G.R. No.

L-23002

July 31, 1967

CONCEPCION FELIX VDA. DE RODRIGUEZ, plaintiff-appellant,

vs.
GERONIMO RODRIGUEZ., ET AL., defendants-appellees.
Ozaeta, Gibbs and Ozaeta for plaintiff-appellant.
Sycip, Salazar, Luna and Associates and Carolina C. Grio-Aquino for defendants-appellees.
REYES, J.B.L., J.:
This is an appeal by Concepcion Felix Vda. de Rodriguez from the decision of the Court of First Instance of Bulacan in Civil Case
No. 2565, which she commenced on May 28, 1962, to secure declaration, of nullity of two contracts executed on January 24, 1934
and for recovery of certain properties.
The facts of this case may be briefly stated as follows:
Concepcion Felix, widow of the late Don Felipe Calderon and with whom she had one living child, Concepcion Calderon, contracted
a second marriage on June 20, 1929, with Domingo Rodriguez, widower with four children by a previous marriage, named
Geronimo, Esmeragdo, Jose and Mauricio, all surnamed Rodriguez. There was no issue in this second marriage.
Prior to her marriage to Rodriguez, Concepcion Felix was the registered owner of 2 fishponds located in the barrio of Babagad,
municipality of Bulacan, Bulacan province. with a total area of 557,711 square meters covered by OCT Nos. 605 and 807. Under
date of January 24, 1934, Concepcion Felix appeared to have executed a deed of sale conveying ownership of the aforesaid
properties to her daughter, Concepcion Calderon, for the sum of P2,500.00, which the latter in turn appeared to have transferred to
her mother and stepfather by means of a document dated January 27, 1934. Both deeds, notarized by Notary Public Jose D.
Mendoza, were registered in the office of the Register of Deeds of Bulacan on January 29, 1934, as a consequence of which, the
original titles were cancelled and TCT Nos. 13815 and 13816 were issued in the names of the spouses Domingo Rodriguez and
Concepcion Felix.
On March 6, 1953, Domingo Rodriguez died intestate, survived by the widow, Concepcion Felix, his children Geronimo Esmeragdo
and Mauricio and grandchildren Oscar, Juan and Ana, surnamed Rodriguez, children of a son, Jose, who had predeceased him.
On March 16, 1953, the above-named widow, children and grandchildren of the deceased entered into an extra-judicial settlement
of his (Domingo's) estate, consisting of one-half of the properties allegedly belonging to the conjugal partnership. Among the
properties listed as conjugal were the two parcels of land in Bulacan, Bulacan, which, together with another piece of property, were
divided among the heirs in this manner:
WHEREAS, the parties have furthermore agreed that the fishpond covered by TCT Nos. 13815, 13816 and 24109 of the Office of the
Register of Deeds of Bulacan, containing an area of 557,971 sq. m., which is likewise the conjugal property of the deceased and his
surviving spouse; 1/2 of the same or 278,985.5 sq. m. belongs to said Concepcion Felix Vda. de Rodriguez, as her share in the
conjugal property; and 3/4 of the remaining half or 209,239.125 sq. m. are transferred in full ownership to Geronimo Rodriguez,
Esmeragdo Rodriguez and Mauricio Rodriguez, share and share alike, while the other 1/4 or 69,746.375 sq. m. of the said
remaining half goes in equal shares to Oscar Rodriguez, Juan Rodriguez and Ana Rodriguez.
As a result of this partition, TCT Nos. 13815 and 13816 were cancelled and TCT Nos. T-11431 and T-14432 were issued in the names
of the said heirs of the deceased.
On March 23, 1953, in a power of attorney executed by the children and grandchildren of Domingo Rodriguez, Concepcion Felix
Vda. de Rodriguez was named their attorney in-fact, authorized to manage their shares in the fishponds (Exh. 4).
On July 2, 1954, the heirs ended their co-ownership by executing a deed of partition, dividing and segregating their respective
shares in the properties, pursuant to a consolidation and subdivision plan (PCS-3702), in accordance with which, Concepcion Felix
Vda. de Rodriguez obtained TCT No. T-12910, for the portion pertaining to her (Exh. L), while TCT No. T-12911 was issued to the
other heirs, for their shares. This latter title was subsequently replaced by TCT No. 16660 (Exh. M).
On October 12, 1954, the Rodriguez children executed another document granting unto the widow lifetime usufruct over one-third
of the fishpond which they received as hereditary share in the estate of Domingo Rodriguez, which grant was accepted by
Concepcion Felix Vda. de Rodriguez.

Then, in a contract dated December 15, 1961, the widow appeared to have leased from the Rodriguez children and grandchildren
the fishpond (covered by TCT No. 16660) for a period of 5 years commencing August 16, 1962, for an annual rental of P7,161.37
(Exh. 5).1wph1.t
At about this time, it seemed that the relationship between the widow and her stepchildren had turned for the worse. Thus, when
she failed to deliver to them the balance of the earnings of the fishponds, in the amount of P3,000.00, her stepchildren endorsed
the matter to their lawyer who, on May 16, 1962, sent a letter of demand to the widow for payment thereof. On, May 28, 1962,
Concepcion Felix Vda. de Rodriguez filed the present action in the Court of First Instance of Manila naming as defendants,
Geronimo Rodriguez, Esmeragdo Rodriguez, Oscar Rodriguez, Concepcion Bautista Vda. de Rodriguez, as guardian of the minors
Juan and Ana Rodriguez, and Antonio Diaz de Rivera and Renato Diaz de Rivera, as guardians of the minors Maria Ana, Mercedes,
Margarita, Mauricio, Jr. and Domingo (Children of Mauricio Rodriguez who had also died).
The action to declare null and void the deeds of transfer of plaintiff's properties to the conjugal partnership was based on the
alleged employment or exercise by plaintiff's deceased husband of force and pressure on her; that the conveyances of the properties
from plaintiff to her daughter and then to the conjugal partnership of plaintiff and her husband are both without
consideration; that plaintiff participated in the extrajudicial settlement of estate (of the deceased Domingo Rodriguez) and in other
subsequent deeds or instruments involving the properties in dispute, on the false assumption that the said properties had become
conjugal by reason of the execution of the deeds of transfer in 1934; that laboring under the same false assumption, plaintiff
delivered to defendants, as income of the properties from 1956 to 1961, the total amount of P56,976.58. As alternative cause of
action, she contended that she would claim for her share, as surviving widow, of 1/5 of the properties in controversy, should such
properties be adjudged as belonging to the conjugal partnership. Thus, plaintiff prayed that the deeds of transfer mentioned in the
complaint be declared fictitious and simulated; that the "Extrajudicial Settlement of Estate" be also declared null and void; that
TCT No. 16660 of the Registry of Deeds of Bulacan be cancelled and another one be issued in the name of plaintiff, Concepcion
Felix Vda. de Felix; that defendants be ordered to pay plaintiff the sum of P56,976.58, with legal interest thereon from the date of
the filing of the complaint, and for appropriate relief in connection with her alternative cause of action.
In their separate answers, defendants not only denied the material allegations of the complaint, but also set up as affirmative
defenses lack of cause of action, prescription, estoppel and laches. As counterclaim, they asked for payment by the plaintiff of the
unpaid balance of the earnings of the land up to August 15, 1962 in the sum of P3,000.00, for attorney's fees and expenses of
litigation.
On October 5, 1963, judgment was rendered for the defendants. In upholding the validity of the contracts, the court found that
although the two documents, Exhibits A and B, were executed for the purpose of converting plaintiff's separate properties into
conjugal assets of the marriage with Domingo Rodriguez, the consent of the parties thereto was voluntary, contrary to the
allegations of plaintiff and her witness. The court also ruled that having taken part in the questioned transactions, plaintiff was not
the proper party to plead lack of consideration to avoid the transfers; that contracts without consideration are not inexistent, but
are only voidable, following the ruling in the case of Concepcion vs. Sta. Ana (87 Phil. 787); that there was ratification or
confirmation by the plaintiff of the transfer of her property, by her execution (with the other heirs) of the extrajudicial settlement of
estate; that being a voluntary party to the contracts, Exhibits A and B, plaintiff cannot recover the properties she gave thereunder.
Plaintiff's alternative cause of action was also rejected on the ground that action for rescission of the deed of extrajudicial
settlement should have been filed within 4 years from its execution (on March 16, 1953).
From the decision of the Court of First Instance, plaintiff duly appealed to this Court, insisting that the conveyances in issue were
obtained through duress, and were inexistent, being simulated and without consideration.
We agree with the trial Court that the evidence is not convincing that the contracts of transfer from Concepcion Felix to her
daughter, and from the latter to her mother and stepfather were executed through violence or intimidation. The charge is
predicated solely upon the improbable and biased testimony of appellant's daughter, Concepcion C. Martelino, whom the trial
court, refused to believe, considering that her version of violence and harassment was contradicted by Bartolome Gualberto who
had lived with the Rodriguez spouses from 1917 to 1953, and by the improbability of Rodriguez threatening his stepdaughter in
front of the Notary Public who ratified her signature. Furthermore, as pointed out by the appealed decision, the charge of duress
should be treated with caution considering that Rodriguez had already died when the suit was brought, for duress, like fraud, is not
to be lightly paid at the door of men already dead. (Cf. Prevost vs. Gratz, 6 Wheat. [U.S.] 481, 498; Sinco vs. Longa, 51 Phil. 507).
What is more decisive is that duress being merely a vice or defect of consent, an action based upon it must be brought within four
years after it has ceased;1 and the present action was instituted only in 1962, twenty eight (28) years after the intimidation is
claimed to have occurred, and no less than nine (9) years after the supposed culprit died (1953). On top of it, appellant entered into
a series of subsequent transactions with appellees that confirmed the contracts that she now tries to set aside. Therefore, this cause
of action is clearly barred.

