with an action to recover
the lands adjudicated to the defendants by the same court in 1943 by virtue of the
probated will, which action is a resuscitation of The complaint of the same parties
that the same court dismissed in 1952.
Page 13 of 34

It is evident from the allegations of the complaint trial from defendants' motion to
dismiss that plaintiffs' 1967 action is barred by res judicata, a double-barrelled
defense, trial by prescription, acquisitive trial extinctive, or by what are known in
the jus civile trial the jus gentium as usucapio, longi temporis
possesio and praescriptio (See Ramos vs. Ramos, L-19872, December 3, 1974, 61
SCRA 284).
Our procedural law does not sanction an action for the "annulment" of a will. In
order that a will may take effect, it has to be probated, legalized or allowed in the
proper testamentary proceeding. The probate of the will is mandatory (Art. 838, Civil
Code; sec. 1, Rule 75, formerly sec. 1, Rule 76, Rules of Court; Guevara vs.
Guevara, 74 Phil. 479; Guevara vs. Guevara, 98 Phil. 249).
The testamentary proceeding is a special proceeding for the settlement of the
testator's estate. A special proceeding is distinct trial different from an ordinary
action (Secs. 1 trial 2, Rule 2 trial sec. 1, Rule 72, Rules of Court).
We say that the defense of res judicata, as a ground for the dismissal of plaintiffs'
1967 complaint, is a two-pronged defense because (1) the 1939 trial 1943 decrees of
probate trial distribution in Special Proceeding No. 3171 trial (2) the 1952 order of
dismissal in Civil Case No. 696 of the lower court constitute bars by former
judgment, Rule 39 of the Rules of Court provides:
SEC. 49. Effect of judgments. The effect of a judgment or final
order rendered by a court or judge of the Philippines, having
jurisdiction to pronounce the judgment or order, may be as
follows:
(a) In case of a judgment or order against a specific thing, or in
respect to the probate of a will or the administration of the estate of
a deceased person, or in respect to the personal, political, or legal
condition or status of a particular person or his relationship to
another, the judgment or order is conclusive upon the title to the
thing the will or administration, or the condition, status or
relationship of the person; however, the probate of a will or
granting of letters of administration shall only be prima facie
evidence of the death of the testator or intestate;
(b) In other cases the judgment or order is, with respect to the
matter directly adjudged or as to any other matter that could have
been raised in relation thereto, conclusive between the parties trial
their successors in interest by title subsequent to the
commencement of the action or special proceeding, litigating of
the same thing trial under the same title trial in the same capacity;
(c) In any other litigation between the same parties or their
successors in interest, that only is deemed to have been adjudged in
a former judgment which appears upon its face to have been so
adjudged, or which was actually trial necessarily included therein
or necessary thereto.
The 1939 decree of probate is conclusive as to the due execution or formal validity
of the will (Sec. 625, Act 190, sec. 1, Rule 76, now sec. 1, Rule 75, Rules of Court;
Last par. of art. 838, Civil Code).
That means that the testator was of sound trial disposing mind at the time when he
executed the will and was not acting under duress, menace, fraud, or undue
influence; that the will was signed by him in the presence of the required number of
witnesses, and that the will is genuine trial is not a forgery. Accordingly, these facts
cannot again be questioned in a subsequent proceeding, not even in a criminal action
for the forgery of the will. (3 Moran's Comments on the Rules of Court, 1970
Edition, p. 395; Manahan vs. Manahan, 58 Phil. 448).
After the finality of the allowance of a will, the issue as to the voluntariness of its
execution cannot be raised anymore (Santos vs. De Buenaventura, L-22797,
September 22, 1966, 18 SCRA 47).
In Austria vs. Ventenilla, 21 Phil. 180, a "petition for annulment of a will" was not
entertained after the decree of probate had become final. That case is summarized as
follows:
Wills; Probate; Alledged Fraudulent Will; Appeal. V. died. His
will was admitted to probate without objection. No appeal was
taken from said order. It was admitted that due trial legal notice
had been given to all parties. Fifteen months after the date of said
order, a motion was presented in the lower court to have said will
declared null and void, for the reason that fraud had been practised
upon the deceased in the making of his will.
Held: That under section 625 of Act No. 190, the only time given
parties who are displeased with the order admitting to probate a
will, for an appeal is the time given for appeals in ordinary actions;
but without deciding whether or not an order admitting a will to
probate will be opened for fraud, after the time allowed for an
appeal has expired, when no appeal is taken from an order
Page 14 of 34

probating a will, the heirs can not, in subsequent litigation in the
same proceedings, raise questions relating to its due execution. The
probate of a will is conclusive as to its due execution trial as to the
testamentary capacity of The testator. (See Austria vs. Heirs of
Ventenilla. 99 Phil. 1069).
On the other hand, the 1943 decree of adjudication rendered by the trial court in the
testate proceeding for the settlement of the estate of Florentino Hitosis, having been
rendered in a proceeding in rem, is under the abovequoted section 49(a), binding
upon the whole world (Manalo vs. Paredes, 47 Phil. 938; In re Estate of Johnson, 39
Phil. 156; De la Cerna vs. Potot, 120 Phil. 1361, 1364; McMaster vs. Hentry
Reissmann & Co., 68 Phil. 142).
It is not only the 1939 probate proceeding that can be interposed as res judicata with
respect to private respondents' complaint, The 1952 order of dismissal rendered by
Judge Maalac in Civil Case No. 696, a judgment in personam was an adjudication
on the merits (Sec. 4, Rule 30, old Rules of Court). It constitutes a bar by former
judgment under the aforequoted section 49(b) (Anticamara vs. Ong, L-29689. April
14, 1978).
The plaintiffs or private respondents did not even bother to ask for the annulment of
the testamentary proceeding trial the proceeding in Civil Case No. 696. Obviously,
they realized that the final adjudications in those cases have the binding force of res
judicata and that there is no ground, nor is it timely, to ask for the nullification of the
final orders trial judgments in those two cases.
It is a fundamental concept in the organization of every jural system, a principle of
public policy, that, at the risk of occasional errors, judgments of courts should
become final at some definite date fixed by law. Interest rei publicae ut finis sit
litum. "The very object for which the courts were constituted was to put an end to
controversies." (Dy Cay vs. Crossfield and O'Brien, 38 Phil. 521: Pealosa vs.
Tuason, 22 Phil, 303; De la Cerna vs. Potot, supra).
After the period for seeking relief from a final order or judgment under Rule 38 of
the Rules of Court has expired, a final judgment or order can be set aside only on the
grounds of (a) lack of jurisdiction or lack of due process of law or (b) that the
judgment was obtained by means of extrinsic or collateral fraud. In the latter case,
the period for annulling the judgment is four years from the discovery of the fraud (2
Moran's Comments on the Rules of Court, 1970 Edition, pp. 245-246; Mauricio vs.
Villanueva, 106 Phil. 1159).
To hurdle over the obstacle of prescription, the trial court, naively adopting the
theory of plaintiffs' counsel, held that the action for the recovery of the lands had not
prescribed because the rule in article 1410 of the Civil Code, that "the action or
defense for the declaration of the inexistence of a contract does not prescribe",
applies to wills.
That ruling is a glaring error. Article 1410 cannot possibly apply to last wills trial
testaments. The trial court trial plaintiffs' counsel relied upon the case of Dingle vs.
Guillermo, 48 0. G. 4410, allegedly decided by this Court, which cited the ruling in
Tipton vs. Velasco, 6 Phil. 67, that mere lapse of time cannot give efficacy to
voidcontracts, a ruling elevated to the category of a codal provision in article 1410.
The Dingle case was decided by the Court of Appeals. Even the trial court did not
take pains to verify the misrepresentation of plaintiffs' counsel that the Dingle case
was decided by this Court. An elementary knowledge of civil law could have alerted
the trial court to the egregious error of plaintiffs' counsel in arguing that article 1410
applies to wills.
WHEREFORE, the lower court's orders of May 3 trial June 17, 1968 are reversed
trial set aside trial its order of dismissal dated January 10, 1968 is affirmed. Costs
against the private respondents.
SO ORDERED.
G.R. No. L-20234 December 23, 1964
PAULA DE LA CERNA, ET AL., petitioners,
vs.
MANUELA REBACA POTOT, ET AL., and THE HONORABLE COURT OF
APPEALS, respondents.
REYES, J.B.L., J .:
Appeal by Paula de la Cerna and others from a decision of the Court of Appeals,
Sixth Division (C.A.-G.R. No. 23763-R) reversing that of the Court of First Instance
of Cebu (Civ. Case No. R-3819) and ordering the dismissal of an action for partition.
The factual background appears in the following portion of the decision of the Court
of Appeals (Petition, Annex A, pp. 2-4):
It appears that on May 9, 1939, the spouses, Bernabe de la Serna and
Gervasia Rebaca, executed a joint last will and testament in the local dialect
whereby they willed that "our two parcels of land acquired during our
marriage together with all improvements thereon shall be given to Manuela
Rebaca, our niece, whom we have nurtured since childhood, because God
Page 15 of 34

