G.R. No. 76464 February 29, 1988 Instance of Iloilo and was docketed as Special Proceeding No. 1736.
Instance of Iloilo and was docketed as Special Proceeding No. 1736. However,
TESTATE ESTATE OF THE LATE ADRIANA MALOTO, ALDINA MALOTO
CASIANO, CONSTANCIO MALOTO, PURIFICACION MIRAFLOR, ROMAN
CATHOLIC CHURCH OF MOLO, AND ASILO DE MOLO, petitioners,
vs.
COURT OF APPEALS, PANFILO MALOTO AND FELINO
MALOTO, respondents.
SARMIENTO, J.:
This is not the first time that the parties to this case come to us. In fact, two
other cases directly related to the present one and involving the same parties
had already been decided by us in the past. In G.R. No. L-30479, 1which was a
petition for certiorari and mandamus instituted by the petitioners herein, we
dismissed the petition ruling that the more appropriate remedy of the petitioners is
a separate proceeding for the probate of the will in question. Pursuant to the said
ruling, the petitioners commenced in the then Court of First Instance of Iloilo,
Special Proceeding No. 2176, for the probate of the disputed will, which was
opposed by the private respondents presently, Panfilo and Felino both surnamed
Maloto. The trial court dismissed the petition on April 30, 1970. Complaining
against the dismissal, again, the petitioners came to this Court on a petition for
review by certiorari. 2 Acting on the said petition, we set aside the trial court's order
and directed it to proceed to hear the case on the merits. The trial court, after
hearing, found the will to have already been revoked by the testatrix. Adriana
Maloto, and thus, denied the petition. The petitioners appealed the trial court's
decision to the Intermediate Appellate Court which, on June 7, 1985, affirmed the
order. The petitioners' motion for reconsideration of the adverse decision proved to
be of no avail, hence, this petition.
For a better understanding of the controversy, a factual account would be a
great help.
On October 20, 1963, Adriana Maloto died leaving as heirs her niece and
nephews, the petitioners Aldina Maloto-Casiano and Constancio, Maloto, and
the private respondents Panfilo Maloto and Felino Maloto. Believing that the
deceased did not leave behind a last will and testament, these four heirs
commenced on November 4, 1963 an intestate proceeding for the settlement
of their aunt's estate. The case was instituted in the then Court of First
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while the case was still in progress, or to be exact on February 1, 1964, the
parties — Aldina, Constancio, Panfilo, and Felino — executed an agreement of
extrajudicial settlement of Adriana's estate. The agreement provided for the
division of the estate into four equal parts among the parties. The Malotos then
presented the extrajudicial settlement agreement to the trial court for approval
which the court did on March 21, 1964. That should have signalled the end of
the controversy, but, unfortunately, it had not.
Three years later, or sometime in March 1967, Atty. Sulpicio Palma, a former
associate of Adriana's counsel, the late Atty. Eliseo Hervas, discovered a
document entitled "KATAPUSAN NGA PAGBUBULAT-AN (Testamento),"
dated January 3,1940, and purporting to be the last will and testament of
Adriana. Atty. Palma claimed to have found the testament, the original copy,
while he was going through some materials inside the cabinet drawer formerly
used by Atty. Hervas. The document was submitted to the office of the clerk of
the Court of First Instance of Iloilo on April 1, 1967. Incidentally, while Panfilo
and Felino are still named as heirs in the said will, Aldina and Constancio are
bequeathed much bigger and more valuable shares in the estate of Adriana
than what they received by virtue of the agreement of extrajudicial settlement
they had earlier signed. The will likewise gives devises and legacies to other
parties, among them being the petitioners Asilo de Molo, the Roman Catholic
Church of Molo, and Purificacion Miraflor.
Thus, on May 24, 1967, Aldina and Constancio, joined by the other devisees
and legatees named in the will, filed in Special Proceeding No. 1736 a motion
for reconsideration and annulment of the proceedings therein and for the
allowance of the will When the trial court denied their motion, the petitioner
came to us by way of a petition for certiorari and mandamus assailing the
orders of the trial court . 3 As we stated earlier, we dismissed that petition and
advised that a separate proceeding for the probate of the alleged will would be the
appropriate vehicle to thresh out the matters raised by the petitioners.