Appellant's main stand in attacking the conveyances in question is that they are simulated or fictitious, and inexistent for lack of
consideration. We shall examine each purported defect separately.
The charge of simulation is untenable, for the characteristic of simulation is the fact that the apparent contract is not really desired
or intended to produce legal effects or in way alter the juridical situation of the parties. Thus, where a person, in order to place his
property beyond the reach of his creditors, simulates a transfer of it to another, he does not really intend to divest himself of his
title and control of the property; hence, the deed of transfer is but a sham. But appellant contends that the sale by her to her
daughter, and the subsequent sale by the latter to appellant and her husband, the late Domingo Rodriguez, were done for the
purpose of converting the property from paraphernal to conjugal, thereby vesting a half interest in Rodriguez, and evading the
prohibition against donations from one spouse to another during coverture (Civil Code of 1889, Art. 1334). If this is true, then the
appellant and her daughter must have intended the two conveyance to be real and effective; for appellant could not intend to keep
the ownership of the fishponds and at the same time vest half of them in her husband. The two contracts of sale then could not have
been simulated, but were real and intended to be fully operative, being the means to achieve the result desired.
Nor does the intention of the parties to circumvent by these contracts the law against donations between spouses make them
simulated ones.
Ferrara, in his classic book, "La Simulacion de los Negocios Juridicos" (Sp. trans, 1926), pp. 95, 105, clearly explains the difference
between simulated transactions and transactions in fraudem legis:
Otra figura que debe distinguirse de la simulacion es el fraus legis. Tambien aqui se da una gran confusion que persiste aun en la
jurisprudencia, apegada tenazmente a antiguos errores. Se debe a Bahr el haber defendido con vigor la antitesis teorica que existe
entre negocio fingido y negocio fraudulento y haber atacado la doctrina comun que hacia una mescolanza con los dos conceptos.
Se confunde dice (2) , el negocio in fraudem legis con el negocio simulado; aunque la naturaleza de ambos sea totalmente
diversa. El negocio fraudulento no es, en absolute, un negocio aparente. Es perfectamente serio: se quiere realmente. Es mas, se
quiere tal como se ha realizado, con todas las consecuencias que correspondent a la forma juridica elegida. Muchas veces, estas
consecuencias con incomodas para una u otra de las partes, aunque serian mucho mas incomodas las consecuencias que lievaria
consigo el acto prohibido.
xxx

xxx

xxx

El resultado de las precedentes investigaciones es el siguiente el negocio simulado quiere producir una apariencia; el negocio
fraudulente, una realidad; los negocios simulados son ficticios, no queridos; los negocios in fraudem son serios, reales, y realizados
en tal forma por las partes para consequir un resultado prohibido: la simulacion nunca es un medio para eludir la ley sino para
ocultar su violation. La transgresion del contenido verbal e inmediato de la norma se encubre bajo el manto de un negocio licito, lo
cual no altera el caracter del contra legem agere. Tan verdad es, que si se ha redactado una contra-escritura que documentary y
declara la verdadera naturaleza del negocio realizado, no queda mas que aplicar pura y simplementela prohibicion.
Tambien el fraude quiere perjudicar la ley, pero emplea para ello medios diversos y sigue distintos caminus. No oculta el acto
exterior, sino que lo deja claro y visible, tratando de huir sesgadamente de la aplicacion de la ley merced a una artistica y sabia
combinacion de varios medios juridicos no reprobados.
Appellant invokes our decision in Vasquez vs. Porta, 98 Phil. 490, but to no purpose. The mortgage and foreclosure sale involved in
that case were typical simulations merely apparent but not really intended to produce legal effects, as approved by the Court's
finding that the alleged creditor and buyer at the foreclosure sale "Porta himself ostensibly acknowledged by his inertia in allowing
the doctor (alleged mortgagor debtor) to exercise dominical power thereon without any protest on his part." (cas. cit., p. 495). Not
only this, but the mortgagor's wife, when her husband died, "found among his papers Porta's cancellation of the mortgage in his
favor and the draft of the complaint for foreclosure." Plainly, the precedent cited is here inapplicable.
Were the two conveyances from appellant to her daughter and from the latter to the spouses Rodriguez void ab initio or inexistent
for lack of consideration? We do not find them to be so. In the first transaction, the price of P2,500.00 is recited in the deed itself
(Exh. A); in the second (Exh. B), the consideration set forth is P3,000.00. Now, Article 1274 of the Civil Code of 1889 (in force
when the deeds were executed) provided that
In onerous contracts the cause is understood to be, for each contracting party, the prestation or promise of a thing or service by the
other. (emphasis supplied.)
Since in each conveyance the buyer became obligated to pay a definite price in money, such undertaking constituted in themselves
actual causa or consideration for the conveyance of the fishponds. That the prices were not paid (assuming ad arguendo that

Concepcion Martelino's testimony, to this effect is true) does not make the sales inexistent for want of causa. As ruled in Enriquez
de la Cavada vs. Diaz, 37 Phil. 982, "the consideration (causa) need not pass from one (party) to the other at the time the contract
is entered into x x x . The consideration need not be paid at the time of the promise. The one promise is a consideration for the
other."
What would invalidate the conveyances now under scrutiny is the fact that they were resorted to in order to circumvent the legal
prohibition against donations between spouses contained in Article 1334, paragraph 1, of the Civil Code of 1889, then prevailing.
That illegal purpose tainted the contracts, for as held by the Spanish Tribunal Supreme in its decision of 2 April 1941.
ha de ser reputado ineficaz, por exigencias includibles del caracter social y moral del Derecho, todo contrato que persiga un fin
ilicito o immoral, sea cualquiera el medio empleado por los contratantes para lograr esa finalidad, no justificada por un interes
digno de ser socialmente protegido.
The illicit purpose then becomes illegal causa within the terms of the old Civil Code, for as declared by the same Spanish Court in
its decision of 14 December 1940
toda vez que lo que caracteriza fundamentalmente la ilicitud de la causa es la lesion de un interos general juridica 6 moral.
a ruling reiterated in the decision of 2 April 1941 when the Court ruled:
El concepto de la causa ilicita, tal como la desenvuelve y aplica con gran amplitud y flexibilidad la doctrina moderna, permite
cobijar, no solo las convenciones ilicitas por razon de su objeto o de su motivo ... sino tambien multiples convenciones que no
encerrando en si ningun elemento de directa antijuricidad son ilicitas por el matiz immoral que reviste la operation en su conjunto
xxx.
Unfortunately for herein appellant, in contracts invalidated by illegal subject matter or illegal causa, Articles 1305 and 1306 of the
Civil Code then in force apply rigorously the rule in pari delicto non oritur action, denying all recovery to the guilty parties inter se.
And appellant is clearly as guilty as her husband in the attempt to evade the legal interdiction of Article 1334 of the Code, already
cited. Wherefore, her present action to reivindicate the, conveyed properties was correctly repulsed by the Court below.
Art. 1306. If the act which constitutes the illicit consideration is neither a crime nor a misdemeanor, the following rules shall be
observed:
1. When both parties are guilty, neither of them can recover what he may have given by virtue of the contract, or enforce the
performance of the undertaking of the other party;
xxx

xxx

xxx

That Article 1306 applies to cases where the nullity arises from the illegality of the consideration or the purpose of the contract was
expressly recognized by this Supreme Court in Gustilo vs. Maravilla, 48 Phil. 449-450.2
Finally, it cannot be denied that plaintiff-appellant had knowledge of the nullity of the contract for the transfer of her properties in
1934, because she was even a party thereto. And yet, her present action was filed only on May 28, 1962 and after the breaking up of
friendly relations between her and defendants-appellees. Appellant's inaction to enforce her right, for 28 years, cannot be justified
by the lame excuse that she assumed that the transfer was valid. Knowledge of the effect of that transaction would have been
obtained by the exercise of diligence. Ignorance which is the effect of inexcusable negligence, it has been said, is no excuse for
laches. (Go Chi Gun, etc., et al. vs. Co Cho, et al., G.R. No. L-5208, Feb. 28, 1955). Even assuming for the sake of argument that
appellant held her peace, during the lifetime of her husband, out of legitimate fear for her life, there is no justification for her future
to bring the proper action after his death in 1953. Instead, she entered into a series of agreements with herein appellees, the
children of her husband by a prior marriage, of partition, usufruct and lease of their share in the fishponds, transactions that
necessarily assumed that Rodriguez had acquired one-half of the litigated fishponds. In the circumstances, appellant's cause has
become a stale demand and her conduct placed her in estoppel to question the Validity of the transfer of her properties. (Manila, et
al. vs. Galvan, et al., G.R. No. L-23507, May 24, 1967;
In view of the foregoing, the decision appealed from is affirmed. Costs against appellant Concepcion Felix Vda. de Rodriguez. So
ordered.

G.R. No. L-23445, Nuguid v. Nuguid and Nuguid, 17 SCRA 449

Republic of the Philippines
SUPREME COURT
Manila
EN BANC
June 23, 1966
G.R. No. L-23445
REMEDIOS NUGUID, petitioner and appellant,
vs.
FELIX NUGUID and PAZ SALONGA NUGUID, oppositors and appellees.
Custodio O. Partade for petitioner and appellant.
Beltran, Beltran and Beltran for oppositors and appellees.
SANCHEZ, J.:
Rosario Nuguid, a resident of Quezon City, died on December 30, 1962, single, without descendants, legitimate or illegitimate.
Surviving her were her legitimate parents, Felix Nuguid and Paz Salonga Nuguid, and six (6) brothers and sisters, namely: Alfredo,
Federico, Remedios, Conrado, Lourdes and Alberto, all surnamed Nuguid.
On May 18, 1963, petitioner Remedios Nuguid filed in the Court of First Instance of Rizal a holographic will allegedly executed by
Rosario Nuguid on November 17, 1951, some 11 years before her demise. Petitioner prayed that said will be admitted to probate and
that letters of administration with the will annexed be issued to her.
On June 25, 1963, Felix Nuguid and Paz Salonga Nuguid, concededly the legitimate father and mother of the deceased Rosario
Nuguid, entered their opposition to the probate of her will. Ground therefor, inter alia, is that by the institution of petitioner
Remedios Nuguid as universal heir of the deceased, oppositors who are compulsory heirs of the deceased in the direct ascending
line were illegally preterited and that in consequence the institution is void.
On August 29, 1963, before a hearing was had on the petition for probate and objection thereto, oppositors moved to dismiss on the
ground of absolute preterition.
On September 6, 1963, petitioner registered her opposition to the motion to dismiss.
The court's order of November 8, 1963, held that "the will in question is a complete nullity and will perforce create intestacy of the
estate of the deceased Rosario Nuguid" and dismissed the petition without costs.
A motion to reconsider having been thwarted below, petitioner came to this Court on appeal.
1. Right at the outset, a procedural aspect has engaged our attention. The case is for the probate of a will. The court's area of inquiry
is limited to an examination of, and resolution on, the extrinsic validity of the will. The due execution thereof, the testatrix's
testamentary capacity, and the compliance with the requisites or solemnities by law prescribed, are the questions solely to be
presented, and to be acted upon, by the court. Said court at this stage of the proceedings is not called upon to rule on
the intrinsic validity or efficacy of the provisions of the will, the legality of any devise or legacy therein. [[1]]
A peculiar situation is here thrust upon us. The parties shunted aside the question of whether or not the will should be allowed
probate. For them, the meat of the case is the intrinsic validity of the will. Normally, this comes only after the court has declared
that the will has been duly authenticated.[[2]] But petitioner and oppositors, in the court below and here on appeal, travelled on the
issue of law, to wit: Is the will intrinsically a nullity?
We pause to reflect. If the case were to be remanded for probate of the will, nothing will be gained. On the contrary, this litigation
will be protracted. And for aught that appears in the record, in the event of probate or if the court rejects the will, probability exists
that the case will come up once again before us on the same issue of the intrinsic validity or nullity of the will. Result: waste of time,
effort, expense, plus added anxiety. These are the practical considerations that induce us to a belief that we might as well meet