did not give us any child in our union, Manuela Rebaca being married to
Nicolas Potot", and that "while each of the testators is yet living, he or she
will continue to enjoy the fruits of the two lands aforementioned", the said
two parcels of land being covered by Tax No. 4676 and Tax No. 6677, both
situated in sitio Bucao, barrio Lugo, municipality of Borbon, province of
Cebu. Bernabe dela Serna died on August 30, 1939, and the aforesaid will
was submitted to probate by said Gervasia and Manuela before the Court of
First Instance of Cebu which, after due publication as required by law and
there being no opposition, heard the evidence, and, by Order of October 31,
1939; in Special Proceedings No. 499, "declara legalizado el documento
Exhibit A como el testamento y ultima voluntad del finado Bernabe de la
Serna con derecho por parte du su viuda superstite Gervasia Rebaca y otra
testadora al propio tiempo segun el Exhibit A de gozar de los frutos de los
terranos descritos en dicho documents; y habido consideracion de la cuantia
de dichos bienes, se decreta la distribucion sumaria de los mismos en favor
de la logataria universal Manuela Rebaca de Potot previa prestacion por
parte de la misma de una fianza en la sum de P500.00 para responder de
cualesquiera reclamaciones que se presentare contra los bienes del finado
Bernabe de la Serna de los aos desde esta fecha" (Act Esp. 499,
Testamentaria Finado Bernabe de la Serna) Upon the death of Gervasia
Rebaca on October 14, 1952, another petition for the probate of the same
will insofar as Gervasia was concerned was filed on November 6, 1952,
being Special Proceedings No. 1016-R of the same Court of First Instance
of Cebu, but for failure of the petitioner, Manuela R. Potot and her attorney,
Manuel Potot to appear, for the hearing of said petition, the case was
dismissed on March 30, 1954 Spec. Proc. No. 1016-R, In the matter of the
Probate of the Will of Gervasia Rebaca).
The Court of First Instance ordered the petition heard and declared the testament null
and void, for being executed contrary to the prohibition of joint wills in the Civil
Code (Art. 669, Civil Code of 1889 and Art. 818, Civil Code of the Philippines); but
on appeal by the testamentary heir, the Court of Appeals reversed, on the ground that
the decree of probate in 1939 was issued by a court of probate jurisdiction and
conclusive on the due execution of the testament. Further, the Court of Appeals
declared that:
... . It is true the law (Art. 669, old Civil Code; Art. 818, new Civil Code).
prohibits the making of a will jointly by two or more persons either for their
reciprocal benefit or for the benefit of a third person. However, this form of
will has long been sanctioned by use, and the same has continued to be
used; and when, as in the present case, one such joint last will and testament
has been admitted to probate by final order of a Court of competent
jurisdiction, there seems to be no alternative except to give effect to the
provisions thereof that are not contrary to law, as was done in the case
of Macrohon vs. Saavedra, 51 Phil. 267, wherein our Supreme Court gave
effect to the provisions of the joint will therein mentioned, saying,
"assuming that the joint will in question is valid."
Whence this appeal by the heirs intestate of the deceased husband, Bernabe de la
Cerna.
The appealed decision correctly held that the final decree of probate, entered in 1939
by the Court of First Instance of Cebu (when the testator, Bernabe de la Cerna, died),
has conclusive effect as to his last will and testament despite the fact that even then
the Civil Code already decreed the invalidity of joint wills, whether in favor of the
joint testators, reciprocally, or in favor of a third party (Art. 669, old Civil Code).
The error thus committed by the probate court was an error of law, that should have
been corrected by appeal, but which did not affect the jurisdiction of the probate
court, nor the conclusive effect of its final decision, however erroneous. A final
judgment rendered on a petition for the probate of a will is binding upon the whole
world (Manalo vs. Paredes, 47 Phil. 938; In re Estates of Johnson, 39 Phil. 156); and
public policy and sound practice demand that at the risk of occasional errors
judgment of courts should become final at some definite date fixed by law. Interest
rei publicae ut finis set litium (Dy Cay vs. Crossfield, 38 Phil, 521, and other cases
cited in 2 Moran, Comments on the Rules of Court (1963 Ed., p. 322).
Petitioners, as heirs and successors of the late Bernabe de la Cerna, are concluded by
the 1939 decree admitting his will to probate. The contention that being void the will
cannot be validated, overlooks that the ultimate decision on Whether an act is valid
or void rests with the courts, and here they have spoken with finality when the will
was probated in 1939. On this court, the dismissal of their action for partition was
correct.
But the Court of Appeals should have taken into account also, to avoid future
misunderstanding, that the probate decree in 1989 could only affect the share of the
deceased husband, Bernabe de la Cerna. It could not include the disposition of the
share of the wife, Gervasia Rebaca, who was then still alive, and over whose interest
in the conjugal properties the probate court acquired no jurisdiction, precisely
because her estate could not then be in issue. Be it remembered that prior to the new
Civil Code, a will could not be probated during the testator's lifetime.
It follows that the validity of the joint will, in so far as the estate of the wife was
concerned, must be, on her death, reexamined and adjudicated de novo, since a joint
will is considered a separate will of each testator. Thus regarded, the holding of the
court of First Instance of Cebu that the joint will is one prohibited by law was correct
as to the participation of the deceased Gervasia Rebaca in the properties in question,
Page 16 of 34

for the reasons extensively discussed in our decision in Bilbao vs. Bilbao, 87 Phil.
144, that explained the previous holding in Macrohon vs. Saavedra, 51 Phil. 267.
Therefore, the undivided interest of Gervasia Rebaca should pass upon her death to
her heirs intestate, and not exclusively to the testamentary heir, unless some other
valid will in her favor is shown to exist, or unless she be the only heir intestate of
said Gervasia.
It is unnecessary to emphasize that the fact that joint wills should be in common
usage could not make them valid when our Civil Codes consistently invalidated
them, because laws are only repealed by other subsequent laws, and no usage to the
contrary may prevail against their observance (Art. 5, Civ. Code of 1889; Art. 7,
Civil Code of the Philippines of 1950).
WITH THE FOREGOING MODIFICATION, the judgment of the Court of Appeals
in CA-G.R. No. 23763-R is affirmed. No Costs.
SOFIA J. NEPOMUCENO, petitioner,
vs.
THE HONORABLE COURT OF APPEALS, RUFINA GOMEZ, OSCAR
JUGO ANG, CARMELITA JUGO,respondents.

GUTIERREZ, JR., J .:
This is a petition for certiorari to set aside that portion of the decision of the
respondent Court of Appeals (now intermediate Appellate Court) dated June 3, 1982,
as amended by the resolution dated August 10, 1982, declaring as null and void the
devise in favor of the petitioner and the resolution dated December 28, 1982 denying
petitioner's motion for reconsideration.
Martin Jugo died on July 16, 1974 in Malabon, Rizal. He left a last Will and
Testament duly signed by him at the end of the Will on page three and on the left
margin of pages 1, 2 and 4 thereof in the presence of Celestina Alejandro, Myrna C.
Cortez, and Leandro Leano, who in turn, affixed their signatures below the
attestation clause and on the left margin of pages 1, 2 and 4 of the Will in the
presence of the testator and of each other and the Notary Public. The Will was
acknowledged before the Notary Public Romeo Escareal by the testator and his three
attesting witnesses.
In the said Will, the testator named and appointed herein petitioner Sofia J.
Nepomuceno as his sole and only executor of his estate. It is clearly stated in the
Will that the testator was legally married to a certain Rufina Gomez by whom he had
two legitimate children, Oscar and Carmelita, but since 1952, he had been estranged
from his lawfully wedded wife and had been living with petitioner as husband and
wife. In fact, on December 5, 1952, the testator Martin Jugo and the petitioner
herein, Sofia J. Nepomuceno were married in Victoria, Tarlac before the Justice of
the Peace. The testator devised to his forced heirs, namely, his legal wife Rufina
Gomez and his children Oscar and Carmelita his entire estate and the free portion
thereof to herein petitioner. The Will reads in part:
Art. III. That I have the following legal heirs, namely: my
aforementioned legal wife, Rufina Gomez, and our son, Oscar, and
daughter Carmelita, both surnamed Jugo, whom I declare and
admit to be legally and properly entitled to inherit from me; that
while I have been estranged from my above-named wife for so
many years, I cannot deny that I was legally married to her or that
we have been separated up to the present for reasons and
justifications known fully well by them:
Art. IV. That since 1952, 1 have been living, as man and wife with
one Sofia J. Nepomuceno, whom I declare and avow to be entitled
to my love and affection, for all the things which she has done for
me, now and in the past; that while Sofia J. Nepomuceno has with
my full knowledge and consent, did comport and represent myself
as her own husband, in truth and in fact, as well as in the eyes of
the law, I could not bind her to me in the holy bonds of matrimony
because of my aforementioned previous marriage;
On August 21, 1974, the petitioner filed a petition for the probate of the last Will and
Testament of the deceased Martin Jugo in the Court of First Instance of Rizal,
Branch XXXIV, Caloocan City and asked for the issuance to her of letters
testamentary.
On May 13, 1975, the legal wife of the testator, Rufina Gomez and her children filed
an opposition alleging inter alia that the execution of the Will was procured by undue
and improper influence on the part of the petitioner; that at the time of the execution
of the Will, the testator was already very sick and that petitioner having admitted her
living in concubinage with the testator, she is wanting in integrity and thus, letters
testamentary should not be issued to her.
On January 6, 1976, the lower court denied the probate of the Will on the ground that
as the testator admitted in his Will to cohabiting with the petitioner from December
Page 17 of 34

1952 until his death on July 16, 1974, the Will's admission to probate will be an Idle
exercise because on the face of the Will, the invalidity of its intrinsic provisions is
evident.
The petitioner appealed to the respondent-appellate court.
On June 2, 1982, the respondent court set aside the decision of the Court of First
Instance of Rizal denying the probate of the will. The respondent court declared the
Will to be valid except that the devise in favor of the petitioner is null and void
pursuant to Article 739 in relation with Article 1028 of the Civil Code of the
Philippines. The dispositive portion of the decision reads:
WHEREFORE, the decision a quo is hereby set aside, the will in
question declared valid except the devise in favor of the appellant
which is declared null and void. The properties so devised are
instead passed on in intestacy to the appellant in equal shares,
without pronouncement as to cost.
On June 15, 1982, oppositors Rufina Gomez and her children filed a "Motion for
Correction of Clerical Error" praying that the word "appellant" in the last sentence of
the dispositive portion of the decision be changed to "appellees" so as to read: "The
properties so devised are instead passed on intestacy to the appellees in equal shares,
without pronouncement as to costs." The motion was granted by the respondent court
on August 10, 1982.
On August 23, 1982, the petitioner filed a motion for reconsideration. This was
denied by the respondent court in a resolution dated December 28, 1982.
The main issue raised by the petitioner is whether or not the respondent court acted
in excess of its jurisdiction when after declaring the last Will and Testament of the
deceased Martin Jugo validly drawn, it went on to pass upon the intrinsic validity of
the testamentary provision in favor of herein petitioner.
The petitioner submits that the validity of the testamentary provision in her favor
cannot be passed upon and decided in the probate proceedings but in some other
proceedings because the only purpose of the probate of a Will is to establish
conclusively as against everyone that a Will was executed with the formalities
required by law and that the testator has the mental capacity to execute the same. The
petitioner further contends that even if the provisions of paragraph 1 of Article 739
of the Civil Code of the Philippines were applicable, the declaration of its nullity
could only be made by the proper court in a separate action brought by the legal wife
for the specific purpose of obtaining a declaration of the nullity of the testamentary
provision in the Will in favor of the person with whom the testator was allegedly
guilty of adultery or concubinage.
The respondents on the other hand contend that the fact that the last Will and
Testament itself expressly admits indubitably on its face the meretricious
relationship between the testator and the petitioner and the fact that petitioner herself
initiated the presentation of evidence on her alleged ignorance of the true civil status
of the testator, which led private respondents to present contrary evidence, merits the
application of the doctrine enunciated in Nuguid v. Felix Nuguid, et al. (17 SCRA
449) and Felix Balanay, Jr. v. Hon. Antonio Martinez, et al.(G.R. No. L- 39247, June
27, 1975). Respondents also submit that the admission of the testator of the illicit
relationship between him and the petitioner put in issue the legality of the devise. We
agree with the respondents.
The respondent court acted within its jurisdiction when after declaring the Will to be
validly drawn, it went on to pass upon the intrinsic validity of the Will and declared
the devise in favor of the petitioner null and void.
The general rule is that in probate proceedings, the court's area of inquiry is limited
to an examination and resolution of the extrinsic validity of the Will. The rule is
expressed thus:
xxx xxx xxx
... It is elementary that a probate decree finally and definitively
settles all questions concerning capacity of the testator and the
proper execution and witnessing of his last Will and testament,
irrespective of whether its provisions are valid and enforceable or
otherwise. (Fernandez v. Dimagiba,21 SCRA 428)
The petition below being for the probate of a Will, the court's area
of inquiry is limited to the extrinsic validity thereof. The testators
testamentary capacity and the compliance with the formal
requisites or solemnities prescribed by law are the only questions
presented for the resolution of the court. Any inquiry into
the intrinsic validity or efficacy of the provisions of the will or the
legality of any devise or legacy is premature.
xxx xxx xxx
True or not, the alleged sale is no ground for the dismissal of the
petition for probate. Probate is one thing; the validity of the
Page 18 of 34