Significantly, the appellate court while finding as inconclusive the matter on
whether or not the document or papers allegedly burned by the househelp of
Adriana, Guadalupe Maloto Vda. de Coral, upon instructions of the testatrix,
was indeed the will, contradicted itself and found that the will had been
revoked. The respondent court stated that the presence of animus revocandi in
the destruction of the will had, nevertheless, been sufficiently proven. The
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appellate court based its finding on the facts that the document was not in the
two safes in Adriana's residence, by the testatrix going to the residence of Atty.
Hervas to retrieve a copy of the will left in the latter's possession, and, her
seeking the services of Atty. Palma in order to have a new will drawn up. For
reasons shortly to be explained, we do not view such facts, even considered
collectively, as sufficient bases for the conclusion that Adriana Maloto's will
had been effectively revoked.
There is no doubt as to the testamentary capacity of the testatrix and the due
execution of the will. The heart of the case lies on the issue as to whether or
not the will was revoked by Adriana.
The provisions of the new Civil Code pertinent to the issue can be found in
Article 830.
Art. 830. No will shall be revoked except in the following cases:
(1) By implication of law; or
(2) By some will, codicil, or other writing executed as provided
in case of wills: or
(3) By burning, tearing, cancelling, or obliterating the will with
the intention of revoking it, by the testator himself, or by some
other person in his presence, and by his express direction. If
burned, torn cancelled, or obliterated by some other person,
without the express direction of the testator, the will may still be
established, and the estate distributed in accordance therewith,
if its contents, and due execution, and the fact of its
unauthorized destruction, cancellation, or obliteration are
established according to the Rules of Court. (Emphasis
Supplied.)
It is clear that the physical act of destruction of a will, like burning in this case,
does not per se constitute an effective revocation, unless the destruction is
coupled with animus revocandi on the part of the testator. It is not imperative
that the physical destruction be done by the testator himself. It may be
performed by another person but under the express direction and in
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the presence of the testator. Of course, it goes without saying that the
document destroyed must be the will itself.
In this case, while animus revocandi or the intention to revoke, may be
conceded, for that is a state of mind, yet that requisite alone would not suffice.
"Animus revocandi is only one of the necessary elements for the effective
revocation of a last will and testament. The intention to revoke must be
accompanied by the overt physical act of burning, tearing, obliterating, or
cancelling the will carried out by the testator or by another person in his
presence and under his express direction. There is paucity of evidence to
show compliance with these requirements. For one, the document or papers
burned by Adriana's maid, Guadalupe, was not satisfactorily established to be
a will at all, much less the will of Adriana Maloto. For another, the burning was
not proven to have been done under the express direction of Adriana. And
then, the burning was not in her presence. Both witnesses, Guadalupe and
Eladio, were one in stating that they were the only ones present at the place
where the stove (presumably in the kitchen) was located in which the papers
proffered as a will were burned.
The respondent appellate court in assessing the evidence presented by the
private respondents as oppositors in the trial court, concluded that the
testimony of the two witnesses who testified in favor of the will's revocation
appear "inconclusive." We share the same view. Nowhere in the records
before us does it appear that the two witnesses, Guadalupe Vda. de Corral
and Eladio Itchon, both illiterates, were unequivocably positive that the
document burned was indeed Adriana's will. Guadalupe, we think, believed
that the papers she destroyed was the will only because, according to her,
Adriana told her so. Eladio, on the other hand, obtained his information that the
burned document was the will because Guadalupe told him so, thus, his
testimony on this point is double hearsay.