head-on the issue of the validity of the provisions of the will in question. [[3]] After all, there exists a justiciable controversy crying for
solution.
2. Petitioner's sole assignment of error challenges the correctness of the conclusion below that the will is a complete nullity. This
exacts from us a study of the disputed will and the applicable statute.
Reproduced hereunder is the will:
Nov. 17, 1951
I, ROSARIO NUGUID, being of sound and disposing mind and memory, having amassed a certain amount of property, do
hereby give, devise, and bequeath all of the property which I may have when I die to my beloved sister Remedios Nuguid, age 34,
residing with me at 38-B Iriga, Q.C. In witness whereof, I have signed my name this seventh day of November, nineteen hundred
and fifty-one.
(Sgd.) Illegible
T/ ROSARIO NUGUID
The statute we are called upon to apply in Article 854 of the Civil Code which, in part, provides:
ART. 854. The preterition or omission of one, some, or all of the compulsory heirs in the direct line, whether living at the time of
the execution of the will or born after the death of the testator, shall annul the institution of heir; but the devises and legacies shall
be valid insofar as they are not inofficious. .
Except for inconsequential variation in terms, the foregoing is a reproduction of Article 814 of the Civil Code of Spain of 1889,
which is similarly herein copied, thus
Art. 814. The preterition of one or all of the forced heirs in the direct line, whether living at the time of the execution of the will or
born after the death of the testator, shall void the institution of heir; but the legacies and betterments [[4]] shall be valid, in so far as
they are not inofficious. .
A comprehensive understanding of the term preterition employed in the law becomes a necessity. On this point Manresa
comments:
La pretericion consiste en omitar al heredero en el testamento. O no se le nombra siquiera o aun nombrandole como padre, hijo,
etc., no se le instituya heredero ni se le deshereda expresamente ni se le asigna parte alguna de los bienes, resultando privado de un
modo tacito de su derecho a legitima.
Para que exista pretericion, con arreglo al articulo 814, basta que en el testamento omita el testador a uno cualquiera de aquellos a
quienes por su muerte corresponda la herencia forzosa.
Se necesita, pues, a) Que la omision se refiera a un heredero forzoso. b) Que la omision sea completa; que el heredero forzoso nada
reciba en el testamento.
It may now appear trite bat nonetheless helpful in giving us a clear perspective of the problem before us, to have on hand a clearcut definition of the word annul:
To "annul" means to abrogate, to make void ... In re Morrow's Estate, 54 A. 342, 343, 204 Pa. 484.[[6]]
The word "annul" as used in statute requiring court to annul alimony provisions of divorce decree upon wife's remarriage means to
reduce to nothing; to annihilate; obliterate; blot out; to make void or of no effect; to nullify; to abolish. N.J.S.A. 2:50 38 (now
N.J.S. 2A:34-35). Madden vs. Madden, 40 A. 2d 611, 614, 136 N..J Eq. 132. [[7]]
ANNUL. To reduce to nothing; annihilate; obliterate; to make void or of no effect; to nullify; to abolish; to do away with. Ex
parte Mitchell, 123 W. Va. 283, 14 S.E. 2d. 771, 774. [[8]]
And now, back to the facts and the law. The deceased Rosario Nuguid left no descendants, legitimate or illegitimate. But she left
forced heirs in the direct ascending line her parents, now oppositors Felix Nuguid and Paz Salonga Nuguid. And, the will
completely omits both of them: They thus received nothing by the testament; tacitly, they were deprived of their legitime; neither
were they expressly disinherited. This is a clear case of preterition. Such preterition in the words of Manresa "anulara siempre la

institucion de heredero, dando caracter absoluto a este ordenamiento referring to the mandate of Article 814, now 854 of the Civil
Code.[[9]]The one-sentence will here institutes petitioner as the sole, universal heir nothing more. No specific legacies or bequests
are therein provided for. It is in this posture that we say that the nullity is complete. Perforce, Rosario Nuguid died intestate. Says
Manresa:
En cuanto a la institucion de heredero, se anula. Lo que se anula deja de existir, en todo o en parte? No se aade limitacion alguna,
como en el articulo 851, en el que se expresa que se anulara la institucion de heredero en cuanto prejudique a la legitima del
deseheredado Debe, pues, entenderse que la anulacion es completa o total, y que este articulo como especial en el caso que le
motiva rige con preferencia al 817. [[10]]
The same view is expressed by Sanchez Roman:
La consecuencia de la anulacion o nulidad de la institucion de heredero por pretericion de uno, varios o todos los forzosos en linea
recta, es la apertura de la sucesion intestada total o parcial. Sera total, cuando el testador que comete la pretericion, hubiese
dispuesto de todos los bienes por titulo universal de herencia en favor de los herederos instituidos, cuya institucion se anula,
porque asi lo exige la generalidad del precepto legal del art. 814, al determinar, como efecto de la pretericion, el de que "anulara la
institucion de heredero." ... [[11]]

Really, as we analyze the word annul employed in the statute, there is no escaping the conclusion that the universal institution of
petitioner to the entire inheritance results in totally abrogating the will. Because, the nullification of such institution of universal
heir without any other testamentary disposition in the will amounts to a declaration that nothing at all was written. Carefully
worded and in clear terms, Article 854 offers no leeway for inferential interpretation. Giving it an expansive meaning will tear up by
the roots the fabric of the statute. On this point, Sanchez Roman cites the "Memoria annual del Tribunal Supreme, correspondiente
a 1908", which in our opinion expresses the rule of interpretation, viz:
... El art. 814, que preceptua en tales casos de pretericion la nulidad de la institucion de heredero, no consiente interpretacion
alguna favorable a la persona instituida en el sentido antes expuesto aun cuando parezca, y en algun caso pudiera ser, mas o menos
equitativa, porque una nulidad no significa en Derecho sino la suposicion de que el hecho o el acto no se ha realizado, debiendo por
lo tanto procederse sobre tal base o supuesto, y consiguientemente, en un testamento donde falte la institucion, es obligado llamar
a los herederos forzosos en todo caso, como habria que llamar a los de otra clase, cuando el testador no hubiese distribudo todos
sus bienes en legados, siendo tanto mas obligada esta consecuencia legal cuanto que, en materia de testamentos, sabido es, segun
tiene declarado la jurisprudencia, con repeticion, que no basta que sea conocida la voluntad de quien testa si esta voluntad no
aparece en la forma y en las condiciones que la ley ha exigido para que sea valido y eficaz, por lo que constituiria una interpretacion
arbitraria, dentro del derecho positivo, reputar como legatario a un heredero cuya institucion fuese anulada con pretexto de que
esto se acomodaba mejor a la voluntad del testador, pues aun cuando asi fuese, sera esto razon para modificar la ley, pero no
autoriza a una interpretacion contraria a sus terminos y a los principios que informan la testamentifaccion, pues no porque parezca
mejor una cosa en el terreno del Derecho constituyente, hay razon para convereste juicio en regla de interpretacion, desvirtuando y
anulando por este procedimiento lo que el legislador quiere establecer. [[12]]
3. We should not be led astray by the statement in Article 854 that, annullment notwithstanding, "the devises and legacies shall be
valid insofar as they are not inofficious". Legacies and devises merit consideration only when they are so expressly given as such in
a will. Nothing in Article 854 suggests that the mereinstitution of a universal heir in a will void because of preterition would
give the heir so instituted a share in the inheritance. As to him, the will is inexistent. There must be, in addition to such institution,
a testamentary disposition granting him bequests or legacies apart and separate from the nullified institution of heir. Sanchez
Roman, speaking of the two component parts of Article 814, now 854, states that preterition annuls the institution of the heir
"totalmente por la pretericion"; but added (in reference to legacies and bequests) "pero subsistiendo ... todas aquellas otras
disposiciones que no se refieren a la institucion de heredero ... . [[13]] As Manresa puts it, annulment throws open to intestate
succession the entire inheritance including "la porcion libre (que) no hubiese dispuesto en virtud de legado, mejora o
donacion. [[14]]
As aforesaid, there is no other provision in the will before us except the institution of petitioner as universal heir. That institution,
by itself, is null and void. And, intestate succession ensues.
4. Petitioner's mainstay is that the present is "a case of ineffective disinheritance rather than one of preterition". [[15]] From this,
petitioner draws the conclusion that Article 854 "does not apply to the case at bar". This argument fails to appreciate the distinction
between pretention and disinheritance.

Preterition "consists in the omission in the testator's will of the forced heirs or anyone of them, either because they are not
mentioned therein, or, though mentioned, they are neither instituted as heirs nor are expressly disinherited." [[16]]Disinheritance, in
turn, "is a testamentary disposition depriving any compulsory heir of his share in the legitime for a cause authorized by law.
" [[17]] In Manresa's own words: "La privacion expresa de la legitima constituye la desheredacion. La privacion tacita de la misma se
denomina pretericion." [[18]] Sanchez Roman emphasizes the distinction by stating that disinheritance "es siempre voluntaria";
preterition, upon the other hand, is presumed to be "involuntaria". [[19]] Express as disinheritance should be, the same must be
supported by a legal cause specified in the will itself. [[20]]
The will here does not explicitly disinherit the testatrix's parents, the forced heirs. It simply omits their names altogether. Said will
rather than be labeled ineffective disinheritance is clearly one in which the said forced heirs suffer from preterition.
On top of this is the fact that the effects flowing from preterition are totally different from those of disinheritance. Preterition under
Article 854 of the Civil Code, we repeat, "shall annul the institution of heir". This annulment is in toto, unless in the will there are,
in addition, testamentary dispositions in the form of devises or legacies. In ineffective disinheritance under Article 918 of the same
Code, such disinheritance shall also "annul the institution of heirs", put only "insofar as it may prejudice the person disinherited",
which last phrase was omitted in the case of preterition. [[21]] Better stated yet, in disinheritance the nullity is limited to that
portion of the estate of which the disinherited heirs have been illegally deprived. Manresa's expressive language, in commenting on
the rights of the preterited heirs in the case of preterition on the one hand and legal disinheritance on the other, runs thus:
"Preteridos, adquiren el derecho a todo; desheredados, solo les corresponde un tercio o dos tercios, [[22]] el caso. [[23]]
5. Petitioner insists that the compulsory heirs ineffectively disinherited are entitled to receive their legitimes, but that the
institution of heir "is not invalidated," although the inheritance of the heir so instituted is reduced to the extent of said
legitimes. [[24]]
This is best answered by a reference to the opinion of Mr. Chief Justice Moran in theNeri case heretofore cited, viz:
But the theory is advanced that the bequest made by universal title in favor of the children by the second marriage should be
treated as legado and mejora and, accordingly, it must not be entirely annulled but merely reduced. This theory, if adopted, will
result in a complete abrogation of Articles 814 and 851 of the Civil Code. If every case of institution of heirs may be made to fall into
the concept of legacies and betterments reducing the bequest accordingly, then the provisions of Articles 814 and 851 regarding
total or partial nullity of the institution, would. be absolutely meaningless and will never have any application at all. And the
remaining provisions contained in said article concerning the reduction of inofficious legacies or betterments would be a surplusage
because they would be absorbed by Article 817. Thus, instead of construing, we would be destroying integral provisions of the Civil
Code.
The destructive effect of the theory thus advanced is due mainly to a failure to distinguish institution of heirs from legacies and
betterments, and a general from a special provision. With reference to article 814, which is the only provision material to the
disposition of this case, it must be observed that the institution of heirs is therein dealt with as a thing separate and distinct from
legacies or betterments. And they are separate and distinct not only because they are distinctly and separately treated in said article
but because they are in themselves different. Institution of heirs is a bequest by universal title of property that is undetermined.
Legacy refers to specific property bequeathed by a particular or special title. ... But again an institution of heirs cannot be taken as a
legacy. [[25]]
The disputed order, we observe, declares the will in question "a complete nullity". Article 854 of the Civil Code in turn merely
nullifies "the institution of heir". Considering, however, that the will before us solely provides for the institution of petitioner as
universal heir, and nothing more, the result is the same. The entire will is null.
Upon the view we take of this case, the order of November 8, 1963 under review is hereby affirmed. No costs allowed. So ordered.