testamentary provisions is another. The first decides the execution
of the document and the testamentary capacity of the testator; the
second relates to descent and distribution (Sumilang v.
Ramagosa, 21 SCRA 1369)
xxx xxx xxx
To establish conclusively as against everyone, and once for all, the
facts that a will was executed with the formalities required by law
and that the testator was in a condition to make a will, is the only
purpose of the proceedings under the new code for the probate of a
will. (Sec. 625). The judgment in such proceedings determines and
can determine nothing more. In them the court has no power to
pass upon the validity of any provisions made in the will. It can not
decide, for example, that a certain legacy is void and another one
valid. ... (Castaneda v. Alemany, 3 Phil. 426)
The rule, however, is not inflexible and absolute. Given exceptional circumstances,
the probate court is not powerless to do what the situation constrains it to do and pass
upon certain provisions of the Will.
In Nuguid v. Nuguid (17 SCRA 449) cited by the trial court, the testator instituted the
petitioner as universal heir and completely preterited her surviving forced heirs. A
will of this nature, no matter how valid it may appear extrinsically, would be null and
void. Separate or latter proceedings to determine the intrinsic validity of the
testamentary provisions would be superfluous.
Even before establishing the formal validity of the will, the Court in Balanay .Jr. v.
Martinez (64 SCRA 452) passed upon the validity of its intrinsic provisions.
Invoking "practical considerations", we stated:
The basic issue is whether the probate court erred in passing upon
the intrinsic validity of the will, before ruling on its allowance or
formal validity, and in declaring it void.
We are of the opinion that in view of certain unusual provisions of
the will, which are of dubious legality, and because of the motion
to withdraw the petition for probate (which the lower court
assumed to have been filed with the petitioner's authorization) the
trial court acted correctly in passing upon the will's intrinsic
validity even before its formal validity had been established. The
probate of a will might become an Idle ceremony if on its face it
appears to be intrinsically void. Where practical considerations
demand that the intrinsic validity of the will be passed upon, even
before it is probated, the court should meet the issue (Nuguid v.
Nuguid, 64 O.G. 1527, 17 SCRA 449. Compare with Sumilang vs.
Ramagosa L-23135, December 26, 1967, 21 SCRA 1369; Cacho v.
Udan L-19996, April 30, 1965, 13 SCRA 693).
There appears to be no more dispute at this time over the extrinsic validity of the
Will. Both parties are agreed that the Will of Martin Jugo was executed with all the
formalities required by law and that the testator had the mental capacity to execute
his Will. The petitioner states that she completely agrees with the respondent court
when in resolving the question of whether or not the probate court correctly denied
the probate of Martin Jugo's last Will and Testament, it ruled:
This being so, the will is declared validly drawn. (Page 4,
Decision, Annex A of Petition.)
On the other hand the respondents pray for the affirmance of the Court of Appeals'
decision in toto.
The only issue, therefore, is the jurisdiction of the respondent court to declare the
testamentary provision in favor of the petitioner as null and void.
We sustain the respondent court's jurisdiction. As stated in Nuguid v. Nuguid,
(supra):
We pause to reflect. If the case were to be remanded for probate of
the will, nothing will be gained. On the contrary, this litigation will
be protracted. And for aught that appears in the record, in the
record, in the event of probate or if the court rejects the will,
probability exists that the case will come up once again before us
on the same issue of the intrinsic validity or nullity of the will.
Result, waste of time, effort, expense, plus added anxiety. These
are the practical considerations that induce us to a belief that we
might as well meet head-on the issue of the validity of the
provisions of the will in question. (Section 2, Rule 1, Rules of
Court. Case, et al. v. Jugo, et al., 77 Phil. 517, 522). After all, there
exists a justiciable controversy crying for solution.
We see no useful purpose that would be served if we remand the nullified provision
to the proper court in a separate action for that purpose simply because, in the
Page 19 of 34

probate of a will, the court does not ordinarily look into the intrinsic validity of its
provisions.
Article 739 of the Civil Code provides:
The following donations shall be void:
(1) Those made between persons who were guilty of adultery or
concubinage at the time of the donation;
(2) Those made between persons found guilty of the same criminal
offense, in consideration thereof;
(3) Those made to a public officer or his wife, descendants and
ascendants, by reason of his office.
In the case referred to in No. 1, the action for declaration of nullity
may be brought by the spouse of the donor or donee; and the guilt
of the donor and donee may be proved by preponderance of
evidence in the same action.
Article 1028 of the Civil Code provides:
The prohibitions mentioned in Article 739, concerning
donations inter vivos shall apply to testamentary provisions.
In Article III of the disputed Will, executed on August 15, 1968, or almost six years
before the testator's death on July 16, 1974, Martin Jugo stated that respondent
Rufina Gomez was his legal wife from whom he had been estranged "for so many
years." He also declared that respondents Carmelita Jugo and Oscar Jugo were his
legitimate children. In Article IV, he stated that he had been living as man and wife
with the petitioner since 1952. Testator Jugo declared that the petitioner was entitled
to his love and affection. He stated that Nepomuceno represented Jugo as her own
husband but "in truth and in fact, as well as in the eyes of the law, I could not bind
her to me in the holy bonds of matrimony because of my aforementioned previous
marriage.
There is no question from the records about the fact of a prior existing marriage
when Martin Jugo executed his Will. There is also no dispute that the petitioner and
Mr. Jugo lived together in an ostensible marital relationship for 22 years until his
death.
It is also a fact that on December 2, 1952, Martin Jugo and Sofia J. Nepomuceno
contracted a marriage before the Justice of the Peace of Victoria, Tarlac. The man
was then 51 years old while the woman was 48. Nepomuceno now contends that she
acted in good faith for 22 years in the belief that she was legally married to the
testator.
The records do not sustain a finding of innocence or good faith. As argued by the
private respondents:
First. The last will and testament itself expressly admits
indubitably on its face the meretricious relationship between the
testator and petitioner, the devisee.
Second. Petitioner herself initiated the presentation of evidence on
her alleged ignorance of the true civil status of the testator, which
led private respondents to present contrary evidence.
In short, the parties themselves dueled on the intrinsic validity of
the legacy given in the will to petitioner by the deceased testator at
the start of the proceedings.
Whether or not petitioner knew that testator Martin Jugo, the man
he had lived with as man and wife, as already married, was an
important and specific issue brought by the parties before the trial
court, and passed upon by the Court of Appeals.
Instead of limiting herself to proving the extrinsic validity of the
will, it was petitioner who opted to present evidence on her alleged
good faith in marrying the testator. (Testimony of Petitioner, TSN
of August 1, 1982, pp. 56-57 and pp. 62-64).
Private respondents, naturally, presented evidence that would
refute the testimony of petitioner on the point.
Sebastian Jugo, younger brother of the deceased testator, testified
at length on the meretricious relationship of his brother and
petitioner. (TSN of August 18,1975).
Clearly, the good faith of petitioner was by option of the parties
made a decisive issue right at the inception of the case.
Page 20 of 34

Confronted by the situation, the trial court had to make a ruling on
the question.
When the court a quo held that the testator Martin Jugo and
petitioner 'were deemed guilty of adultery or concubinage', it was a
finding that petitioner was not the innocent woman she pretended
to be.
xxx xxx xxx
3. If a review of the evidence must be made nonetheless, then
private respondents respectfully offer the following analysis:
FIRST: The secrecy of the marriage of petitioner with the deceased
testator in a town in Tarlac where neither she nor the testator ever
resided. If there was nothing to hide from, why the concealment' ?
Of course, it maybe argued that the marriage of the deceased with
private respondent Rufina Gomez was likewise done in secrecy.
But it should be remembered that Rufina Gomez was already in the
family way at that time and it would seem that the parents of
Martin Jugo were not in favor of the marriage so much so that an
action in court was brought concerning the marriage. (Testimony
of Sebastian Jugo, TSN of August 18, 1975, pp. 29-30)
SECOND: Petitioner was a sweetheart of the deceased testator
when they were still both single. That would be in 1922 as Martin
Jugo married respondent Rufina Gomez on November 29, 1923
(Exh. 3). Petitioner married the testator only on December 5, 1952.
There was a space of about 30 years in between. During those 30
years, could it be believed that she did not even wonder why
Martin Jugo did not marry her nor contact her anymore after
November, 1923 - facts that should impel her to ask her groom
before she married him in secrecy, especially so when she was
already about 50 years old at the time of marriage.
THIRD: The fact that petitioner broke off from Martin Jugo in
1923 is by itself conclusive demonstration that she new that the
man she had openly lived for 22 years as man and wife was a
married man with already two children.
FOURTH: Having admitted that she knew the children of
respondent Rufina Gomez, is it possible that she would not have
asked Martin Jugo whether or not they were his illegitimate or
legitimate children and by whom? That is un-Filipino.
FIFTH: Having often gone to Pasig to the residence of the parents
of the deceased testator, is it possible that she would not have
known that the mother of private respondent Oscar Jugo and
Carmelita Jugo was respondent Rufina Gomez, considering that
the houses of the parents of Martin Jugo (where he had lived for
many years) and that of respondent Rufina Gomez were just a few
meters away?
Such pretentions of petitioner Sofia Nepomuceno are unbelievable.
They are, to say the least, inherently improbable, for they are
against the experience in common life and the ordinary instincts
and promptings of human nature that a woman would not bother at
all to ask the man she was going to marry whether or not he was
already married to another, knowing that her groom had children.
It would be a story that would strain human credulity to the limit if
petitioner did not know that Martin Jugo was already a married
man in view of the irrefutable fact that it was precisely his
marriage to respondent Rufina Gomez that led petitioner to break
off with the deceased during their younger years.
Moreover, the prohibition in Article 739 of the Civil Code is against the making of a
donation between persons who are living in adultery or concubinage. It is
the donation which becomes void. The giver cannot give even assuming that the
recipient may receive. The very wordings of the Will invalidate the legacy because
the testator admitted he was disposing the properties to a person with whom he had
been living in concubinage.
WHEREFORE, the petition is DISMISSED for lack of merit. The decision of the
Court of Appeals, now Intermediate Appellate Court, is AFFIRMED. No costs.
SECOND DIVISION
[G.R. No. L-5405. January 31, 1956.]
ERNESTO M. GUEVARA, Petitioner, vs. ROSARIO GUEVARA and PEDRO
C. QUINTO, Respondents.