At this juncture, we reiterate that "(it) is an important matter of public interest
that a purported win is not denied legalization on dubious grounds. Otherwise,
the very institution of testamentary succession will be shaken to its very
foundations ...." 4
The private respondents in their bid for the dismissal of the present action for
probate instituted by the petitioners argue that the same is already barred
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by res adjudicata. They claim that this bar was brought about by the
petitioners' failure to appeal timely from the order dated November 16, 1968 of
the trial court in the intestate proceeding (Special Proceeding No. 1736)
denying their (petitioners') motion to reopen the case, and their prayer to annul
the previous proceedings therein and to allow the last will and testament of the
late Adriana Maloto. This is untenable.
The doctrine of res adjudicata finds no application in the present controversy.
For a judgment to be a bar to a subsequent case, the following requisites must
concur: (1) the presence of a final former judgment; (2) the former judgment
was rendered by a court having jurisdiction over the subject matter and the
parties; (3) the former judgment is a judgment on the merits; and (4) there is,
between the first and the second action, Identity of parties, of subject matter,
and of cause of action. 5 We do not find here the presence of all the enumerated
requisites.
more valuable properties have been acquired after the execution of the will on
January 3,1940." 7 Suffice it to state here that as these additional matters raised
by the private respondents are extraneous to this special proceeding, they could
only be appropriately taken up after the will has been duly probated and a
certificate of its allowance issued.
WHEREFORE, judgment is hereby rendered REVERSING and SETTING
ASIDE the Decision dated June 7, 1985 and the Resolution dated October 22,
1986, of the respondent Court of Appeals, and a new one ENTERED for the
allowance of Adriana Maloto's last will and testament. Costs against the private
respondents.
This Decision is IMMEDIATELY EXECUTORY.
SO ORDERED.

For one, there is yet, strictly speaking, no final judgment rendered insofar as Yap (Chairman), Melencio-Herrera, and Paras JJ., concur.
the probate of Adriana Maloto's will is concerned. The decision of the trial court
in Special Proceeding No. 1736, although final, involved only the intestate Padilla, J., took no part.
settlement of the estate of Adriana. As such, that judgment could not in any
manner be construed to be final with respect to the probate of the
Footnotes
subsequently discovered will of the decedent. Neither is it a judgment on the
merits of the action for probate. This is understandably so because the trial
court, in the intestate proceeding, was without jurisdiction to rule on the 1 Constancio Maloto, et al. vs. Hon. Emigdio V. Nietes, etc., et
probate of the contested will . 6 After all, an action for probate, as it implies, is al., May 14, 1969.
founded on the presence of a will and with the objective of proving its due
execution and validity, something which can not be properly done in an intestate 2 G.R. No. L-32328.
settlement of estate proceeding which is predicated on the assumption that the
decedent left no will. Thus, there is likewise no Identity between the cause of 3 G.R. No. L-30479, supra.
action in intestate proceeding and that in an action for probate. Be that as it may, it
would be remembered that it was precisely because of our ruling in G.R. No. L-
4 Vda. de Precilla vs. Narciso, No. L-27200, August 18, 1972,
30479 that the petitioners instituted this separate action for the probate of the late
46 SCRA 538, 565-566, quoted in: Maninang vs. Court of
Adriana Maloto's will. Hence, on these grounds alone, the position of the private
respondents on this score can not be sustained. Appeals, No. L-57848, June 19, 1982, 114 SCRA 78.

One last note. The private respondents point out that revocation could be 5 Heirs of Matilde Cenizal Arguzon vs. Miclat, No. L-61049,
inferred from the fact that "(a) major and substantial bulk of the properties April 15, 1985, 135 SCRA 678; Martinez vs. Court of Appeals,
mentioned in the will had been disposed of: while an insignificant portion of the No. L-41425, November 11, 1985,139 SCRA 558.
properties remained at the time of death (of the testatrix); and, furthermore,
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 6 See Circa Nila Development Corporation, et. al. vs. Hon.
Salvador J. Baylen, etc., et al., G.R. Nos. 69757-58, January
29, 1988.
7 Rollo, 75.
G.R. No. L-26317 January 29, 1927
Estate of Miguel Mamuyac, deceased.
FRANCISCO GAGO, petitioner-appellant,
vs.