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

SOFIA J. NEPOMUCENO, petitioner,

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

GUTIERREZ, JR., J.:

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

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

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

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

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

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

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

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

The petitioner appealed to the respondent-appellate court.

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

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

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

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

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

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

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

10

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

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

xxx

xxx

xxx

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

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

xxx

xxx

xxx

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

xxx

xxx

xxx

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

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

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

11

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 L19996, April 30, 1965, 13 SCRA 693).

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

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

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

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

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

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

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

12

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.

13

Second. Petitioner herself initiated the presentation of evidence on her alleged ignorance of the true civil status of the testator,
which led private respondents to present contrary evidence.

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

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

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

Private respondents, naturally, presented evidence that would refute the testimony of petitioner on the point.

Sebastian Jugo, younger brother of the deceased testator, testified at length on the meretricious relationship of his brother and
petitioner. (TSN of August 18,1975).

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

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

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

xxx

xxx

xxx

3.

If a review of the evidence must be made nonetheless, then private respondents respectfully offer the following analysis:

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

SECOND: Petitioner was a sweetheart of the deceased testator when they were still both single. That would be in 1922 as Martin
Jugo married respondent Rufina Gomez on November 29, 1923 (Exh. 3). Petitioner married the testator only on December 5, 1952.
There was a space of about 30 years in between. During those 30 years, could it be believed that she did not even wonder why

14

Martin Jugo did not marry her nor contact her anymore after November, 1923 - facts that should impel her to ask her groom before
she married him in secrecy, especially so when she was already about 50 years old at the time of marriage.

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

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

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

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

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

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

SO ORDERED.

HERACIO R. REVILLA, petitioner,

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

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

15

Abad, Bautista & Associates for private respondents.

GRIO-AQUINO, J.:

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

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

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

a)
TRANSFER CERTIFICATE OF TITLE NO. 76620 (not TCT No. 170750-ind.) REGISTRY OF DEEDS FOR THE CITY OF
MANILA

A PARCEL OF LAND (Lot. No. 22 of Block No. 2565 of the Cadastral Survey of the City of Manila, Cadastral Case No. 46, G.L.R.O.
Cadastral Record No. 229) with the buildings and other improvements now found thereon, situated on the SW, line of Calle
Azcarraga, District of Quiapo, . . . containing an area of ONE THOUSAND ONE HUNDRED NINETY THREE SQUARE METERS
AND SEVENTY SQUARE DECIMETERS (1,193.70), more or less, Assessed value P1,834,980.00.

b)
TRANSFER CERTIFICATE OF TITLE NO. 66173 (now TCT No. 170751-ind.) REGISTRY OF DEEDS FOR THE CITY OF
MANILA

A PARCEL OF LAND ( Lot No. 24 of Block No. 2565 of the Cadastral Survey of the City of Manila, Cadastral Case No. 46, G.L.R.O.
Cadastral Record No. 229) with the buildings and improvements now found thereon, situated on the SW. line of Calle Azcarraga;
District of Quiapo. . . . containing an area of SEVEN HUNDRED SQUARE METERS AND SEVENTY SQUARE DECIMETERS
(700.70), MORE OR LESS.

Assessed value P3,297,150.00

c)

TRANSFER CERTIFICATE OF TITLE NO. T-192136 REGISTRY OF DEEDS FOR THE PROVINCE OF BULACAN

16

A parcel of land (Lot 1245-A-6 of the subd. plan (LRC) Psd-177051, being a portion of Lot 1245-A, Psd-11366, LRC Cad. Rec. No.
700), situated in the Barrio of Salacot, Mun. of San Miguel, Prov. of Bulacan, Island of Luzon. . . . containing an area of TEN
THOUSAND (10,000) SQUARE METERS, more or less.

Assessed value P4.000.00

d)

TRANSFER CERTIFICATE OF TITLE NO. T-192137 REGISTRY OF DEEDS FOR THE PROVINCE OF BULACAN

A parcel of land [Lot 1245-A-7 of the subd. plan (LRC) Psd-177051, being a portion of Lot 1245-A, Psd-11366, LRC Cad. Rec. No.
700], situated in the Barrio of Salacot, Mun. of San Miguel, Prov. of Bulacan, Island of Luzon, . . . containing an area of SEVEN
THOUSAND EIGHT HUNDRED NINETY (7,890) SQUARE METERS, more or less.

Assessed value P3,790.00

e)

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

A parcel of land (Lot 1245-A-9 of the subd. plan (LRC) Psd-177051, being a portion of Lot 1245-A, Psd-11366, LRC Cad. Rec. No.
700), situated in the Barrio of Salacot, Municipality of San Miguel, Prov. of Bulacan, . . . containing an area of ONE THOUSAND
FIVE HUNDRED FOURTEEN (1,514) SQUARE METERS, more or less.

Assessed value P4,000.00

f)

TRANSFER CERTIFICATE OF TITLE NO. 22263 REGISTRY OF DEEDS FOR THE PROVINCE OF BULACAN

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

Assessed value P4,190.00

g)

TRANSFER CERTIFICATE OF TITLE NO. T-242301 REGISTRY OF DEEDS FOR THE PROVINCE OF BULACAN

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

17

Assessed value P8,600.00

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

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

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

On November 19, 1981, however, the City Hall of Manila was destroyed by fire. The records of Special Proceeding No. 128828 also
went up in flames. Shortly thereafter, a petition for the reconstitution of the records of Special Proceeding No. 128828 was filed,
and after a proper hearing wherein Don Cayetano testified again, the petition for reconstitution was granted. (Exh. "34"). (pp. 5152, 179, Rollo.)

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

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

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

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

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

18

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

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

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

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

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

ATTY. DAVID

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

xxx

xxx

xxx

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

A Yes, I can.

Q Did you read the contents of this letter?

A Yes, I did.

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

19

A Yes.

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

A More than one month, may be two months.

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

A No, I cannot sign.

xxx

xxx

xxx

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

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

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

ATTY. DAVID

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

xxx

xxx

xxx

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

A (Looking over the four signatures at the back of the envelope) Yes, these are all my signatures.

20

Q And your instructions were to open this envelope . . . "Buksan ito pagkalibing ko."

A Yes, that is right.

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

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

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

ATTY. DAVID

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

A Yes, kung anong nandiyan, siyang ibigay sa husgado. (p. 122, Rollo.)

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

ATTY. LATOSA

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

A Yes, "buksan ito pagkalibing ko."

ATTY. DAVID

Do you want to open this now?

A Yes.

21

Q Do you wish to open this envelope now?

A Yes, I want to open it now.

(p. 23, Rollo.)

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

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

A Yes, Naiintindihan ko po iyon.

Q And you executed this on the 28 of January as appearing . . . 28th of January 1978, as appearing on the 13th page of this last
will and testament?

A Yes.

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

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

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

Q Now, in this envelope there are pictures five pictures in all, will you go over these and tell us if you can remember any of those
persons appearing in the pictures?

A This one, (testator pointing to a person in the picture) is Mr. Dacanay.

22

ATTY. DAVID

May I request that this picture wherein Don Cayetano Revilla identified Atty. Dacanay, be marked as Exhibit "D".

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

A I am that person.

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

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

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

A This one, he is Mr. Dacanay.

Q How about the other one?

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

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

ATTY. DAVID

xxx

xxx

xxx

We are doing this Mr. Revilla because in case there will be an opposition to this last will and testament we can prove that this is the
genuine will and testament and not changed.

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

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

23

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

A None, sir. (p. 135. Rollo.)

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

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

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

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

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

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

24

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

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

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

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

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

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

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

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

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

25

(d)

As to oral examination and other particulars

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

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

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

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

The prevarications on the testimonies of witnesses are not difficult to find especially if we consider that in a second meeting only
with Don Cayetano, Atty. Mendoza would readily be entrusted with the delicate and confidential preparation of a second will,
designed to disinherit his eight nephews and nieces in favor of Heracio, the operator of the bowling alley where witness Mendoza
always play; . . . (p. 36, Decision; p. 179, Records)

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

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

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

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

26

. . . witnesses Co, a practicing dentist was munificent enough not to charge Don Cayetano for two time services and only charged
him the 3rd time.

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

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

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

SO ORDERED.

G.R. No. 93980 June 27, 1994

CLEMENTE CALDE, petitioner,
vs.
THE COURT OF APPEALS, PRIMO AGAWIN and DOMYAAN APED, respondents.
Nestor P. Mondok for petitioner.
Lazaro Padong for private respondents.

PUNO, J.:
This is a petition for review by certiorari of the Decision, dated March 27, 1990, of the Court of appeals 1 in CA-G.R. CV No. 19071,
disallowing probate of the Last Will and Codicil executed by Calibia Lingdan Bulanglang, who died on March 20, 1976.
The records show that decedent left behind nine thousand pesos (P9,000.00) worth of property. She also left a Last Will and
Testament, dated October 30, 1972, and a Codicil thereto, dated July 24, 1973. Both documents contained the thumbmarks of
decedent. They were also signed by three (3) attesting witnesses each, and acknowledged before Tomas A. Tolete, then the
Municipal Judge and Notary Public Ex-Officio of Bauko, Mt. Province.
Nicasio Calde, the executor named in the will, filed a Petition for its allowance before the RTC of Bontoc, Mt. Province, Br. 36. 2 He
died during the pendency of the proceedings, and was duly substituted by petitioner. Private respondents, relatives of decedent,
opposed the Petitioner filed by Calde, on the following grounds: that the will and codicil were written in Ilocano, a dialect that
decedent did not know; that decedent was mentally incapacitated to execute the two documents because of her advanced age,
illness and deafness; that decedents thumbmarks were procured through fraud and undue influence; and that the codicil was not
executed in accordance with law.
On June 23, 1988, the trial court rendered judgment on the case, approving and allowing decedents will and its codicil. The
decision was appealed to and reversed by the respondent Court of Appeals. It held:

27

. . . (T)he will and codicil could pass the safeguards under Article 805 of the New Civil Code but for one crucial
factor of discrepancy in the color of ink when the instrumental witnesses affixed their respective signatures.
When subjected to cross-examination, Codcodio Nacnas as witness testified as follows:
Q And all of you signed on the same table?
A Yes, sir.
Q And when you were all signing this Exhibit "B" and "B-1", Exhibit "B" and "B-1" which is the
testament was passed around all of you so that each of you will sign consecutively?
A Yes, sir.
Q Who was the first to sign?
A Calibia Lingdan Bulanglang.
Q After Calibia Lingdan Bulanglang was made to sign I withdraw the question. How did
Calibia Lingdan Bulanglang sign the last will and testament?
A She asked Judge Tolete the place where she will affix her thumbmark so Judge Tolete
directed her hand or her thumb to her name.
Q After she signed, who was the second to sign allegedly all of you there present?
A Jose Becyagen.
Q With what did Jose Becyagen sign the testament, Exhibit "B" and "B-1"?
A Ballpen.
Q And after Jose Becyagen signed his name with the ballpen, who was the next to sign?
A Me, sir.
Q And Jose Becyagen passed you the paper and the ballpen, Exhibit "B" and "B-1" plus the
ballpen which used to sign so that you could sign your name, is that correct?
A Yes, sir.
Q And then after you signed, who was the next to sign the document, Exhibit "B" and "B-1"?
A Hilario Coto-ong.
Q So you passed also to Hilario Coto-ong the same Exhibit "B" and "B-1" and the ballpen so
that he could sign his name as witness to the document, is it not?
A Yes, sir.
Q And that is the truth and you swear that to be the truth before the Honorable Court?
ATTY. DALOG:
He already testified under oath, Your Honor.
COURT:

28

Witness may answer

A Yes, sir.
For his part, Obanan Ticangan likewise admitted during cross-examination in regard to the codicil that:
Q When you signed Exhibit "D" and "D-1", did you all sign with the same ballpen?
A One.
Such admissions from instrumental witnesses are indeed significant since they point to no other conclusion than
that the documents were not signed by them in their presence but on different occasions since the same ballpen
used by them supposedly in succession could not have produced a different color from blue to black and from
black to blue. In fact, the attestation clause followed the same pattern. The absurd sequence was repeated when
they signed the codicil, for which reason, We have no other alternative but to disallow the Last Will and Codicil.
Verily, if the witnesses and testatrix used the same ballpen, then their signatures would have been in only one
color, not in various ones as shown in the documents. Moreover, the signatures, in different colors as they are,
appear to be of different broadness, some being finer than the others, indicating that, contrary to what the
testamentary witnesses declared on the witness stand, not only one ballpen was used, and, therefore, showing
that the documents were not signed by the testatrix and instrumental witnesses in the presence of one another. . .
" (Rollo, pp. 44-46. Citations omitted.)
Petitioner unsuccessfully moved for reconsideration of the impugned Decision. His motion was denied by the respondent court in
its Order, dated May 24, 1990.
Thus, this appeal by petitioner who now puts in issue the correctness of the respondent courts conclusion that both decedents will
and codicil were not subscribed by the witnesses in the presence of the testator and of one another, contrary to the requirements of
Article 805 of the Civil Code. He contends that:
1. THE HONORABLE COURT OF APPEALS HAS DECIDED A QUESTION OF SUBSTANCE IN A WAY NOT IN
ACCORD WITH LAW OR WITH THE APPLICABLE DECISION OF THE SUPREME COURT BY CONCLUDING
BASED ON PURE SPECULATION OR SURMISES AND WITHOUT REGARD TO THE TESTIMONY OF JUDGE
TOLETE WHICH IS AN EVIDENCE OF SUBSTANCE THAT THE WILL AND THE CODICIL OF THE LATE
CALIBIA LINGDAN BULANGLANG WERE SIGNED BY HER AND BY HER INSTRUMENTAL WITNESSES ON
DIFFERENT OCCASIONS;
2. THE HONORABLE COURT OF APPEALS HAS DECIDED A QUESTION OF SUBSTANCE IN A WAY NOT IN
ACCORD WITH LAW OR WITH THE APPLICABLE DECISIONS OF THE SUPREME COURT BY
DISREGARDING THE PROBATIVE VALUE OF THE ATTESTATION CLAUSES OF THE LAST WILL AND
TESTAMENT AND THE CODICIL OF THE LATE CALIBIA LINGDAN BULANGLANG.
The petition must fail.
The question in the case at bench is one of fact: whether or not, based on the evidence submitted, respondent appellate court erred
in concluding that both decedents Last Will and Testament, and its Codicil were subscribed by the instrumental witnesses on
separate occasions. As a general rule, factual findings of the Court of Appeals are considered final and conclusive, and cannot be
reviewed on appeal to this court. In the present instance, however, there is reason to make an exception to that rule, since the
finding of the respondent court is contrary to that of the trial court, viz.:
. . . (Private respondents) pointed out however, that the assertions of petitioners witnesses are rife with
contradictions, particularly the fact that the latters signatures on the documents in issue appear to have been
written in ballpens of different colors contrary to the statements of said witnesses that all of them signed with
only one ballpen. The implication is that the subscribing witnesses to the Will and Codicil, and the testatrix did
not simultaneously sign each of the documents in one sitting but did it piecemeal a violation of Art. 805 of the
Code. This conclusion of the (private respondents) is purely circumstantial. From this particular set of facts,
numerous inferences without limits can be drawn depending on which side of the fence one is on. For instance,
considering the time interval that elapsed between the making of the Will and Codicil, and up to the filing of the
petition for probate, the possibility is not remote that one or two of the attesting witnesses may have forgotten
certain details that transpired when they attested the documents in question . . . (Rollo, pp. 36-37.)

29

A review of the facts and circumstances upon which respondent Court of Appeals based its impugned finding, however, fails to
convince us that the testamentary documents in question were subscribed and attested by the instrumental witnesses during a
single occasion.
As sharply noted by respondent appellate court, the signatures of some attesting witnesses in decedents will and its codicil were
written in blue ink, while the others were in black. This discrepancy was not explained by petitioner. Nobody of his six (6) witnesses
testified that two pens were used by the signatories on the two documents. In fact, two (2) of petitioners witnesses even testified
that only one (1) ballpen was used in signing the two testamentary documents.
It is accepted that there are three sources from which a tribunal may properly acquire knowledge for making its decisions, namely:
circumstantial evidence, testimonial evidence, and real evidence or autoptic proference. Wigmore explains these sources as follows:
If, for example, it is desired to ascertain whether the accused has lost his right hand and wears an iron hook in
place of it, one source of belief on the subject would be the testimony of a witness who had seen the arm; in
believing this testimonial evidence, there is an inference from the human assertion to the fact asserted. A second
source of belief would be the mark left on some substance grasped or carried by the accused; in believing this
circumstantial evidence, there is an inference from the circumstance to the thing producing it. A third source of
belief remains, namely, the inspection by the tribunal of the accuseds arm. This source differs from the other two
in omitting any step of conscious inference or reasoning, and in proceeding by direct self-perception, or autopsy.
It is unnecessary, for present purposes, to ask whether this is not, after all, a third source of inference, i.e., an
inference from the impressions or perceptions of the tribunal to the objective existence of the thing perceived.
The law does not need and does not attempt to consider theories of psychology as to the subjectivity of knowledge
or the mediateness of perception. It assumes the objectivity of external nature; and, for the purposes of judicial
investigation, a thing perceived by the tribunal as existing does exist.
There are indeed genuine cases of inference by the tribunal from things perceived to other things unperceived
as, for example, from a persons size, complexion, and features, to his age; these cases of a real use of inference
can be later more fully distinguished . . . But we are here concerned with nothing more than matters directly
perceived for example, that a person is of small height or is of dark complexion; as to such matters, the
perception by the tribunal that the person is small or large, or that he has a dark or light complexion, is a mode of
acquiring belief which is independent of inference from either testimonial or circumstantial evidence. It is the
tribunals self-perception, or autopsy, of the thing itself.
From the point of view of the litigant party furnishing this source of belief, it may be termed Autoptic
Proference. 3 (Citations omitted.)
In the case at bench, the autoptic proference contradicts the testimonial evidence produced by petitioner. The will and its codicil,
upon inspection by the respondent court, show in black and white or more accurately, in black and blue that more than one
pen was used by the signatories thereto. Thus, it was not erroneous nor baseless for respondent court to disbelieve petitioners
claim that both testamentary documents in question were subscribed to in accordance with the provisions of Art. 805 of the Civil
Code.
Neither did respondent court err when it did not accord great weight to the testimony of Judge Tomas A. Tolete. It is true that his
testimony contains a narration of how the two testamentary documents were subscribed and attested to, starting from decedents
thumbmarking thereof, to the alleged signing of the instrumental witnesses thereto in consecutive order. Nonetheless, nowhere in
Judge Toletes testimony is there any kind of explanation for the different-colored signatures on the testaments.
IN VIEW WHEREOF, the instant Petition for Review is DENIED. The Decision of respondent Court of Appeals, dated March 27,
1988, in CA-G.R. CV No. 19071 disallowing the Last Will and Testament, and the Codicil thereto, of the decedent Calibia Lingdan
Bulanglang is AFFIRMED IN TOTO. Costs against petitioner.
SO ORDERED.

TESTATE ESTATE OF THE LATE GREGORIO VENTURA: MARIA VENTURA, executrix-appellant, MIGUEL
VENTURA and JUANA CARDOVA, Heirs,
vs.

30

MERCEDES VENTURA, and her husband PEDRO D. CORPUZ, and GREGORIA VENTURA and her husband
EXEQUIEL VICTORIO, oppositors-appellees.