D E C I S I O N
CONCEPCION, J .:
Page 21 of 34

This is a petition for review by certiorari of a decision of the Court of Appeals. The
pertinent facts are set forth in said decision, from which we
quote:chanroblesvirtuallawlibrary
This case being the sequel to, and aftermath of, a previous litigation between the
parties that reached the Supreme Court, through the former Court of Appeals, it
becomes necessary to restate the essential antecedent facts to view the issues in
proper perspective. For this purpose, it is important to recall that on August 26, 1931,
Victorino L. Guevara, a resident of Bayambang, Pangasinan, executed a will (Exhibit
A), distributing assorted movables and a residential lot among his children, Rosario
and Ernesto Guevara, and his stepchildren, Vivencio, Eduvigis, Dionista, Candida,
and Pio Guevara. To his second wife Augustia Posadas, the testator bequeathed, in
addition to various movables, a portion of 25 hectares to be taken out of a 259 odd
hectare parcel outlined in Plan Psu-68618, plus another five (5) hectares in
settlement of her widows usufruct. The balance of the 259 odd hectares he
distributed as follows:chanroblesvirtuallawlibrary
100 hectares reserved for disposal during the testators lifetime and for payment of
his debts and family expenses;
108.0854 hectares to his legitimate son Ernesto Guevara, including therein 43.2342
hectares by way of mejora;
21.6171 hectares to mi hija natural reconocida Rosario Guevara.
Ernesto Guevara was appointed executor without bond.
On July 12, 1933, the same testator executed a deed of sale in favor of Ernesto
Guevara, conveying to the latter the southern half of the 259-hectare lot heretofore
mentioned, and expressly recognized Ernesto Guevara as owner of the northern half.
Prior to this sale, on November 1, 1932, Victorino and his son Ernesto had jointly
applied for registration of the big parcel (case No. 15174), but in view of the sale
from the former to the latter, the decree was issued in the name of Ernesto Guevara
exclusively and for the whole tract, a certificate of title (No. 51691 of Pangasinan)
being issued in his sole name on October 12, 1933.
Fifteen days previously, i.e., on September 27, 1933, Victorino Guevara died, but his
will was not filed for probate. About four years later, Rosario Guevara, claiming to
be a recognized natural child of the deceased Victorino, and on the assumption that
he had died intestate, brought suit against Ernesto Guevara to recover 423,492 square
meters of the tract covered by certificate of title No. 51691 as the portion that should
correspond to her (Rosario) by way of legitime.
The case reached the former Court of Appeals in due course and was decided in
Rosario Guevaras favor (Exhibit E); chan roblesvirtualawlibrarybut upon certiorari,
the Supreme Court modified the judgment in December, 1943, as follows (Exhibit
F);
Wherefore, that part of the decision of the Court of Appeals which declares in effect
that notwithstanding exhibit 2 and the issuance of original certificate of title No.
51691 in the name of Ernesto M. Guevara, one-half of the land described in said
certificate of title belongs to the estate of Victorino L. Guevara and the other half to
Ernesto M. Guevara in consideration of the latters assumption of the obligation to
pay all the debts of the deceased, is hereby affirmed; chan roblesvirtualawlibrarybut
the judgment of said court insofar as it awarded any relief to the Respondent Rosario
Guevara in this action is hereby reversed and set aside, and the parties are hereby
ordered to present the document Exhibit A to the proper court for probate in
accordance with law, without prejudice to such action as the provincial fiscal of
Pangasinan may take against the responsible party or parties under section 4 of Rule
76. After the said document is approved and allowed by the court as the last will and
testament of the deceased Victorino L. Guevara, the heirs and legatees herein named
may take such action, judicial or extrajudicial, as may be necessary to partition the
estate of the testator, taking into consideration the pronouncements made in part II of
this opinion. No finding as to costs in any of the three instances. (Appellants Brief,
pp. 13-14.)
Claiming to act pursuant to the foregoing decision, Rosario Guevara commenced on
October 5, 1945, special proceedings No. 2646 in the Court of First Instance of
Pangasinan for the probate of the will of Victorino Guevara. In paragraph 10 of the
petition, it was alleged:chanroblesvirtuallawlibrary
10. Que dicho testamento, o sus disposiciones testamentarias, ha sido de jure
revocado, o revocados, en cuanto a la parcela de terreno de 259 hectareas descrita en
dicho testamento, por haber el testador enajenado o dispuesto intervivos de la misma
en la forma mencionada en las tres decisiones supra-mencionadas; chan
roblesvirtualawlibraryy que la solicitante pide la legalizacion de dicho testamento tan
solo para los efectos del reconocimiento de hija natural hecha en dicho testamento a
favor de la demandante y en obediencia al mandato de la Corte Suprema en su
decision supra. (Record on Appeal, p. 5.)
Notice of the petition having been duly published pursuant to Rule of Court 77,
section 4, Ernesto Guevara appeared and opposed the probate. Pedro L. Quinto,
counsel for Rosario in the former litigation, was allowed to intervene in view of his
duly recorded attorneys lien.
On January 31, 1946, Ernesto Guevara, through counsel, filed a motion to dismiss
the petition on the grounds that (a) the petition itself alleged that the will was
revoked; chan roblesvirtualawlibrary(b) that whatever right to probate the parties
may have has already prescribed (Record on Appeal, p. 14); chan
roblesvirtualawlibraryand (c) that the purpose of the probate was solely to
have Petitioner Rosario declared an acknowledged natural child of the deceased.
By order of December 9, 1946, Judge Sotero Rodas denied the motion to
dismiss; chan roblesvirtualawlibrarybut upon motion of reconsideration, Judge
Maalac of the same court, on June 23, 1937, reconsidered and set aside the previous
Page 22 of 34

resolution and ordered the petition dismissed on the ground that Rosario Guevaras
petition did not ask for the probate in toto of the will, contrary to the order of the
Supreme Court; chan roblesvirtualawlibrarythat her right to petition for the probate
of the testament of Victorino L. Guevara had prescribed; chan
roblesvirtualawlibraryand that her action for judicial declaration of acknowledgment
had likewise prescribed.
An amended petition for the probate of the will in toto and another petition to
reconsider the previous order were subsequently denied; chan
roblesvirtualawlibrarythe former on the ground that there was a radical change of
theory from that embodied in the original petition, and the second for the same
reasons stated in the order of June 23, 1947. Rosario L. Guevara and Pedro L. Quinto
thereupon brought the case on appeal to this Court, assigning no less than twenty
(20) alleged errors committed by the court below. (Guevara vs. Guevara, C.A. G.
R. No. 5416-R, promulgated December 26, 1951; chan roblesvirtualawlibrarysee
Appendix to brief for the Petitioner-Appellant, pp. 1-6.)
The dispositive part of the decision of the Court of Appeals reads as
follows:chanroblesvirtuallawlibrary
The order of dismissal of the petition for probate is reversed and the court of origin
ordered to reinstate the petition, and to hear and decide whether the will of Victorino
Guevara, deceased, should be allowed to probate. Costs against Appellees in both
instances. (Ibid.)
In his appeal therefrom, Petitioner Ernesto M. Guevara raises the following
questions, to wit:chanroblesvirtuallawlibrary (a) Did Respondents herein duly perfect
their appeal from the decision of the Court of First Instance of Pangasinan? (b) Did
the Court of Appeals have jurisdiction to entertain said appeal? (c) Is the petition for
probate of the alleged will of the deceased Victorino L. Guevara barred by the statute
of limitations?
(1) With reference to the first question, Petitioner has submitted the following
statement 1 of the steps taken since June 23, 1947, date of the resolution of Judge
Maalac, dismissing the petition for probate of the last will and testament of
Victoriano L. Guevara:chanroblesvirtuallawlibrary
June 23, 1947
Date of Resolution appealed from.
July 14, 1947
Date of Joint Petition for Reconsideration filed by Appellants.
July 25, 1947
Date of Amended petition for probate of will.
July 25, 1947
Motion for admission of Amended Petition.
August 2, 1947
Appellants motion to postpone hearing on petition for reconsideration and motion
for admission of Amended Petition.
August 10, 1947
Appellants urgent motion for continuance of hearing on joint petition for
Reconsideration as well as Motion to Admit Amended Petition.
August 25, 1947
Motion for extension of time to file memorandum.
September 1, 1947
Memorandum for Appellants submitted.
October 7, 1947
Memorandum for Appellee submitted.
October 14, 1947
Appellants petition for ten (10) days to file reply memorandum.
November 1, 1947
Appellants petition to file reply memorandum on or before November 9, 1947.
November 8, 1947
Appellants petition for extension to file reply memorandum.
November 18, 1947
Verified reply of Appellant Rosario Guevara.
November 24, 1947
Reply memorandum of Pedro C. Quinto filed.
January 12, 1948
Court denies both petitions of July 14 and 25, 1947.
January 24, 1948
Notice of appeal to Supreme Court and petition for thirty (30) days extension
by AppellantRosario Guevara.
January 29, 1948
Order granting petition for extension.
Page 23 of 34

February 1, 1948
Another notice of appeal to Supreme Court and motion for thirty (30) days extension
byAppellant Rosario Guevara.
February 28, 1948
Appellants ex-parte petition for further extension.
March 6, 1948
Original joint Record on Appeal filed. (This was so defective and incomplete it
consisted of mere disjointed sheets of paper intercalated with one another and was a
mere token record on appeal.)
March 8, 1948
Another joint petition for reconsideration of Appellants.
March 11, 1948
Appellees objection to record on appeal.
March 17, 1948
Verified reply of Appellants to objection.
March 18, 1948
Appellees objection to joint petition for reconsideration.
June 19, 1948
Appellants memorandum in support of the joint petition for reconsideration.
July 23, 1948
Order of denial of Joint Petition and disapproving original record on appeal as
incomplete and giving Appellants within 10 days from notice.
July 26, 1948
Amended Notice of Appeal to the Court of Appeals instead of to the Supreme Court.
July 28 and 29, 1948
Appellants received copy of order of July 23, 1948.
August 1, 1948
Petition for five (5) days extension to file amended Record on Appeal filed
by Appellant Pedro C. Quinto.
August 10, 1948
Appellants Joint Petition for last extension of two (2) days.
August 10, 1948
Filing of amended joint record on appeal. (This is also again so defective and
incomplete as to constitute another mere token record on appeal as required by the
Rules.)
August 24, 1948
Appellants petition for ten (10) days period to reply to objection, if any was to be
filed.
August 27, 1948
Appellees objection to amended record on appeal.
September 8, 1948
Appellants reply to objection.
October 20, 1948
Court order sustaining objection and gives Appellants fifteen (15) days from notice
to redraft record on appeal.
November 3, 1948
Appellants joint petition to reconsider order of disapproval of Amended Record on
Appeal.
November 3, 1948
Appellants file re-amended joint record on appeal. (This again disregarded the orders
of the court regarding the contents of the record on appeal.).
November 22, 1948
Appellee objected to approval of re-amended joint record on appeal and prayed that
order appealed from be declared final.
March 22, 1949
Court sustains Appellees objection to record on appeal denying petition for
reconsideration and Appellants given fifteen (15) days from notice to satisfy
requirements of courts previous order.
April 8, 1949
Appellants file in Supreme Court petition for certiorari and mandamus attacking
order of June 23, 1947.
April 11, 1949
Appellant Quintos petition for fifteen (15) days extension to file Re-amended
Record on Appeal.
Page 24 of 34

April 12, 1949
Supreme Court denies petition off-hand.
April 16, 1949
Appellant Rosario Guevaras motion for fifteen (15) days extension for the same
purpose.
April 21, 1949
Court granted extension prayed for to expire May 1, 1948.
April 21, 1949
Second Re-Amended Record on Appeal filed.
June 11, 1949
Appellees opposition to Second Re-Amended Record on Appeal.
June 29, 1949
Appellants joint notice of hearing on Second Re-Amended Record on Appeal for
July 12, 1949.
July 10, 1949
Appellants joint reply to opposition.
July 12, 1949
Action on record on appeal deferred on petition of Atty. Quinto.
September 3, 1949
Appellant Quintos notice of hearing on Second Re-Amended Record on Appeal for
September 28, 1949.
September 28, 1949
Order of court approving same.
December 8, 1949
Clerk of lower court sends records to appellate court.
December 10, 1949
Appellant Quintos motion ex-parte to have records sent up to appellate court.
(Petitioner-Appellants Brief, pp. 41-47.)
Based upon the foregoing, Oppositor and Appellee Ernesto M. Guevara filed, with
the Court of Appeals, a motion praying that the appeal be
dismissed:chanroblesvirtuallawlibrary
(a) Because due to the Appellants many and repeated dilatory tactics, the
prosecution of their appeal has been unduly and unreasonably delayed for a period
which should strike anyone as totally without justification. The resolution appealed
from was dictated by the lower court on June 23, 1947, so that a period of over two
(2) years and nine (9) months until the date of this writing has elapsed, thus
establishing a record-holding delay which should not be sanctioned by the Courts as
prejudicial to the administration of justice.
(b) Because Appellants, in violation of Rule 48, section 3, did not diligently
prosecute their appeal by failing to have the record sent up to this Honorable Court
within thirty (30) days from the time their Second Re-amended Record on Appeal
was approved on September 28, 1949; chan roblesvirtualawlibraryand it was only so
transmitted on December 8, 1949, that is after the lapse of two (2) months and ten
(10) days.
(c) Because, at any rate, the first Amended Joint Record on Appeal was filed
beyond the extension granted by the Court and, consequently, the Appellants right
to appeal has lapsed. (Exhibit A, pp. 1-2).
The Court of Appeals denied said motion to dismiss for the following
reasons:chanroblesvirtuallawlibrary
A preliminary question was posed by the Appellee who prayed for the dismissal of
the appeal on the ground that Petitioners-Appellants had unreasonably delayed the
perfection of the appeal, as the Second Re-amended Joint Record on Appeal was not
certified to this Court until December, 1949. After considering the voluminous
record, and the arguments of both parties, we are of the opinion that both parties
have contributed to the delay with lengthy memoranda, and repeated motions and
objections. Moreover, the points in question are important enough to deserve
adequate consideration upon the merits. Wherefore, the motion to dismiss the appeal
should be and is hereby, overruled and denied. (Appendix to Brief for
the Petitioner-Appellant, pp. 6- 7.)
It is urged by Petitioner herein that Respondents appeal from the decision of the
Court of First Instance of Pangasinan had not been duly perfected
because:chanroblesvirtuallawlibrary (a) the original of the record on appeal did not
comply with the Rules of Court; chan roblesvirtualawlibrary(b) the record on appeal
was filed after the lapse of the reglementary period; chan roblesvirtualawlibrary(c)
there has been an unprecedented delay in the filing of a satisfactory record on
appeal; chan roblesvirtualawlibraryand (d) the appeal should be deemed abandoned
for violation of Rule 48, section 3, of the Rules of Court.
The first ground is predicated upon the fact that, instead of transcribing the motions,
petitions, orders and resolutions incorporated in the original record on
appeal, Respondents herein merely attached to the original copy of said record on
appeal, filed with the Court of First Instance of Pangasinan, their own copies of said
motions, petitions, orders and resolutions. Accordingly, the copy of said record on
Page 25 of 34