CORNELIO MAMUYAC, AMBROSIO LARIOSA,
FELICIANA BAUZON, and CATALINA MAMUYAC, opponents-appellees.
Nicanor Tavora for appellant.
Jose Rivera for appellees.
JOHNSON, J.:
The purpose of this action was to obtain the probation of a last will and
testament of Miguel Mamuyac, who died on the 2d day of January, 1922, in
the municipality of Agoo of the Province of La Union. It appears from the
record that on or about the 27th day of July, 1918, the said Miguel Mamuyac
executed a last will and testament (Exhibit A). In the month of January, 1922,
the said Francisco Gago presented a petition in the Court of First Instance of
the Province of La Union for the probation of that will. The probation of the
same was opposed by Cornelio Mamuyac, Ambrosio Lariosa, Feliciana
Bauzon, and Catalina Mamuyac (civil cause No. 1144, Province of La Union).
After hearing all of the parties the petition for the probation of said will was
denied by the Honorable C. M. Villareal on the 2d day of November, 1923,
upon the ground that the deceased had on the 16th day of April, 1919,
executed a new will and testament.
On the 21st day of February, 1925, the present action was commenced. Its
purpose was to secure the probation of the said will of the 16th day of April,
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1919 (Exhibit 1). To said petition Cornelio Mamuyac, Ambrosio Lariosa,
Feliciana Bauzon, and Catalina Mamuyac presented their oppositions, alleging
(a) that the said will is a copy of the second will and testament executed by the
said Miguel Mamuyac; (b) that the same had been cancelled and revoked
during the lifetime of Miguel Mamuyac and (c) that the said will was not the last
will and testament of the deceased Miguel Mamuyac.
Upon the issue thus presented, the Honorable Anastacio R. Teodoro, judge,
after hearing the respective parties, denied the probation of said will of April
16, 1919, upon the ground that the same had been cancelled and revoked in
the year 1920. Judge Teodoro, after examining the evidence adduced, found
that the following facts had been satisfactorily proved:
That Exhibit A is a mere carbon of its original which remained in the
possession of the deceased testator Miguel Mamuyac, who revoked it
before his death as per testimony of witness Jose Fenoy, who typed
the will of the testator on April 16, 1919, and Carlos Bejar, who saw on
December 30, 1920, the original Exhibit A (will of 1919) actually
cancelled by the testator Miguel Mamuyac, who assured Carlos Bejar
that inasmuch as he had sold him a house and the land where the
house was built, he had to cancel it (the will of 1919), executing
thereby a new testament. Narcisa Gago in a way corroborates the
testimony of Jose Fenoy, admitting that the will executed by the
deceased (Miguel Mamuyac) in 1919 was found in the possession of
father Miguel Mamuyac. The opponents have successfully established
the fact that father Miguel Mamuyac had executed in 1920 another will.
The same Narcisa Gago, the sister of the deceased, who was living in
the house with him, when cross-examined by attorney for the
opponents, testified that the original Exhibit A could not be found. For
the foregoing consideration and for the reason that the original of
Exhibit A has been cancelled by the deceased father Miguel Mamuyac,
the court disallows the probate of Exhibit A for the applicant." From that
order the petitioner appealed.
The appellant contends that the lower court committed an error in not finding
from the evidence that the will in question had been executed with all the
formalities required by the law; that the same had been revoked and cancelled
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in 1920 before his death; that the said will was a mere carbon copy and that After a careful examination of the entire record, we are fully persuaded that the
the oppositors were not estopped from alleging that fact. will presented for probate had been cancelled by the testator in 1920.