BARREDO, J.:
Appeal from the orders entered by the Court of First Instance of Nueva Ecija (Guimba Branch) in Special Proceedings No. 812,
Testate Estate of the Late Gregorio Ventura, on February 26, 1964 and June 11, 1964 granting the motion of appellee Mercedes
Ventura to annul the institution of heirs made in the will of the deceased, which was probated during his lifetime, upon the ground
that said appellee and her sister Gregoria Ventura who have been found in the decision of another court in a corresponding case,
already final, to be legitimate children and compulsory heirs of said deceased, were preterited and deprived of their share in the
inheritance. Appellant denies that the decision referred to has already become final and executory.
On December 2, 1952, herein appellee Gregoria Ventura filed an action in the Court of First Instance of Nueva Ecija, Branch I,
against the other appellee herein Mercedes Ventura, who later joined cause with Gregoria, and Gregorio Ventura. Gregoria and
Mercedes claimed that they are the legitimate children of Gregorio Ventura and his wife Paulina Simpliciano, who died in 1943, and
asked that one-half of the properties described in the complaint be declared as the share of their mother in the conjugal
partnership, with them as the only forced heirs of their mother Paulina. The case was docketed as Civil Case No. 1064.
Later on, the same properties invoked in the just mentioned case became the subject of another action, Civil Case No. 1476, also of
the Court of First Instance of Nueva Ecija, Branch I, filed by Alipio, Eufracia and Juliana, all surnamed Simpliciano, against
Gregorio Ventura and the two sisters, Mercedes and Gregoria. They alleged that as the only children of Modesto Simpliciano, sole
brother of Paulina, they, instead of Mercedes and Gregoria, whom they claimed are adulterous children of Paulina with another
man, Teodoro Ventura, and as such are not entitled to inherit from her under the Old Civil Code, are the ones who should be
declared as inheritors of the share of Paulina in the conjugal partnership with Gregorio.
In his answer to the above complaints, Gregorio Ventura took the position that Mercedes and Gregoria are not his children because
they were born out of the adulterous relationship between Paulina who had left their conjugal home and Teodoro Ventura with
whom she lived for more than ten years.
In Civil Case No. 1064, Gregorio Ventura filed a counterclaim against Mercedes and her husband, Pedro Corpuz, seeking the
reconveyance from them of properties covered by Transfer Certificates of Title Nos. T-1102, T-1212, T- 1213 and T-1214 of the Office
of the Register of Deeds of Nueva Ecija.
Meanwhile, on December 14, 1953, Gregorio Ventura filed a petition for the probate of his will and thus gave rise to herein subject
proceeding, Special Proceedings No. 812. In due course, said will was admitted to probate on January 14, 1954. This admission
became final.
Gregorio died on September 26, 1955, and on October 17, 1955, pursuant to his will, Maria Ventura was appointed executrix, in
which capacity, she is appellant in this case.
On November 4, 1959, after a joint hearing of Civil Cases Nos. 1064 and 1476, the court rendered its decision, the dispositive part of
which reads:
WHEREFORE, judgment is hereby rendered declaring Mercedes Ventura and Gregoria Ventura to be the
legitimate daughters of Paulina Simpliciano and Greogorio Ventura; declaring that as such legitimate daughters
of Paulina Simpliciano they are entitled to 1/2 of the properties described in par. six of the complaint; ... The
parties are urged to arrive at an amicable partition of the properties herein adjudicated within twenty days from
the receipt of this decision. Upon their failure to do so, the Court shall appoint commissioners to divide the
properties in accordance with the terms of this decision. Without pronouncement as to costs. (Page 36, Record
on Appeal.)
Upon motion for reconsideration, this decision was amended by reducing the amount of the monetary judgment against Mercedes
and her husband to P97,000.
Maria Ventura, who, as executrix of the estate of Gregorio, was substituted for him, tried on December 8, 1959 (also; on December
24, 1959) to appeal from the above decision to this Court (G.R. No. L-18283) but said appeal was dismissed for late payment of the
docketing fees and the estimated cost of printing this record on appeal. Subsequently, or, on October 8, 1962 and , October 31,
1962, Executrix Maria filed motions for the execution, alleging that "Said decision, as amended, had long been final and executory."

31

Earlier, or, on July 14, 1962, Mercedes filed, thru counsel, Atty. Arturo M. Tolentino, the "Motion to Annul Provisions of Will" that
spawned the present controversy. The motion reads as follows:
MOTION TO ANNUL PROVISIONS
OF WILL
COMES now the undersigned counsel, for MERCEDES VENTURA and to this Honorable Court respectfully
states:
1. That on November 4,1959, in Civil Cases Nos. 1064 and 1476, entitled "Gregoria Ventura and Exequiel Victoria
plaintiffs, versus Gregorio Ventura, Mercedes Ventura and Pedro Corpuz, as husband of Mercedes Ventura", the
Honorable Court of First Instance of Nueva Ecija, through the Honorable Judge Jose N. Leuterio, rendered a
decision the dispositive portion of which was originally as follows:
WHEREFORE, judgment is hereby rendered declaring Mercedes Ventura and Gregoria Ventura to be the
legitimate daughters of Paulina Simpliciano and Gregorio Ventura; declaring that as such legitimate daughters of
Paulina Simpliciano they are entitled to 1/2 of the properties described in paragraph 6 of the complaint; ordering
the defendant Maria Ventura, as administratrix of the estate of Gregorio Ventura to pay to Mercedes and
Gregorio Ventura the amount of P19,074.09 which shall be divided equally between Mercedes and Gregoria
Ventura; declaring that Emiliano Ventura is not the son of Paulina Simpliciano and therefore, not entitled to
share in the estate of Paulina Simpliciano; declaring that Mercedes Ventura and Pedro D. Corpuz are the
exclusive owners of the properties described in the certificates of Title Nos. T-1102, T-1212, T-1213, T-1214,
Exhibits 32, 33, 34 and 35, respectively; ordering the said Mercedes Ventura and Pedro D. Corpuz to pay to the
conjugal partnership of Gregorio Ventura and Paulina Simpliciano the sum of P100,000.00 one-half of which
shall pertain to the estate of Gregorio Ventura and the other half to the estate of Paulina Simpliciano to whom
Mercedes and Gregoria have succeeded, to be divided between Mercedes and Gregoria Ventura in equal parts;
dismissing Civil Case 1476. The parties are urged to arrive at an amicable partition of the properties herein
adjudicated within twenty days from the receipt of this decision. Upon their failure to do so, the Court shall
appoint commissioners to divide the properties in accordance with the terms of this decision. Without
pronouncement as to costs.
2. Subsequently, a Motion to amend the above dispositive portion with respect to the sum of P100,000.00, which
Mercedes Ventura and Pedro D. Corpuz are required to pay to the conjugal partnership of Gregorio Ventura and
Paulina Simpliciano, was filed, and the Honorable Court amended its decision reducing the said amount to
P97,000.00, under an Order, dated December 21, 1959.
3. The foregoing decision of the Honorable Court of First Instance of Nueva Ecija has long become final.
4. That in the Will probated by this Honorable Court in the above-entitled case, Mercedes Ventura and Gregoria
Ventura, legitimate children of the deceased Gregorio Ventura with Paulina Simpliciano, have been omitted or
preterited.
5. That under Article 854 of the Civil Code, "The preterition or omission of one, some, or all of the compulsory
heirs in the direct line, whether living at the time of the execution of the will or born after the death of the
testator, shall annul the institution of heir; but the devises and legacies shall be valid insofar as they are not
inofficious".
6. That pursuant to the above-quoted provisions of Article 854 of the Civil Code, all of the provisions of the
probated will designating heirs are null and void, as a result intestacy follows, unless there are devisees and
legacies which are not inofficious which would stand to such extent that they are not inofficious.
IN VIEW OF THE FOREGOING, it is respectfully prayed that this Honorable Court declares null and void all the
provisions of the Will probated in the above- entitled case designating heirs to any portion of the estate of the
deceased Gregorio Ventura, and to declare MERCEDES VENTURA and GREGORIA VENTURA as the sole
legitimate children of the deceased Gregorio Ventura entitled to his estate by the rules of intestacy, without
prejudice to the rights of any other compulsory heir who may be entitled to any portion of the estate.
Manila, for Cabantuan City, July 14, 1962. (Pp. 10-14, Record on Appeal.)

32

This motion was opposed first, by Miguel Ventura and Juana Cardona, who were given shares in the will of Gregorio, and later by
appellant Maria. The main ground of this latter opposition was that the decision in Civil Cases Nos. 1064 and 1476 was not yet final,
notwithstanding the dismissal of her appeal. She contended that since the action filed by Mercedes and Gregoria was for partition,
the decision of the court of November 4, 1959, which merely "urged" the parties "to arrive at an amicable settlement of the
properties herein adjudicated within twenty days from receipt of this decision," and "upon their failure to do so, the Court shall
appoint commissioners to divide the properties in accordance with the terms of this decision" left something else to be done and
was, therefore, interlocutory and not final, citing 1 Moran, Rules of Court, 1950 ed. 810 and the cases therein cited.
On February 26, 1964, the trial court issued the first assailed order thus:
ORDER
This refers to the "Motion to Annul Provisions of Will" filed by Mercedes Ventura thru counsel, Atty. Arturo M.
Tolentino, dated July 14, 1962.
After a careful perusal of said motion, conjointly with the supporting memorandum therefor filed by Gregoria
Ventura dated November 4, 1963; the opposition thereto filed by Miguel Ventura and Juana Cardona, dated July
26, 1962, as well as the opposition filed by executrix Maria Ventura, dated October 30, 1963, and the rejoinder
thereto of the spouses Gregoria Ventura and Exequiel Victoria dated November 29, 1963 all filed thru their
respective counsel, the Court finds said motion meritorious and hereby grants the same, it appearing that the
compulsory heirs Mercedes Ventura and Gregoria Ventura, legitimate children of the deceased Gregoria Ventura
and Paulina Simpliciano, are indeed preterited.
WHEREFORE, the institution of heirs in the will, Exhibit D-1, is hereby annulled. However, the devises given in
favor of Clarita Ventura and Trinidad Ventura, as set out in paragraph 6 of the will, and in favor of Agapito Alipio,
Juliana and Eufracia, all surnamed Simpliciano, as set forth in par. 7 thereof, shall remain valid insofar as they
are not inofficious.
SO ORDERED. (Pp. 30-31, Rec. on Appeal.)
Maria moved for reconsideration, insisting on her theory of non-finality of the decision and adding as authority in support of her
pose the ruling in Fuentebella vs. Carrascoso, G. R. No. 48102, May 27, 1942, which reversed the doctrines laid down in Africa vs.
Africa, 42 Phil. 934 and Villanueva vs. Capistrano, 49 Phil. 460, relied upon by appellees.
On June 11, 1964, the other impugned order was entered as follows:
ORDER
To the order of this Court dated February 26, 1964 in which the institution of heirs in the will, Exhibit D-1 was
annulled upon motion of Gregoria Ventura and Mercedes Ventura who appear to have prevailed by this Court's
judgment in Civil Cases Nos. 1064 and 1476 in which, among other things, the said Mercedes and Gregoria
Ventura were declared as legitimate daughters of Paulina Simpliciano and Gregorio Ventura and entitled to onehalf of the properties of the said spouses, a motion for reconsideration was filed by the executrix on the ground
that the same is premature.
Although the properties subject matter of Civil Cases Nos. 1064 and 1476 have not been actually partitioned in
accordance with the said decision, but such partition did not, and could not, delay the finality of the judgment in
such cases, considering that the partition is purely mechanical and all that the parties need do was to convoke the
board of commissioners and to undertake the actual partition. The main cause of action, vis., the declaration of
legitimacy of Mercedes and Gregoria Ventura, did not in any way depend on such partition, hence, after the lapse
of the reglementary period within which to appeal the case, the finding of this Court respecting such legitimacy
has now become final.
UPON THE FOREGOING CONSIDERATIONS, this Court denied the motion for reconsideration filed by the
executrix Maria Ventura on March 9, 1964.
SO ORDERED. (Pp. 64-66, Rec. on Appeal.)
In her brief, appellant assigns the following four errors allegedly committed by the probate court:
ASSIGNMENT OF ERRORS