appeal furnished to Petitioner herein did not contain or enclose the aforementioned
parts of the record. It appears, however, that the Respondentswere given several
extensions of time within which to comply with the pertinent provisions of the Rules
of Court and that Respondents eventually did so. There being no question about the
authority of the court of first instance to grant said extensions of time, it is clear that
the first ground, relied upon by Petitioner herein, is untenable.
In support of the second ground, it is alleged:chanroblesvirtuallawlibrary (a) that the
original record on appeal was filed by Pedro C. Quinto only, and does not inure to
the benefit of Rosario Guevara; chan roblesvirtualawlibraryand (b)
thatRespondents had lost their right to appeal by the lapse of the reglementary
period. As regards the first proposition, Petitioner asserts that Respondent Pedro C.
Quinto had withdrawn his appearance as counsel for Respondent Rosario
Guevara; chan roblesvirtualawlibrarythat Quinto had, thereafter, intervened in the
case in his own behalf, in order to enforce his attorneys lien, as former counsel for
Rosario Guevara; chan roblesvirtualawlibrarythat, consequently, the original record
on appeal and the petitions for extension of time to file an amended record on appeal,
filed by Pedro C. Quinto, were good only insofar as he is concerned, and cannot
profit Rosario Guevara, she having ceased to be his client long before the filing of
said original record on appeal and petitions for extension of time; chan
roblesvirtualawlibrarythat this interest in the case arises from his rights as former
attorney forRespondent Rosario Guevara, and, as such, is subordinate to, and
dependent upon, the interest therein of said Rosario Guevara and the success of her
claim therein; chan roblesvirtualawlibraryand that, her appeal not having been duly
perfected, his appeal must be deemed to have no legal effect. There is no merit in
this pretense, for it appears, at the foot of said record on appeal, that Pedro C. Quinto
had filed the same, for himself as Appellant and in behalf of Rosario Guevara, who
authorized him to perfect the appeal for both Appellants, and that similar statements
were made in the body and at the foot of said petitions for extension of time. It is
clear, therefore, that the aforementioned record on appeal and motions should be
deemed submitted, also, byRespondent Rosario Guevara. The position then held by
Pedro C. Quinto, as special prosecutor in the office of the Solicitor General, did not
nullify his aforesaid acts on behalf of Rosario Guevara. Besides, said acts would
seem to have been performed by him, more as attorney-in- fact than as counsel for
Rosario Guevara, and this merely in connection with the perfection of her appeal.
We do not find therein anything objectionable, either legally or morally, in the light
of the circumstances surrounding the case.
The second proposition is based upon the following
reasons:chanroblesvirtuallawlibrary
(a) The aforementioned record on appeal and motions for extension of time filed by
Quinto on behalf of Rosario Guevara did not inure to her benefit, for which reason
the reglementary period to appeal had expired before the perfection of her appeal.
For the reasons already adverted to, this argument is clearly untenable.
(b) The petition for reconsideration filed by Respondents on July 14, 1947, did not
suspend the running of the period to perfect the record on appeal, because said
petition did not comply with the provisions of Rule 37, section 1, of the Rules of
Court, reading as follows:chanroblesvirtuallawlibrary
Within thirty days after notice of the judgment in an action, the aggrieved party may
move the trial court to set aside the judgment end grant a new trial for one or more of
the following causes materially affecting the substantial rights of said
party:chanroblesvirtuallawlibrary
(a) Fraud, accident, mistake or excusable negligence which ordinary prudence could
not have guarded against and by reason of which such aggrieved party has probably
been impaired in his rights;
(b) Newly discovered evidence, which he could not, with reasonable diligence, have
discovered, and produced at the trial, and which if presented would probably alter the
result;
(c) Because excessive damages have been awarded, or the evidence was insufficient
to justify the decision, or it is against the law.
Said petition for reconsideration appears, however, to be predicated, in effect, upon
the ground that the evidence is insufficient to justify the decision of the court of first
instance, and that said decision is contrary to law. It partakes, therefore, of the nature
of a motion for new trial, stating specifically the reasons in support thereof, and,
hence, it suspended the period to appeal until the determination of said motion.
Relative to the alleged unprecedented delay in the filing of a satisfactory record on
appeal, we agree with the finding of the Court of Appeals to the effect that the delay
was due to the acts of the Respondents, as well as of the Petitioner herein, for both
had asked several postponements and extensions of time, filed memoranda and reply
memoranda, and raised or provoked a number of other issues or incidents which
necessarily delayed the perfection of the appeal. Obviously, Petitioner should not be
allowed to profit by said delay, to which he had actively contributed. 1
Lastly, Petitioner maintains that, although the record on appeal had been approved
on September 28, 1949, it was not forwarded to the Court of Appeals until December
8, 1949. Section 3 of Rule 48 of the Rules of Court
provides:chanroblesvirtuallawlibrary
If the record on appeal is not received by the Court of Appeals within thirty days
after the approval thereof, the Appellee may, upon notice to the Appellant, move the
court to grant an order directing the clerk of the lower court forthwith to transmit
such record on appeal or to declare the same abandoned for failure to prosecute.
Considering that Respondents herein were not notified of the approval of the record
on appeal until December 8, 1949, on which date the record on appeal was
forwarded to the Court of Appeals, and that the aforementioned provision of the
Page 26 of 34

Rules of Court does impose upon said court the mandatory duty to declare the appeal
abandoned for failure to prosecute, we believe that no error was committed in giving
due course to the appeal and that the same has been duly perfected.
(2) Did the Court of Appeals have jurisdiction to try the case, on appeal from the
decision of the court of first instance? Petitioner maintains the negative, upon the
ground that the appeal involved only questions of law. This is not correct, for the
very motion for reconsideration adverted to above, indicated that the appeal raised
some issues of fact, such as, for instance, whether or not the will in question was in
the possession of Respondent Rosario Guevara and whether Respondent Quinto had
been authorized by her to perfect the appeal on her behalf. At any rate, the case is
now before us and, upon examination of the record and consideration of all the issues
therein raised, we are of the opinion that, had the appeal been forwarded directly to
this Court, we would have disposed of it in the manner set forth in the decision of the
Court of Appeals, the review of which is sought by herein Appellant.
(3) The last question for determination in this case is whether or not the petition for
probate of the will of Victorino L. Guevara is barred by the statute of limitations,
considering that the testator died on September 27, 1933, and that the petition for
probate of said will was filed twelve (12) years later, or, to be exact, on October 5,
1945. The Court of Appeals resolved the question in the negative, upon the following
grounds:chanroblesvirtuallawlibrary
We are of the opinion that the Court below was in error when it declared that the
petition for probate of the will of Victorino Guevara was barred by prescription. The
provision of Article 756 of the old Civil Code (1042 of the New) and of Rule 76 of
the Rules of Court, reiterating those of the old Code of Civil Procedure (Act 190),
point out that the presentation of a decedents will to the competent court has always
been deemed by our law as more of a duty than a right, and the neglect of such
obligation carries with it the corresponding penalty and it is inconsistent with that
policy that the court should refuse to admit wills to probate, without inquiry into
their validity. The authority given to testators to dispose freely of a portion of their
estate would be imperfectly safeguarded, unless adequate measures were provided by
the state to assure that the wishes of the deceased would be carried out. Because the
decedent may no longer act to have his testamentary dispositions duly executed, the
state authority must take over the opposite vigilance and supervision, so that free
testamentary disposition does not remain a delusion and a dream. This was expressly
recognized by the Supreme Court in its previous decision, G. R. No. 48840 (Exhibit
E) when it said:chanroblesvirtuallawlibrary
cralaw We hold that under section 1 of Rule 74, in relation to Rule 76, if the
decedent left a will and no debts and the heirs and legatees desire to make an
extrajudicial partition of the estate, they must first present that will to the court for
probate and divide the estate in accordance with the will. They may not disregard the
provisions of the will unless those provisions are contrary to law. Neither may they
do away with the presentation of the will to the court for probate, because such
suppression of the will is contrary to law and public policy. The law enjoins the
probate of the will and public policy requires it, because unless the will is probated
and notice thereof given to the whole world, the right of a person to dispose of his
property by will may be rendered nugatory, as is attempted to be done in the instant
case. Absent legatees and devisees, or such of them as may have no knowledge of
the will, could be cheated of their inheritance thru the collusion of some of the heirs
who might agree to the partition of the estate among themselves to the exclusion of
others. (Italics supplied)
In holding the statute of limitations applicable to the probate of wills, the court
below failed to notice that its doctrine was destructive of the right of testamentary
disposition and violative of the owners right to control his property within the legal
limits. The appealed order in fact leaves wills at the mercy and whim of custodians
and heirs interested in their suppression. The lower court would in effect abdicate the
tutelary power that passed to the Republic from the former sovereigns, that potestad
suprema que en mi reside para velar por el puntual cumplimiento de las ultimas
voluntades, asserted as one of the royal prerogatives in the Real Cedula of March
18, 1776.
It is not without purpose that Rule of Court 77 prescribes that any 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. Taken from the Code of Procedure of
California, this provision has been interpreted as meaning that the statute of
limitations has no application to probate of wills. In the case of In re Humes Estate,
179 Calif. 338, 176 Pac. 681, the California Supreme Court ruled
that:chanroblesvirtuallawlibrary
The chapter of the Code relating to the probate of wills does not provide for
opposition to such probate on the ground of the bar of the statute of limitations, but,
in effect, excludes it from the category of grounds allowed as a basis for such
opposition. Section 1299 declares that any person interested in the estate may at any
time after the death of the testator, petition the court having jurisdiction to have the
will proved. This implies that there is no arbitrary time limit.
As additional reasons, the same Court stated:chanroblesvirtuallawlibrary
cralaw Section 1317 declares:chanroblesvirtuallawlibrary If the court is satisfied,
upon the proof taken or from the facts found by the jury that the will was duly
executed and that the will testator at the time of its execution was of sound and
disposing mind and not acting under duress menace fraud, or undue influence, a
certificate of the proof and the facts found, signed by the judge and attested by the
seal of the court, must be attached to the will.
This excludes the bar of the statute of limitation from consideration as one of the
matters which may be shown in opposition to the probate. This is further emphasized
by section 1341, which, in substance, declares that, if upon the verdict of the jury the
facts mentioned in section 1317 as aforesaid appear to be established, the court
Page 27 of 34