Therefore the judgment appealed from is hereby affirmed. And without any
With reference to the said cancellation, it may be stated that there is positive finding as to costs, it is so ordered.
proof, not denied, which was accepted by the lower court, that will in question
had been cancelled in 1920. The law does not require any evidence of the Street, Malcolm, Villamor, Ostrand, Romualdez and Villa-Real, JJ., concur.
revocation or cancellation of a will to be preserved. It therefore becomes
difficult at times to prove the revocation or cancellation of wills. The fact that Footnotes
such cancellation or revocation has taken place must either remain unproved
of be inferred from evidence showing that after due search the original will 1 Promulgated December 14, 1926, not reported.
cannot be found. Where a will which cannot be found is shown to have been in
the possession of the testator, when last seen, the presumption is, in the
absence of other competent evidence, that the same was cancelled or
destroyed. The same presumption arises where it is shown that the testator
had ready access to the will and it cannot be found after his death. It will not be G.R. No. L-62952 October 9, 1985
presumed that such will has been destroyed by any other person without the
knowledge or authority of the testator. The force of the presumption of SOFIA J. NEPOMUCENO, petitioner,
cancellation or revocation by the testator, while varying greatly, being weak or vs.
strong according to the circumstances, is never conclusive, but may be THE HONORABLE COURT OF APPEALS, RUFINA GOMEZ, OSCAR JUGO
overcome by proof that the will was not destroyed by the testator with intent to ANG, CARMELITA JUGO, respondents.
revoke it.
GUTIERREZ, JR., J.:
In view of the fat that the original will of 1919 could not be found after the death
of the testator Miguel Mamuyac and in view of the positive proof that the same This is a petition for certiorari to set aside that portion of the decision of the
had been cancelled, we are forced to the conclusion that the conclusions of respondent Court of Appeals (now intermediate Appellate Court) dated June 3,
the lower court are in accordance with the weight of the evidence. In a 1982, as amended by the resolution dated August 10, 1982, declaring as null
proceeding to probate a will the burden of proofs is upon the proponent clearly and void the devise in favor of the petitioner and the resolution dated
to establish not only its execution but its existence. Having proved its December 28, 1982 denying petitioner's motion for reconsideration.
execution by the proponents, the burden is on the contestant to show that it
has been revoked. In a great majority of instances in which wills are destroyed
Martin Jugo died on July 16, 1974 in Malabon, Rizal. He left a last Will and
for the purpose of revoking them there is no witness to the act of cancellation
Testament duly signed by him at the end of the Will on page three and on the
or destruction and all evidence of its cancellation perishes with the testator.
left margin of pages 1, 2 and 4 thereof in the presence of Celestina Alejandro,
Copies of wills should be admitted by the courts with great caution. When it is
Myrna C. Cortez, and Leandro Leano, who in turn, affixed their signatures
proven, however, by proper testimony that a will was executed in duplicate and
below the attestation clause and on the left margin of pages 1, 2 and 4 of the
each copy was executed with all the formalities and requirements of the law,
Will in the presence of the testator and of each other and the Notary Public.
then the duplicate may be admitted in evidence when it is made to appear that
The Will was acknowledged before the Notary Public Romeo Escareal by the
the original has been lost and was not cancelled or destroyed by the testator.
testator and his three attesting witnesses.
(Borromeo vs. Casquijo, G.R. No. L-26063.)1

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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
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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
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Testament of the deceased Martin Jugo validly drawn, it went on to pass upon ... It is elementary that a probate decree finally and definitively
the intrinsic validity of the testamentary provision in favor of herein petitioner. settles all questions concerning capacity of the testator and the
proper execution and witnessing of his last Will and testament,
The petitioner submits that the validity of the testamentary provision in her irrespective of whether its provisions are valid and enforceable
favor cannot be passed upon and decided in the probate proceedings but in or otherwise. (Fernandez v. Dimagiba, 21 SCRA 428)
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 The petition below being for the probate of a Will, the court's
formalities required by law and that the testator has the mental capacity to area of inquiry is limited to the extrinsic validity thereof. The
execute the same. The petitioner further contends that even if the provisions of testators testamentary capacity and the compliance with the
paragraph 1 of Article 739 of the Civil Code of the Philippines were applicable, formal requisites or solemnities prescribed by law are the only
the declaration of its nullity could only be made by the proper court in a questions presented for the resolution of the court. Any inquiry
separate action brought by the legal wife for the specific purpose of obtaining a into the intrinsic validity or efficacy of the provisions of the will
declaration of the nullity of the testamentary provision in the Will in favor of the or the legality of any devise or legacy is premature.