33

I
THE LOWER COURT ERRED IN NOT DECLARING THAT THE DECISION IN CIVIL CASES NOS. 1064 and
1476 ORDERING THE PARTITION OF THE PROPERTIES DESCRIBED IN THE COMPLAINT IS NOT AS YET
FINAL AND EXECUTORY, THERE BEING SOMETHING MORE TO BE DONE IN THE TRIAL COURT FOR
THE COMPLETE DISPOSITION OF THE CASES, AND, THEREFORE, IT IS PREMATURE TO ANNUL THE
INSTITUTION OF HEIRS IN THE WILL OF GREGORIO VENTURA, EXHIBIT D-1.
II
THE LOWER COURT ERRED IN ANNULLING THE INSTITUTION OF HEIRS IN THE WILL OF GREGORIO
VENTURA, EXHIBIT D-1.
III
THE LOWER COURT ERRED IN DECLARING THAT "ALTHOUGH THE PROPERTIES SUBJECT MATTER OF
CIVIL CASES NOS. 1064 AND 1476 HAVE NOT BEEN ACTUALLY PARTITIONED IN ACCORDANCE WITH
THE DECISION, BUT SUCH PARTITION DID NOT, AND COULD NOT, DELAY IN THE FINALITY OF THE
JUDGMENT IN SUCH CASES, CONSIDERING THAT THE PARTITION IS PURELY MECHANICAL AND ALL
THAT THE PARTIES NEED DO WAS TO CONVOKE THE BOARD OF COMMISSIONERS AND TO
UNDERTAKE THE ACTUAL PARTITION."
IV
THE LOWER COURT ERRED IN HOLDING THAT THE DECLARATION OF LEGITIMACY OF MERCEDES
AND GREGORIA VENTURA, IN CIVIL CASES NOS., 1064 AND 1476, DID NOT IN ANY WAY DEPEND ON
SUCH PARTITION, HENCE, AFTER THE LAPSE OF THE REGLEMENTARY PERIOD WITHIN WHICH TO
APPEAL THE CASE, THE FINDINGS OF THE COURT RESPECTING SUCH LEGITIMACY BECAME FINAL.
(Pp- 1-3, Brief for Executrix-Appellant.)
Principal additional authority relied upon by appellant in maintaining that the decision in question has not yet become final
is Zaldariaga vs. Enriquez, et al., 1 SCRA 1188.
As may be noted, the issues discussed by the parties in their respective briefs could require a renewed deliberation on the variance
in opinions among the members of the Court which culminated in the majority ruling in Miranda vs. Court of Appeals, et al., 71
SCRA 295. It appears, however, that an important development in the instant case should make it unnecessary for Us to reexamine
in this case said majority ruling.
On February 12,1975, a motion to dismiss the present appeal on the ground that it has become moot and academic, was filed by
Atty. Tolentino, as counsel for appellees Mercedes Ventura and Pedro Corpuz. The motion states that:
2. That on October 10, 1968, the Commissioners appointed by the lower court to partition the properties subjectmatter of Civil Cases Nos. 1064 and 1476 submitted their Amended Commissioners' Report for the partition of
the conjugal estate of the late spouses, Gregorio Ventura and Paulina Simpliciano, and the partition of the estate
of the late Paulina Simpliciano between Gregoria Ventura and Mercedes Ventura.
3. The Commissioners, for the information of the Court, were: Emmanuel Mariano, husband of and representing
the executrix-appellant, Maria Ventura; Daniel Victoria son of and representing Gregoria Ventura; and Pedro D.
Corpuz, husband of and representing Mercedes Ventura.
4. That on October 22, 1968, the Court before whom Civil Cases G.R. Nos. 1064 and 1476 were pending, issued an
Order reading as follows:
Finding the Commissioners' Report, dated October 10, 1968, duly signed by the three
Commissioners in accordance with law and not against public policy and morals, the same is
hereby approved. Let the said Commissioners' Report be the laws between the parties with
respect to the partition sought for the parties are hereby enjoined to abide 6y all the terms and
stipulations stated and provided in said Report.
These cases are hereby declared closed and terminated without any pronouncement as to costs.

34

SO ORDERED.
5. That no appeal was made from said order, which is now final and executory. (Pp. 2-3, Motion in record.)
On March 6, 1975, appellant Maria Ventura, thru new counsel, Atty. Inocencio B. Garampil, filed an opposition contending that
"there is no basis in alleging that the appeal (in this case) has become moot and academic" just because the partition in Civil Cases
Nos. 1064 and 1476 has already been done with approval of the court which has not been appealed. But We find this posture of
appellant inconsistent with the position taken by her in the court below in her motion for reconsideration of the order of February
26, 1964, where she stated:
Is the decision of the Court in Civil Cases Nos. 1064 and 1476 dated November 4, 1959, as amended, the
dispositive portion of which is quoted above, already final and executory?
If it is already final and executory then the findings of the Court 'declaring Mercedes Ventura and Gregoria
Ventura to be the legitimate daughters of Paulina Simpliciano and Gregorio Ventura' is already an established
fact, and, therefore, Mercedes and Gregoria may properly ask for the annulment of the institution of heirs in the
will, Exh. D-1, and this Court would be correct in annulling the institution of heirs in the will Exh. D-1 for 'the
compulsory heirs Mercedes Ventura and Gregoria Ventura, legitimate children of the deceased Gregorio Ventura
and Paulina Simpliciano, are indeed preterited'(order under reconsideration).
On the other hand, if said decision of November 4, 1959 is not yet final and executory, or if it is merely
interlocutory, because there is something more to be done for the complete disposition of the case, that is, the
making of the partition by the duly appointed three (3) commissioners, and the action of the court upon such
report, and that the order or judgment of the court approving such report is the final order or judgment, it
follows that the findings of the court 'declaring Mercedes Ventura and Gregoria Ventura to be the legitimate
daughters of Paulina Simpliciano and Gregorio Ventura', is interlocutory and not final. The executrix shall appeal
said decision of November 4, 1959 in due time.
If said decision of November 4, 1959 is not as yet final, it is, therefore, premature for this Court to order the
annulment of the institution of heirs in the will Exh. D-1, on the ground that said Mercedes and Gregoria were
preterited. If when we shall appeal said decision of November 4, 1959 and surely we shall appeal and that if the
higher court shall find Mercedes and Gregoria to, be the adulterous children of Paulina Simpliciano and her
paramour Teodoro Ventura, as contended by Gregorio Ventura, then Mercedes and Gregoria are foreigners to
Gregorio Ventura, they are not his daughters, and consequently they could not be said to be "preterited" in
Gregorio Ventura's will, Exh. D-1, and clearly the order of this Court dated February 26, 1964, is manifestly
premature. Let us wait for the finality of the decision of November 4, 1959 entered in Cases Nos. 1064 and 1476.
(Pp. 38-40, Rec. on Appeal.)
And so, acting on appellees' motion to dismiss appeal, it is Our considered opinion that the decision in Civil Cases Nos. 1064 and
1476 declaring that appellees Mercedes and Gregoria Ventura are the legitimate children of the deceased Gregorio Ventura and his
wife, Paulina Simpliciano, and as such are entitled to the annulment of the institution of heirs made in the probated will of said
deceased became final and executory upon the finality of the order approving the partition directed in the decision in question. We
need not indulge in any discussion as to whether or not, as of the time the orders here in question were issued by the trial court said
decision had the nature of an interlocutory order only. To be sure, in the ease of Miranda, aforementioned, the opinion of the
majority of the Court may well be invoked against appellant's pose. In any event, even if the Court were minded to modify again
Miranda and go back to Fuentebella and Zaldariaga, - and it is not, as of now - there can be no question that the approval by the
trial court in Civil Cases Nos. 1064 and 1476 of the partition report of the commissioners appointed for the purpose, one of whom,
Emmanuel Mariano, is the husband of appellant, put a definite end to those cases, leaving nothing else to be done in the trial court.
That order of approval is an appealable one, and inasmuch as no appeal has been taken from the same, it is beyond dispute that the
decision in controversy has already become final and executory in all respects. Hence, the case at bar has become moot and
academic.
IN VIEW OF ALL THE FOREGOING, the appeal of Executrix-Appellant Maria Ventura in this case is hereby dismissed. No costs in
this instance.

G.R. No. 72706 October 27, 1987

CONSTANTINO C. ACAIN, petitioner,
vs.

35

HON. INTERMEDIATE APPELLATE COURT (Third Special Cases Division), VIRGINIA A. FERNANDEZ and
ROSA DIONGSON, respondents.

PARAS, J.:
This is a petition for review on certiorari of the decision * of respondent. Court of Appeals in AC-G.R. SP No. 05744 promulgated on
August 30, 1985 (Rollo, p. 108) ordering the dismissal of the petition in Special Proceedings No, 591 ACEB and its Resolution
issued on October 23, 1985 (Rollo, p. 72) denying respondents' (petitioners herein) motion for reconsideration.
The dispositive portion of the questioned decision reads as follows:
WHEREFORE, the petition is hereby granted and respondent Regional Trial Court of the Seventh Judicial
Region, Branch XIII (Cebu City), is hereby ordered to dismiss the petition in Special Proceedings No. 591 ACEB
No special pronouncement is made as to costs.
The antecedents of the case, based on the summary of the Intermediate Appellate Court, now Court of Appeals, (Rollo, pp. 108-109)
are as follows:
On May 29, 1984 petitioner Constantino Acain filed on the Regional Trial Court of Cebu City Branch XIII, a petition for the probate
of the will of the late Nemesio Acain and for the issuance to the same petitioner of letters testamentary, docketed as Special
Proceedings No. 591 ACEB (Rollo, p. 29), on the premise that Nemesio Acain died leaving a will in which petitioner and his
brothers Antonio, Flores and Jose and his sisters Anita, Concepcion, Quirina and Laura were instituted as heirs. The will allegedly
executed by Nemesio Acain on February 17, 1960 was written in Bisaya (Rollo, p. 27) with a translation in English (Rollo, p. 31)
submi'tted by petitioner without objection raised by private respondents. The will contained provisions on burial rites, payment of
debts, and the appointment of a certain Atty. Ignacio G. Villagonzalo as the executor of the testament. On the disposition of the
testator's property, the will provided:
THIRD: All my shares that I may receive from our properties. house, lands and money which I earned jointly
with my wife Rosa Diongson shall all be given by me to my brother SEGUNDO ACAIN Filipino, widower, of legal
age and presently residing at 357-C Sanciangko Street, Cebu City. In case my brother Segundo Acain predeceased me, all the money properties, lands, houses there in Bantayan and here in Cebu City which constitute
my share shall be given to me to his children, namely: Anita, Constantino, Concepcion, Quirina, laura, Flores,
Antonio and Jose, all surnamed Acain.
Obviously, Segundo pre-deceased Nemesio. Thus it is the children of Segundo who are claiming to be heirs, with Constantino as the
petitioner in Special Proceedings No. 591 ACEB
After the petition was set for hearing in the lower court on June 25, 1984 the oppositors (respondents herein Virginia A. Fernandez,
a legally adopted daughter of tile deceased and the latter's widow Rosa Diongson Vda. de Acain filed a motion to dismiss on the
following grounds for the petitioner has no legal capacity to institute these proceedings; (2) he is merely a universal heir and (3) the
widow and the adopted daughter have been pretirited. (Rollo, p. 158). Said motion was denied by the trial judge.
After the denial of their subsequent motion for reconsideration in the lower court, respondents filed with the Supreme Court a
petition for certiorari and prohibition with preliminary injunction which was subsequently referred to the Intermediate Appellate
Court by Resolution of the Court dated March 11, 1985 (Memorandum for Petitioner, p. 3; Rollo, p. 159).
Respondent Intermediate Appellate Court granted private respondents' petition and ordered the trial court to dismiss the petition
for the probate of the will of Nemesio Acain in Special Proceedings No. 591 ACEB
His motion for reconsideration having been denied, petitioner filed this present petition for the review of respondent Court's
decision on December 18, 1985 (Rollo, p. 6). Respondents' Comment was filed on June 6, 1986 (Rollo, p. 146).
On August 11, 1986 the Court resolved to give due course to the petition (Rollo, p. 153). Respondents' Memorandum was filed on
September 22, 1986 (Rollo, p. 157); the Memorandum for petitioner was filed on September 29, 1986 (Rollo, p. 177).
Petitioner raises the following issues (Memorandum for petitioner, p. 4):