must admit the will to probate. Section 1314 thus makes it imperative that the court
shall admit the will to probate if the execution is proven and the grounds of
opposition authorized by section 1312 are not established. This clearly implies that
no grounds of opposition other than those enumerated in section 1312 may be set up,
and it leaves no place for the application of the statute of limitations.
It is further to be observed that, notwithstanding the positive and comprehensive
language of sections 343 and 369, if taken literally, there can be no doubt that they
cannot apply to all special proceedings of a civil nature. Proceedings for a change of
name, or in arbitration, or for voluntary dissolution of a corporation, or for
guardianship, or for a married woman to become a sole trader, are all within the
definition of the phrase, and each is enumerated, classed, and defined as such
proceeding by the Code. If the statute of limitations applied, it would begin to run
against such proceedings as soon as the right to institute them accrued. Yet from the
very nature of these proceedings it is obvious that neither of them could be subject to
such limitation.
This construction of these Code provisions is confirmed by the long-continued and
uniform practice and the universal understanding of the bench and bar of the state on
the subject.
x x x x x x x x x
Action to quiet title frequently involve wills of persons who have died many years
before the action was begun. The section contemplates that such a will, although not
yet probated, may be construed in the action and may be afterwards probated, and it
clearly shows that the Legislature did not understand that the right to probate such
will would be barred if the testator had died more than four years before the petition
for probate was filed.
This uniform practice and understanding of the bench and bar, and of the legislative
department of the state also, is a strong argument to the effect that the statute of
limitations does not apply to such proceedings. The authorities on the effect of such
long acquiescence are numerous.
The Statute of Limitations upon which the court below has relied, sections 38 to 50
of the old Code of Civil Procedure, Act 190, undertakes to fix limits for the filing of
civil actions, but none for special proceedings of which probate is admittedly one.
The distinction is not purely verbal, but based on differences that make the limitation
to actions inapplicable to special proceedings. In this regard, the Supreme Court
of New York has adequately remarked (In re Canfields Will, 300 NYS
502):chanroblesvirtuallawlibrary
A Respondent in a private proceeding owes no legal duty or obligation to the
proponent as such, wherefore it is impossible for him to violate such non-existent
obligation. Furthermore such a proceeding is not instituted for the vindication of any
personal right to the proponent. The subject-matter is therefore wholly absent which
could give rise to any cause of action against any Respondent therein.
The primary purpose of the proceeding is not to establish the existence of the right
of any living person, but to determine whether or not the decedent has performed the
acts specified by the pertinent statutes which are the essential prerequisites to
personal direction of the mode of devolution of his property on death. There is no
legal but merely a moral duty resting upon a proponent to attempt to validate the
wishes of the departed, and he may and frequently does receive no personal benefit
from the performance of the act.
One of the most fundamental conceptions of probate law, is that it is the duty of the
court to effectuate, in so far as may be compatible with the public interest, the
devolutionary wishes of a deceased person (Matter of Watsons Will, 262 N.Y. 284,
294, 186 N.E. 787; chan roblesvirtualawlibraryMatter of Marrimans Estate, 124
Misc. 320, 325, 208 N.Y.S. 672; chan roblesvirtualawlibraryFoley, S. affirmed 217
App. Div. 733, 216 N.Y.S. 842; chan roblesvirtualawlibraryMatter of Lensmans
Estate, 137 Misc. 77, 78, 243 N.Y.S. 126, Henderson, S., Matter of Drakes Estate,
160 Misc. 587, 598, 290 N.Y.S. 581). To that end, the court is, in effect, an
additional party to every litigation affecting the disposal of the assets of the
deceased. Matter of Van Valkenburghs Estate, 164 Misc. 295, 296, 298 N.Y.S. 219.
A determination, therefore, that the mere non-action of a person upon whom no legal
duty rested in this regard, could have the effect of subverting the wishes of one who
was no longer able to protect his own unquestionable rights, would strike at the very
foundation of all conceptions of justice as administered in probate courts.
These decisions are of high persuasive value (Cu vs. Republic, G. R. L-3018, July
18, 1951); chan roblesvirtualawlibrarythey represent the trend of authority (57 Am.
Jur. 585), and enable us to conclude that reason and precedent reject the applicability
of the Statute of Limitations to probate proceedings, because these are not
exclusively established in the interest of the surviving heirs, but primarily for the
protection of the testators expressed wishes, that are entitled to respect as an effect
of his ownership and right of disposition. If the probate of validly executed wills is
required by public policy, as declared by the Supreme Court in the previous case,
G.R. 48840 (Exhibit E), the state could not have intended the statute of limitations to
defeat that policy.
It is true, as ruled by the trial court, that the rights of parties should not be left
hanging in uncertainty for periods of time far in excess of the maximum period of ten
years allowed by law; chan roblesvirtualawlibrarybut the obvious remedy is for the
other interested persons to petition for the production of the will and for its probate,
or to inflict upon the guilty party the penalties prescribed by Rule 76 or declare the
unworthiness of the heir under the Civil Code for concealing or suppressing the
testament; chan roblesvirtualawlibrarybut not to dismiss the petition for probate,
however belatedly submitted, and thereby refuse sanction to testamentary
dispositions executed with all the formalities prescribed by law, incidentally
Page 28 of 34

prejudicing also those testamentary heirs who do not happen to be successors ab
intestato. That in this particular case the appealed rule may not work injustice would
not excuse its adoption as a general norm applicable to all cases.
It is likewise reasonable to assume that if the Supreme Court had considered the
ten-year limitation applicable to probate proceedings, it would not have ordered the
parties on December 29, 1943 to present the document Exhibit A to the proper court
for probate in accordance with law, because the ten years from the death of the
testator expired in September of that same year, two months before the decision. It is
safe to assume that the high Court would not order a useless step. The reasoning that
the phrase in accordance with law was a qualification signifying if still legally
possible, appears to be far-fetched and unjustified. The plain import of the words
employed by the high Court is that the probate should follow the procedure provided
for the purpose.
x x x x x x x x x
The other reasons advanced by the court a quo in support of its order dismissing the
petition are also untenable. The allegation contained in paragraph 10 of the original
petition, that the will, or its testamentary dispositions, had been de jure revoked in
so far as the parcel of 259 hectares described in said will is concerned, does not
justify the finding that the probate would be pointless. What is alleged is a partial
revocation, only as to the parcel of land affected; chan roblesvirtualawlibrarybut as
previously shown, the will disposed of other property besides that one. And even
granting that the next allegation to the effect that Plaintiff sought to probate only for
the purposes of her acknowledgment as natural child in said will, constitutes an
averment that the will had been fully revoked, the same would at the most constitute
a conclusion or inference that the lower court was not bound to admit. Because
the Appellant claimed or believed that the revocation of the will as to the large parcel
of land, constituted a total revocation of the testament is no reason why the court
should concur in the same belief or conclusion, especially when the will itself,
appended to the petition, showed that there were other properties and other heirs or
legatees, and the trial court had before it the decision of the Supreme Court ordering
the filing of the will for its probate because, as stated in its decision, such a step was
enjoined by law and public policy. Moreover, the defect, if any, incurred in failing to
ask for the probate in toto of the will, was subsequently cured and corrected in the
amended petition, where not only the objectionable statements were eliminated, but
others added indicating the existence of a partible estate.
Assuming that the original petition violated the order of the Supreme Court in so far
as it did not ask for the allowance of the entire will, the court below erred in
dismissing the petition, for it thereby sanctioned further disobedience to the order of
the superior court. Once again, it must be repeated that the order of dismissal failed
to take into account that the case involved not only the interests of Rosario Guevara,
and those of the Appellee Ernesto Guevara and the other legatees, but specially the
express desires of the testator; chan roblesvirtualawlibraryand that the protection and
defense of the latter developed upon the court itself, since no one else made any
move to enforce them.
Even if the other heirs had failed to show interest in the case (a fact not properly
inferable from their non-intervention in the case, because the order of publication of
the petition only called for those interested to appear to contest the allowance and
not to support it) (Rec. on App., p. 7), and even if the other heirs had already
received their shares, the order refusing the probate remains indefensible. If the other
heirs were not interested, there remained the wishes of the testator to be supported
and protected, if validly expressed. If the heirs had distributed the estate, the
distribution was illegal and improper unless the will be first probated. The Supreme
Court so ruled in its previous decision (G. R. 48840) heretofore quoted.
Even if the decedent left no debts and nobody raises any question as to the
authenticity and due execution of the will, none of the heirs may sue for the partition
of the estate in accordance with that will without first securing its allowance or
probate by the court:chanroblesvirtuallawlibrary first, because the law expressly
provides that no will shall pass either real or personal estate unless it is proved and
allowed in the proper court; chan roblesvirtualawlibraryand, second, because the
probate of a will, which is a proceeding in rem, cannot be dispensed with and
substituted by any other proceeding, judicial or extrajudicial, without offending
against public policy designed to effectuate the testators right to dispose of his
property by will in accordance with law and to protect the rights of the heirs and
legatees under the will thru the means provided by law, among which are the
publication and the personal notices to each and all of said heirs and legatees. Nor
may the court approve and allow the will presented in evidence in such an action for
partition, which is one in personam, any more than it could decree the registration
under the Torrens system of the land involved in an ordinary action for revindicacion
or partition.
From whatever angle the case is viewed, a hearing on the allowance of the will is
unavoidable. The persistent, albeit obnoxious, attempts of Rosario Guevara to
sidetrack the will are not remedied by dismissing the petition for probate of will, and
allowing Ernesto to retain a greater interest than that intended by the testator.
(Appendix to brief for thePetitioner-Appellant, pp. 7-15, 17-20.)
We are fully in accord with these findings which we adopt as ours.
In view of the foregoing, the decision appealed from is hereby affirmed, with the
costs of this instance against the Petitioner.
Padilla, Reyes, A., Jugo, Bautista Angelo and Labrador, J J ., concur.