person with whom the testator was allegedly guilty of adultery or concubinage.
xxx xxx xxx
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 True or not, the alleged sale is no ground for the dismissal of
relationship between the testator and the petitioner and the fact that petitioner the petition for probate. Probate is one thing; the validity of the
herself initiated the presentation of evidence on her alleged ignorance of the testamentary provisions is another. The first decides the
true civil status of the testator, which led private respondents to present execution of the document and the testamentary capacity of
contrary evidence, merits the application of the doctrine enunciated in Nuguid the testator; the second relates to descent and distribution
v. Felix Nuguid, et al. (17 SCRA 449) and Felix Balanay, Jr. v. Hon. Antonio (Sumilang v. Ramagosa, 21 SCRA 1369)
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 xxx xxx xxx
petitioner put in issue the legality of the devise. We agree with the
respondents.
To establish conclusively as against everyone, and once for all,
the facts that a will was executed with the formalities required
The respondent court acted within its jurisdiction when after declaring the Will by law and that the testator was in a condition to make a will, is
to be validly drawn, it went on to pass upon the intrinsic validity of the Will and the only purpose of the proceedings under the new code for the
declared the devise in favor of the petitioner null and void. probate of a will. (Sec. 625). The judgment in such proceedings
determines and can determine nothing more. In them the court
The general rule is that in probate proceedings, the court's area of inquiry is has no power to pass upon the validity of any provisions made
limited to an examination and resolution of the extrinsic validity of the Will. The in the will. It can not decide, for example, that a certain legacy
rule is expressed thus: is void and another one valid. ... (Castaneda v. Alemany, 3
Phil. 426)
xxx xxx xxx

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The rule, however, is not inflexible and absolute. Given exceptional
circumstances, the probate court is not powerless to do what the situation
constrains it to do and pass upon certain provisions of the Will.
In Nuguid v. Nuguid (17 SCRA 449) cited by the trial court, the testator
instituted the petitioner as universal heir and completely preterited her
surviving forced heirs. A will of this nature, no matter how valid it may appear
extrinsically, would be null and void. Separate or latter proceedings to
determine the intrinsic validity of the testamentary provisions would be
superfluous.
Even before establishing the formal validity of the will, the Court in Balanay .Jr.
v. Martinez (64 SCRA 452) passed upon the validity of its intrinsic provisions.
Invoking "practical considerations", we stated:
The basic issue is whether the probate court erred in passing
upon the intrinsic validity of the will, before ruling on its
allowance or formal validity, and in declaring it void.
We are of the opinion that in view of certain unusual provisions
of the will, which are of dubious legality, and because of the
motion to withdraw the petition for probate (which the lower
court assumed to have been filed with the petitioner's
authorization) the trial court acted correctly in passing upon the
will's intrinsic validity even before its formal validity had been
established. The probate of a will might become an Idle
ceremony if on its face it appears to be intrinsically void. Where
practical considerations demand that the intrinsic validity of the
will be passed upon, even before it is probated, the court
should meet the issue (Nuguid v. Nuguid, 64 O.G. 1527, 17
SCRA 449. Compare with Sumilang vs. Ramagosa L-23135,
December 26, 1967, 21 SCRA 1369; Cacho v. Udan L-19996,
April 30, 1965, 13 SCRA 693).
There appears to be no more dispute at this time over the extrinsic validity of
the Will. Both parties are agreed that the Will of Martin Jugo was executed with
all the formalities required by law and that the testator had the mental capacity
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to execute his Will. The petitioner states that she completely agrees with the
respondent court when in resolving the question of whether or not the probate
court correctly denied the probate of Martin Jugo's last Will and Testament, it
ruled:
This being so, the will is declared validly drawn. (Page 4,
Decision, Annex A of Petition.)
On the other hand the respondents pray for the affirmance of the Court of
Appeals' decision in toto.
The only issue, therefore, is the jurisdiction of the respondent court to declare
the testamentary provision in favor of the petitioner as null and void.