36

(A) The petition filed in AC-G.R. No. 05744 for certiorari and prohibition with preliminary injunction is not the
proper remedy under the premises;
(B) The authority of the probate courts is limited only to inquiring into the extrinsic validity of the will sought to
be probated and it cannot pass upon the intrinsic validity thereof before it is admitted to probate;
(C) The will of Nemesio Acain is valid and must therefore, be admitted to probate. The preterition mentioned in
Article 854 of the New Civil Code refers to preterition of "compulsory heirs in the direct line," and does not apply
to private respondents who are not compulsory heirs in the direct line; their omission shall not annul the
institution of heirs;
(D) DICAT TESTATOR ET MERIT LEX. What the testator says will be the law;
(E) There may be nothing in Article 854 of the New Civil Code, that suggests that mere institution of a universal
heir in the will would give the heir so instituted a share in the inheritance but there is a definite distinct intention
of the testator in the case at bar, explicitly expressed in his will. This is what matters and should be in violable.
(F) As an instituted heir, petitioner has the legal interest and standing to file the petition in Sp. Proc. No. 591
ACEB for probate of the will of Nemesio Acain and
(G) Article 854 of the New Civil Code is a bill of attainder. It is therefore unconstitutional and ineffectual.
The pivotal issue in this case is whether or not private respondents have been pretirited.
Article 854 of the Civil Code provides:
Art. 854. The preterition or omission of one, some, or all of the compulsory heirs in the direct line, whether living
at the time of the execution of the will or born after the death of the testator, shall annul the institution of heir;
but the devisees and legacies shall be valid insofar as they are not; inofficious.
If the omitted compulsory heirs should die before the testator, the institution shall he effectual, without prejudice
to the right of representation.
Preterition consists in the omission in the testator's will of the forced heirs or anyone of them either because they are not
mentioned therein, or, though mentioned, they are neither instituted as heirs nor are expressly disinherited (Nuguid v. Nuguid, 17
SCRA 450 [1966]; Maninang v. Court of Appeals, 114 SCRA 478 [1982]). Insofar as the widow is concerned, Article 854 of the Civil
Code may not apply as she does not ascend or descend from the testator, although she is a compulsory heir. Stated otherwise, even
if the surviving spouse is a compulsory heir, there is no preterition even if she is omitted from the inheritance, for she is not in
the direct line. (Art. 854, Civil code) however, the same thing cannot be said of the other respondent Virginia A. Fernandez, whose
legal adoption by the testator has not been questioned by petitioner (.Memorandum for the Petitioner, pp. 8-9). Under Article 39 of
P.D. No. 603, known as the Child and Youth Welfare Code, adoption gives to the adopted person the same rights and duties as if he
were a legitimate child of the adopter and makes the adopted person a legal heir of the adopter. It cannot be denied that she has
totally omitted and preterited in the will of the testator and that both adopted child and the widow were deprived of at least their
legitime. Neither can it be denied that they were not expressly disinherited. Hence, this is a clear case of preterition of the legally
adopted child.
Pretention annuls the institution of an heir and annulment throws open to intestate succession the entire inheritance including "la
porcion libre (que) no hubiese dispuesto en virtual de legado mejora o donacion" Maniesa as cited in Nuguid v. Nuguid, supra;
Maninang v. Court of Appeals, 114 SCRA [1982]). The only provisions which do not result in intestacy are the legacies and devises
made in the will for they should stand valid and respected, except insofar as the legitimes are concerned.
The universal institution of petitioner together with his brothers and sisters to the entire inheritance of the testator results in totally
abrogating the will because the nullification of such institution of universal heirs-without any other testamentary disposition in the
will-amounts to a declaration that nothing at all was written. Carefully worded and in clear terms, Article 854 of the Civil Code
offers no leeway for inferential interpretation (Nuguid v. Nuguid), supra. No legacies nor devises having been provided in the will
the whole property of the deceased has been left by universal title to petitioner and his brothers and sisters. The effect of annulling
the "Institution of heirs will be, necessarily, the opening of a total intestacy (Neri v. Akutin, 74 Phil. 185 [1943]) except that proper
legacies and devises must, as already stated above, be respected.
We now deal with another matter. In order that a person may be allowed to intervene in a probate proceeding he must have an
interest iii the estate, or in the will, or in the property to be affected by it either as executor or as a claimant of the estate and an

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interested party is one who would be benefited by the estate such as an heir or one who has a claim against the estate like a creditor
(Sumilang v. Ramagosa, 21 SCRA 1369/1967). Petitioner is not the appointed executor, neither a devisee or a legatee there being no
mention in the testamentary disposition of any gift of an individual item of personal or real property he is called upon to receive
(Article 782, Civil Code). At the outset, he appears to have an interest in the will as an heir, defined under Article 782 of the Civil
Code as a person called to the succession either by the provision of a will or by operation of law. However, intestacy having resulted
from the preterition of respondent adopted child and the universal institution of heirs, petitioner is in effect not an heir of the
testator. He has no legal standing to petition for the probate of the will left by the deceased and Special Proceedings No. 591 A-CEB
must be dismissed.
As a general rule certiorari cannot be a substitute for appeal, except when the questioned order is an oppressive exercise of j judicial
authority (People v. Villanueva, 110 SCRA 465 [1981]; Vda. de Caldito v. Segundo, 117 SCRA 573 [1982]; Co Chuan Seng v. Court of
Appeals, 128 SCRA 308 [1984]; and Bautista v. Sarmiento, 138 SCRA 587 [1985]). It is axiomatic that the remedies of certiorari and
prohibition are not available where the petitioner has the remedy of appeal or some other plain, speedy and adequate remedy in the
course of law (DD Comendador Construction Corporation v. Sayo (118 SCRA 590 [1982]). They are, however, proper remedies to
correct a grave abuse of discretion of the trial court in not dismissing a case where the dismissal is founded on valid grounds (Vda.
de Bacang v. Court of Appeals, 125 SCRA 137 [1983]).
Special Proceedings No. 591 ACEB is for the probate of a will. As stated by respondent Court, the general rule is that the probate
court's authority is limited only to the extrinsic validity of the will, the due execution thereof, the testator's testamentary capacity
and the compliance with the requisites or solemnities prescribed by law. The intrinsic validity of the will normally comes only after
the Court has declared that the will has been duly authenticated. Said court at this stage of the proceedings is not called upon to
rule on the intrinsic validity or efficacy of the provisions of the will (Nuguid v. Nuguid, 17 SCRA 449 [1966]; Sumilang v.
Ramagosa, supra; Maninang v. Court of Appeals, 114 SCRA 478 [1982]; Cayetano v. Leonides, 129 SCRA 522 [1984]; and
Nepomuceno v. Court of Appeals, 139 SCRA 206 [1985]).
The rule, however, is not inflexible and absolute. Under 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 (Nepomuceno v. Court of Appeals, supra). In Nuguid v.
Nuguid the oppositors to the probate moved to dismiss on the ground of absolute preteriton The probate court acting on the motion
held that the will in question was a complete nullity and dismissed the petition without costs. On appeal the Supreme Court upheld
the decision of the probate court, induced by practical considerations. The Court said:
We pause to reflect. If the case were to be remanded for probate of the will, nothing will be gained. On the
contrary, this litigation will be protracted. And for aught that appears in the record, in the event of probate or if
the court rejects the will, probability exists that the case will come up once again before us on the same issue of
the intrinsic validity or nullity of the will. Result: waste of time, effort, expense, plus added anxiety. These are the
practical considerations that induce us to a belief that we might as well meet head-on the issue of the validity of
the provisions of the will in question. After all there exists a justiciable controversy crying for solution.
In Saguimsim v. Lindayag (6 SCRA 874 [1962]) the motion to dismiss the petition by the surviving spouse was grounded on
petitioner's lack of legal capacity to institute the proceedings which was fully substantiated by the evidence during the hearing held
in connection with said motion. The Court upheld the probate court's order of dismissal.
In Cayetano v. Leonides, supra one of the issues raised in the motion to dismiss the petition deals with the validity of the
provisions of the will. Respondent Judge allowed the probate of the will. The Court held that as on its face the will appeared to have
preterited the petitioner the respondent judge should have denied its probate outright. Where circumstances demand that intrinsic
validity of testamentary provisions be passed upon even before the extrinsic validity of the will is resolved, the probate court should
meet the issue. (Nepomuceno v. Court of Appeals, supra; Nuguid v. Nuguid, supra).
In the instant case private respondents filed a motion to dismiss the petition in Sp. Proceedings No. 591 ACEB of the Regional Trial
Court of Cebu on the following grounds: (1) petitioner has no legal capacity to institute the proceedings; (2) he is merely a universal
heir; and (3) the widow and the adopted daughter have been preterited (Rollo, p. 158). It was denied by the trial court in an order
dated January 21, 1985 for the reason that "the grounds for the motion to dismiss are matters properly to be resolved after a
hearing on the issues in the course of the trial on the merits of the case (Rollo, p. 32). A subsequent motion for reconsideration was
denied by the trial court on February 15, 1985 (Rollo, p. 109).
For private respondents to have tolerated the probate of the will and allowed the case to progress when on its face the will appears
to be intrinsically void as petitioner and his brothers and sisters were instituted as universal heirs coupled with the obvious fact that
one of the private respondents had been preterited would have been an exercise in futility. It would have meant a waste of time,
effort, expense, plus added futility. The trial court could have denied its probate outright or could have passed upon the intrinsic
validity of the testamentary provisions before the extrinsic validity of the will was resolved (Cayetano v. Leonides, supra; Nuquid v.
Nuguid, supra. The remedies of certiorari and prohibition were properly availed of by private respondents.

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Thus, this Court ruled that where the grounds for dismissal are indubitable, the defendants had the right to resort to the more
speedy, and adequate remedies of certiorari and prohibition to correct a grave abuse of discretion, amounting to lack of
jurisdiction, committed by the trial court in not dismissing the case, (Vda. de Bacang v. Court of Appeals, supra) and even
assuming the existence of the remedy of appeal, the Court harkens to the rule that in the broader interests of justice, a petition for
certiorari may be entertained, particularly where appeal would not afford speedy and adequate relief. (Maninang Court of
Appeals, supra).
PREMISES CONSIDERED, the petition is hereby DENIED for lack of merit and the questioned decision of respondent Court of
Appeals promulgated on August 30, 1985 and its Resolution dated October 23, 1985 are hereby AFFIRMED.
SO ORDERED.

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