Page 29 of 34



G.R. No. 168156 December 6, 2006
HEIRS OF ROSENDO LASAM, Represented by Rogelio Lasam and Atty.
Edward P. Llonillo, petitioners,
vs.
VICENTA UMENGAN, respondent.
Before the Court is the petition for review on certiorari filed by the Heirs of
Rosendo Lasam, represented by Rogelio M. Lasam and Atty. Edward P. Llonillo,
seeking the reversal of the Decision
1
dated February 16, 2005 of the Court of
Appeals (CA) in CA-G.R. SP No. 80032. The assailed decision reversed and set
aside the decision of the Regional Trial Court (RTC) of Tuguegarao City, Cagayan
and dismissed, for lack of merit, the complaint for unlawful detainer file by the said
heirs against respondent Vicenta Umengan.
The RTC decision affirmed that of the Municipal Trial Court in Cities (MTCC) of
the same city, Branch III, which had rendered judgment in favor of the heirs of
Rosendo Lasam and directed the ejectment of respondent Vicenta Umengan from the
lot subject of litigation.
The present petition likewise seeks the reversal of the CA Resolution dated May 17,
2005 denying the motion for reconsideration filed by the heirs of Rosendo Lasam.
As culled from the records, the backdrop of the present case is as follows
The lot subject of the unlawful detainer case is situated in Tuguegarao City,
Cagayan. It is the eastern half portion of Lot No. 5427 and Lot No. 990. The first lot,
Lot No. 5427 containing an area of 1,037 square meters, is covered by Original
Certificate of Title (OCT) No. 196. The second lot, Lot No. 990 containing an area
of 118 sq m, is covered by OCT No. 1032. These lots are registered in the names of
the original owners, spouses Pedro Cuntapay and Leona Bunagan.
In an instrument denominated as Deed of Confirmation and acknowledged before a
notary public on June 14, 1979, the heirs of the said spouses conveyed the ownership
of Lots Nos. 990 and 5427 in favor of their two children, Irene Cuntapay and Isabel
Cuntapay. In another instrument entitled Partition Agreement and acknowledged
before a notary public on December 28, 1979, it was agreed that the eastern half
portion (subject lot) of Lots Nos. 990 and 5427 shall belong to the heirs of Isabel
Cuntapay. On the other hand, the remaining portion thereof (the west portion) shall
belong to the heirs of Irene Cuntapay. The subject lot (eastern half portion) has an
area of 554 sq m.
Isabel Cuntapay had four children by her first husband, Domingo Turingan, namely:
Abdon, Sado (deceased), Rufo and Maria. When Domingo Turingan passed away,
Isabel Cuntapay remarried Mariano Lasam. She had two other children by him,
namely: Trinidad and Rosendo.
Sometime in January 2001, the heirs of Rosendo Lasam (son of Isabel Cuntapay by
her second husband) filed with the MTCC a complaint for unlawful detainer against
Vicenta Umengan, who was then occupying the subject lot. Vicenta Umengan is the
daughter of Abdon Turingan (son of Isabel Cuntapay by her first husband).
In their complaint, the heirs of Rosendo Lasam alleged that they are the owners of
the subject lot, having inherited it from their father. Rosendo Lasam was allegedly
the sole heir of the deceased Pedro Cuntapay through Isabel Cuntapay. During his
lifetime, Rosendo Lasam allegedly temporarily allowed Vicenta Umengan to occupy
the subject lot sometime in 1955. The latter and her husband allegedly promised that
they would vacate the subject lot upon demand. However, despite written notice and
demand by the heirs of Rosendo Lasam, Vicenta Umengan allegedly unlawfully
refused to vacate the subject lot and continued to possess the same. Accordingly, the
heirs of Rosendo Lasam were constrained to institute the action for ejectment.
In her Answer with Counterclaim, Vicenta Umengan specifically denied the material
allegations in the complaint. She countered that when Isabel Cuntapay passed away,
the subject lot was inherited by her six children by her first and second marriages
through intestate succession. Each of the six children allegedly had a pro
indivisoshare of 1/6 of the subject lot.
It was further alleged by Vicenta Umengan that her father, Abdon Turingan,
purchased the respective 1/6 shares in the subject lot of his siblings Maria and Sado.
These conveyances were allegedly evidenced by the Deed of Sale dated March 3,
1975, appearing as Doc. No. 88, Page No. 36, Book No. XIV, series of 1975 of the
notarial book of Atty. Pedro Lagui.
Prior thereto, Rufo already sold his 1/6 share in the subject lot to Vicenta Umengan
and her husband as evidenced by the Deed of Sale dated June 14, 1961, appearing as
Doc. No. 539, Page No. 41, Book No. V, series of 1961 of the notarial book of Atty.
Pedro Lagui. Also on June 14, 1961, Abdon donated his 1/6 share in the subject lot
to her daughter Vicenta Umengan as evidenced by the Deed of Donation appearing
as Doc. No. 538, Page No. 41, Book No. V, series of 1961 of the notarial book of the
same notary public.
Page 30 of 34

According to Vicenta Umengan, the children of Isabel Cuntapay by her second
husband (Rosendo and Trinidad Lasam) own only 2/6 portion of the subject lot. She
thus prayed that the complaint for ejectment be dismissed and that the heirs of
Rosendo Lasam be ordered to pay her damages.
The MTCC rendered judgment in favor of the heirs of Rosendo Lasam and directed
the ejectment of Vicenta Umengan. In so ruling, the MTCC gave credence to the
newly discovered last will and testament (entitledTestamento Abierto) purportedly
executed by Isabel Cuntapay where she bequeathed the subject lot to her son,
Rosendo Lasam, thus:
x x x my share 1/5
th
(one-fifth) of the Cuntapay heirs, bordered on the North
by Sr. Elia Canapi; to the South, by Calle Aguinaldo; to the East, by Calle
P. Burgos and the West, by the late Don Luis Alonso; on the property which
is my share stands a house of light materials where I presently reside; this
1/5
th
(one-fifth) share of my inheritance from the Cuntapays I leave to my
son Rosendo Lasam and also the aforementioned house of light material x x
x
2

The MTCC reasoned that the heirs of Rosendo Lasam anchored their claim over the
subject lot on the last will and testament of Isabel Cuntapay while Vicenta Umengan
hinged hers on intestate succession and legal conveyances. Citing jurisprudence
3
and
Article 1080
4
of the Civil Code, the MTCC opined that testacy was favored and that
intestacy should be avoided and the wishes of the testator should prevail. It observed
that the last will and testament of Isabel Cuntapay was not yet probated as required
by law; nonetheless, the institution of a probate proceeding was not barred by
prescription.
With the finding that the subject lot was already bequeathed by Isabel Cuntapay to
Rosendo Lasam, the MTCC held that the siblings Abdon, Sado, Rufo and Maria
Turingan no longer had any share therein. Consequently, they could not convey to
Vicenta Umengan what they did not own. On the issue then of who was entitled to
possession of the subject lot, the MTCC ruled in favor of the heirs of Rosendo
Lasam as it found that Vicenta Umengans possession thereof was by mere tolerance.
The dispositive portion of the MTCC decision reads:
WHEREFORE, in the light of the foregoing considerations, this Court
Resolve[d] to order the EJECTMENT of VICENTA T. UMENGAN and in
her place INSTITUTE THE HEIRS OF ROSENDO LASAM.
It is further ordered the defendant shall pay the Heirs of Rosendo Lasam the
sum of P500.00 pesos representing the monthly rental of the land from
August 2000 to the time this case shall have been terminated.
Ordering the defendant to pay the plaintiffs the amount of P20,000.00
attorneys fees plus cost of this litigation.
So Ordered.
5

On appeal, the RTC affirmed in toto the decision of the MTCC. The RTC echoed the
reasoning of the MTCC that the testamentary disposition of the property of Isabel
Cuntapay should be respected, and that the heirs of Rosendo Lasam have a better
right to possess the subject lot.
Undaunted, Vicenta Umengan filed an appeal with the CA. She argued that the
MTCC had no jurisdiction over the case as it involved the recovery of ownership of
the subject lot, not merely recovery of possession or unlawful detainer. She also
assailed the RTCs and the MTCCs holding that the purported Testamento
Abierto of Isabel Cuntapay prevails over Vicenta Umengans muniments of title and,
consequently, the heirs of Rosendo Lasam have a better right to the subject lot than
Vicenta Umengan.
In the assailed Decision dated February 16, 2005, the CA reversed and set aside the
decision of the RTC. The appellate court preliminarily upheld the jurisdiction of the
MTCC over the subject matter as it found that the allegations in the complaint made
out a case for unlawful detainer. The heirs of Rosendo Lasam in their complaint,
according to the CA, only sought for Vicenta Umengan to vacate and surrender
possession of the subject lot. The CA also rejected the contention of the heirs of
Rosendo Lasam that the issue of ownership of the subject lot had already been
settled in another case, Civil Case No. 4917, before RTC (Branch 3) of Tuguegarao
City. The CA stated that the trial courts order dismissing the said case was not a
"judgment on the merits" as to constitute res judicata.
However, the CA declared that the RTC, as well as the MTCC, erred in ruling that,
by virtue of the purported last will and testament of Isabel Cuntapay, the heirs of
Rosendo Lasam have a better right to the subject lot over Vicenta Umengan. The CA
explained that the said last will and testament did not comply with the formal
requirements of the law on wills.
6

Specifically, the CA found that the pages of the purported last will and testament
were not numbered in accordance with the law. Neither did it contain the requisite
attestation clause. Isabel Cuntapay as testator and the witnesses to the will did not
affix their respective signatures on the second page thereof. The said instrument was
likewise not acknowledged before a notary public by the testator and the witnesses.
The CA even raised doubts as to its authenticity, noting that while Isabel Cuntapay
died in 1947 and the heirs of Rosendo Lasam claimed that they discovered the same
only in 1997, a date May 19, 1956 appears on the last page of the purported will.
Page 31 of 34

The CA opined that if this was the date of execution, then the will was obviously
spurious. On the other hand, if this was the date of its discovery, then the CA
expressed bafflement as to why the heirs of Rosendo Lasam, through their mother,
declared in the Partition Agreement dated December 28, 1979 that Isabel Cuntapay
died intestate.
It was observed by the CA that as against these infirmities in the claim of the heirs of
Rosendo Lasam, Vicenta Umengan presented a Deed of Sale and a Deed of Donation
to justify her possession of the subject lot. The CA noted that she has also possessed
the subject property since 1955. Such prior possession, the CA held, gave Vicente
Umengan the right to remain in the subject lot until a person with a better right
lawfully ejects her. The heirs of Rosendo Lasam do not have such a better right. The
CA stressed that the ruling on the issue of physical possession does not affect the
title to the subject lot nor constitute a binding and conclusive adjudication on the
merits on the issue of ownership. The parties are not precluded from filing the
appropriate action to directly contest the ownership of or the title to the subject lot.
The decretal portion of the assailed decision of the CA reads:
WHEREFORE, premises considered, the appeal is GRANTED. The August
29, 2003 decision of the RTC, Branch 1, Tuguegarao City, Cagayan in Civil
Case No. 5924 is hereby REVERSED and SET ASIDE. Private
respondents complaint for unlawful detainer against petitioner is dismissed
for lack of merit.
SO ORDERED.
7

The heirs of Rosendo Lasam sought the reconsideration thereof but their motion was
denied by the CA in its Resolution dated May 17, 2005.
The heirs of Rosendo Lasam (petitioners) now come to the Court alleging that the
CA committed reversible error in setting aside the decision of the RTC, which had
affirmed that of the MTCC, and dismissing their complaint for unlawful detainer
against respondent Vicenta Umengan.
Petitioners argue that the CA erred when it held, on one hand, that the MTCC had
jurisdiction over the subject matter of the complaint as the allegations therein make
out a case for unlawful detainer but, on the other hand, proceeded to discuss the
validity of the last will and testament of Isabel Cuntapay.
Petitioners insist that respondent is holding the subject lot by mere tolerance and that
they, as the heirs of Rosendo Lasam who was the rightful owner of the subject lot,
have a better right thereto. It was allegedly error for the CA to declare the last will
and testament of Isabel Cuntapay as null and void for its non-compliance with the
formal requisites of the law on wills. The said matter cannot be resolved in an
unlawful detainer case, which only involves the issue of material or physical
possession of the disputed property. In any case, they maintain that the said will
complied with the formal requirements of the law.
It was allegedly also erroneous for the CA to consider in respondents favor the deed
of sale and deed of donation covering portions of the subject lot, when these
documents had already been passed upon by the RTC (Branch 3) of Tuguegarao City
in Civil Case No. 4917 when it dismissed the respondents complaint for partition of
the subject lot. The said order allegedly constituted res judicata and may no longer
be reviewed by the CA.
Petitioners emphasize that in an unlawful detainer case, the only issue to be resolved
is who among the parties is entitled to the physical or material possession of the
property in dispute. On this point, the MTCC held (and the same was affirmed by the
RTC) that petitioners have a better right since the "merely tolerated" possession of
the respondent had already expired upon the petitioners formal demand on her to
vacate. In support of this claim, they point to the affidavit of Heliodoro Turingan,
full brother of the respondent, attesting that the latters possession of the subject lot
was by mere tolerance of Rosendo Lasam who inherited the same from Isabel
Cuntapay.
According to petitioners, respondents predecessors-in-interest from whom she
derived her claim over the subject lot by donation and sale could not have conveyed
portions thereof to her, as she had claimed, because until the present, it is still
covered by OCT Nos. 196 and 1032 under the names of Pedro and Leona Cuntapay.
Their respective estates have not been settled up to now.
It is also the contention of petitioners that the CA should have dismissed outright
respondents petition filed therewith for failure to comply with the technical
requirements of the Rules of Court. Specifically, the petition was not allegedly
properly verified, lacked statement of material dates and written explanation on why
personal service was not made.
This last contention of petitioners deserves scant consideration. The technical
requirements for filing an appeal are not sacrosanct. It has been held that while the
requirements for perfecting an appeal must be strictly followed as they are
considered indispensable interdictions against needless delays and for orderly
discharge of judicial business, the law does admit of exceptions when warranted by
circumstances.
8
In the present case, the CA cannot be faulted in choosing to overlook
the technical defects of respondents appeal. After all, technicality should not be
Page 32 of 34

allowed to stand in the way of equitably and completely resolving the rights and
obligations of the parties.
9

The Court shall now resolve the substantive issues raised by petitioners.
It is well settled that in ejectment suits, the only issue for resolution is the physical or
material possession of the property involved, independent of any claim of ownership
by any of the party litigants. However, the issue of ownership may be provisionally
ruled upon for the sole purpose of determining who is entitled to possession de
facto.
10

In the present case, petitioners base their claim of right to possession on the theory
that their father, Rosendo Lasam, was the sole owner of the subject lot by virtue of
the newly discovered last will and testament of Isabel Cuntapay bequeathing the
same to him. Respondent is allegedly holding the subject lot by mere tolerance of
Rosendo Lasam and, upon the petitioners formal demand on her to vacate the same,
respondents right to possess it has expired.
On the other hand, respondent hinges her claim of possession on the legal
conveyances made to her by the children of Isabel Cuntapay by her first husband,
namely, Maria, Rufo, Sado and Abdon. These conveyances were made through the
sale and donation by the said siblings of their respective portions in the subject lot to
respondent as evidenced by the pertinent deeds.
The CA correctly held that, as between the respective claims of petitioners and
respondent, the latter has a better right to possess the subject lot.
As earlier stated, petitioners rely on the last will and testament of Isabel Cuntapay
that they had allegedly newly discovered. On the basis of this instrument, the MTCC
and RTC ruled that petitioners have a better right to the possession of the subject lot
because, following the law on succession, it should be respected and should prevail
over intestate succession.
However, contrary to the ruling of the MTCC and RTC, the purported last will and
testament of Isabel Cuntapay could not properly be relied upon to establish
petitioners right to possess the subject lot because, without having been probated,
the said last will and testament could not be the source of any right.
Article 838 of the Civil Code is instructive:
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.
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.
In Caiza v. Court of Appeals,
11
the Court ruled that: "[a] will is essentially
ambulatory; at any time prior to the testators death, it may be changed or revoked;
and until admitted to probate, it has no effect whatever and no right can be claimed
thereunder, the law being quite explicit: No will shall pass either real or personal
property unless it is proved and allowed in accordance with the Rules of Court."
12

Dr. Tolentino, an eminent authority on civil law, also explained that "[b]efore any
will can have force or validity it must be probated. To probate a will means to prove
before some officer or tribunal, vested by law with authority for that purpose, that
the instrument offered to be proved is the last will and testament of the deceased
person whose testamentary act it is alleged to be, and that it has been executed,
attested and published as required by law, and that the testator was of sound and
disposing mind. It is a proceeding to establish the validity of the will."
13
Moreover,
the presentation of the will for probate is mandatory and is a matter of public
policy.
14

Following the above truisms, the MTCC and RTC, therefore, erroneously ruled that
petitioners have a better right to possess the subject lot on the basis of the purported
last will and testament of Isabel Cuntapay, which, to date, has not been probated.
Stated in another manner, Isabel Cuntapays last will and testament, which has not
been probated, has no effect whatever and petitioners cannot claim any right
thereunder.
Hence, the CA correctly held that, as against petitioners claim, respondent has
shown a better right of possession over the subject lot as evidenced by the deeds of
conveyances executed in her favor by the children of Isabel Cuntapay by her first
marriage.
Contrary to the claim of petitioners, the dismissal of respondents action for partition
in Civil Case No. 4917 before the RTC (Branch 3) of Tuguegarao City does not
constitute res judicata on the matter of the validity of the said conveyances or even as
Page 33 of 34

to the issue of the ownership of the subject lot. The order dismissing respondents
action for partition in Civil Case No. 4917 stated thus:
For resolution is a motion to dismiss based on defendants [referring to the
petitioners herein] affirmative defenses consisting inter alia in the discovery
of a last will and testament of Isabel Cuntapay, the original owner of the
land in dispute.
x x x
It appears, however, that the last will and testament of the late Isabel
Cuntapay has not yet been allowed in probate, hence, there is an imperative
need to petition the court for the allowance of said will to determine once
and for all the proper legitimes of legatees and devisees before any partition
of the property may be judicially adjudicated.
It is an elementary rule in law that testate proceedings take precedence over
any other action especially where the will evinces the intent of the testator
to dispose of his whole estate.
With the discovery of the will of the late Isabel Cuntapay in favor of the
defendants, the Court can order the filing of a petition for the probate of the
same by the interested party.
WHEREFORE, in light of the foregoing considerations, let the above-
entitled case be as it is hereby DISMISSED.
SO ORDERED.
15

For there to be res judicata, the following elements must be present: (1) finality of
the former judgment; (2) the court which rendered it had jurisdiction over the subject
matter and the parties; (3) it must be a judgment on the merits; and (4) there must be,
between the first and second actions, identity of parties, subject matter and causes of
action.
16
The third requisite, i.e., that the former judgment must be a judgment on the
merits, is not present between the action for partition and the complaint a quo for
unlawful detainer. As aptly observed by the CA:
Our reading of the Orders (dated June 16, 1997 and October 13, 1997) in
Civil Case No. 4917 reveals that the RTC, Branch 3, Tuguegarao, Cagayan,
dismissed the complaint for partition because of the discovery of the alleged
last will and testament of Isabel Cuntapay. The court did not declare
respondents [referring to the petitioners herein] the owners of the disputed
property. It simply ordered them to petition the court for the allowance of
the will to determine the proper legitimes of the heirs prior to any partition.
Instead of filing the appropriate petition for the probate of Isabel
Cuntapays will, the respondents filed the present complaint for unlawful
detainer. Viewed from this perspective, we have no doubt that the courts
Orders cited by the respondents are not "judgments on the merits" that
would result in the application of the principle of res judicata. Where the
trial court merely refrained from proceeding with the case and granted the
motion to dismiss with some clarification without conducting a trial on the
merits, there is no res judicata.
17

Further, it is not quite correct for petitioners to contend that the children of Isabel
Cuntapay by her first marriage could not have conveyed portions of the subject lot to
respondent, as she had claimed, because until the present, it is still covered by OCT
Nos. 196 and 1032 under the names of Pedro and Leona Cuntapay. To recall, it was
already agreed by the heirs of the said spouses in a Partition Agreement dated
December 28, 1979 that the subject lot would belong to Isabel Cuntapay. The latter
died leaving her six children by both marriages as heirs. Considering that her
purported last will and testament has, as yet, no force and effect for not having been
probated, her six children are deemed to be co-owners of the subject lot having their
respective pro indivisoshares. The conveyances made by the children of Isabel
Cuntapay by her first marriage of their respective pro indiviso shares in the subject
lot to respondent are valid because the law recognizes the substantive right of heirs
to dispose of their ideal share in the co-heirship and/co-ownership among the heirs.
The Court had expounded the principle in this wise:
This Court had the occasion to rule that there is no doubt that an heir can
sell whatever right, interest, or participation he may have in the property
under administration. This is a matter which comes under the jurisdiction of
the probate court.
The right of an heir to dispose of the decedents property, even if the same
is under administration, is based on the Civil Code provision stating that the
possession of hereditary property is deemed transmitted to the heir without
interruption and from the moment of the death of the decedent, in case the
inheritance is accepted. Where there are however, two or more heirs, the
whole estate of the decedent is, before its partition, owned in common by
such heirs.
The Civil Code, under the provisions of co-ownership, further qualifies this
right. Although it is mandated that each co-owner shall have the full
ownership of his part and of the fruits and benefits pertaining thereto, and
thus may alienate, assign or mortgage it, and even substitute another person
Page 34 of 34

in its enjoyment, the effect of the alienation or the mortgage, with respect to
the co-owners, shall be limited to the portion which may be allotted to him
in the division upon the termination of the co-ownership. In other words,
the law does not prohibit a co-owner from selling, alienating or mortgaging
his ideal share in the property held in common.
As early as 1942, this Court has recognized said right of an heir to dispose
of property under administration. In the case of Teves de Jakosalem vs.
Rafols, et al., it was said that the sale made by an heir of his share in an
inheritance, subject to the result of the pending administration, in no wise,
stands in the way of such administration. The Court then relied on the
provision of the old Civil Code, Article 440 and Article 399 which are still
in force as Article 533 and Article 493, respectively, in the new Civil Code.
The Court also cited the words of a noted civilist, Manresa: "Upon the death
of a person, each of his heirs becomes the undivided owner of the whole
estate left with respect to the part or portion which might be adjudicated to
him, a community of ownership being thus formed among the co-owners of
the estate which remains undivided."
18

Contrary to the assertion of petitioners, therefore, the conveyances made by the
children of Isabel Cuntapay by her first marriage to respondent are valid insofar as
their pro indiviso shares are concerned. Moreover, the CA justifiably held that these
conveyances, as evidenced by the deed of donation and deed of sale presented by
respondent, coupled with the fact that she has been in possession of the subject lot
since 1955, establish that respondent has a better right to possess the same as against
petitioners whose claim is largely based on Isabel Cuntapays last will and testament
which, to date, has not been probated; hence, has no force and effect and under
which no right can be claimed by petitioners. Significantly, the probative value of the
other evidence relied upon by petitioners to support their claim, which was the
affidavit of Heliodoro Turingan, was not passed upon by the MTCC and the RTC.
Their respective decisions did not even mention the same.
In conclusion, it is well to stress the CAs admonition that
x x x our ruling on the issue of physical possession does not affect title to
the property nor constitute a binding and conclusive adjudication on the
merits on the issue of ownership. The parties are not precluded from filing
the appropriate action directly contesting the ownership of or the title to the
property.
19

Likewise, it is therefore in this context that the CAs finding on the validity of Isabel
Cuntapays last will and testament must be considered. Such is merely a provisional
ruling thereon for the sole purpose of determining who is entitled to possession de
facto.
WHEREFORE, premises considered, the petition is DENIED. The assailed
Decision dated February 16, 2005 and the Resolution dated May 17, 2005 of the
Court of Appeals in CA-G.R. SP No. 80032 are AFFIRMED.
SO ORDERED.