We sustain the respondent court's jurisdiction. As stated in Nuguid v. Nuguid,
(supra):
We pause to reflect. If the case were to be remanded for
probate of the will, nothing will be gained. On the contrary, this
litigation will be protracted. And for aught that appears in the
record, in the record, in the event of probate or if the court
rejects the will, probability exists that the case will come up
once again before us on the same issue of the intrinsic validity
or nullity of the will. Result, waste of time, effort, expense, plus
added anxiety. These are the practical considerations that
induce us to a belief that we might as well meet head-on the
issue of the validity of the provisions of the will in question.
(Section 2, Rule 1, Rules of Court. Case, et al. v. Jugo, et al.,
77 Phil. 517, 522). After all, there exists a justiciable
controversy crying for solution.
We see no useful purpose that would be served if we remand the nullified
provision to the proper court in a separate action for that purpose simply
because, in the probate of a will, the court does not ordinarily look into the
intrinsic validity of its provisions.
Article 739 of the Civil Code provides:
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 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.
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It is also a fact that on December 2, 1952, Martin Jugo and Sofia J.
Nepomuceno contracted a marriage before the Justice of the Peace of
Victoria, Tarlac. The man was then 51 years old while the woman was 48.
Nepomuceno now contends that she acted in good faith for 22 years in the
belief that she was legally married to the testator.
The records do not sustain a finding of innocence or good faith. As argued by
the private respondents:
First. The last will and testament itself expressly admits
indubitably on its face the meretricious relationship between
the testator and petitioner, the devisee.
Second. Petitioner herself initiated the presentation of evidence
on her alleged ignorance of the true civil status of the testator,
which led private respondents to present contrary evidence.
In short, the parties themselves dueled on the intrinsic validity
of the legacy given in the will to petitioner by the deceased
testator at the start of the proceedings.
Whether or not petitioner knew that testator Martin Jugo, the
man he had lived with as man and wife, as already married,
was an important and specific issue brought by the parties
before the trial court, and passed upon by the Court of
Appeals.
Instead of limiting herself to proving the extrinsic validity of the
will, it was petitioner who opted to present evidence on her
alleged good faith in marrying the testator. (Testimony of
Petitioner, TSN of August 1, 1982, pp. 56-57 and pp. 62-64).
Private respondents, naturally, presented evidence that would
refute the testimony of petitioner on the point.
Sebastian Jugo, younger brother of the deceased testator,
testified at length on the meretricious relationship of his brother
and petitioner. (TSN of August 18,1975).
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 Clearly, the good faith of petitioner was by option of the parties
made a decisive issue right at the inception of the case.
Confronted by the situation, the trial court had to make a ruling
on the question.
When the court a quo held that the testator Martin Jugo and
petitioner 'were deemed guilty of adultery or concubinage', it
was a finding that petitioner was not the innocent woman she
pretended to be.
xxx xxx xxx
3. If a review of the evidence must be made nonetheless, then
private respondents respectfully offer the following analysis:
FIRST: The secrecy of the marriage of petitioner with the
deceased testator in a town in Tarlac where neither she nor the
testator ever resided. If there was nothing to hide from, why the
concealment' ? Of course, it maybe argued that the marriage of
the deceased with private respondent Rufina Gomez was
likewise done in secrecy. But it should be remembered that
Rufina Gomez was already in the family way at that time and it
would seem that the parents of Martin Jugo were not in favor of
the marriage so much so that an action in court was brought
concerning the marriage. (Testimony of Sebastian Jugo, TSN
of August 18, 1975, pp. 29-30)
SECOND: Petitioner was a sweetheart of the deceased
testator when they were still both single. That would be in 1922
as Martin Jugo married respondent Rufina Gomez on
November 29, 1923 (Exh. 3). Petitioner married the testator
only on December 5, 1952. There was a space of about 30
years in between. During those 30 years, could it be believed
that she did not even wonder why Martin Jugo did not marry
her nor contact her anymore after November, 1923 - facts that
should impel her to ask her groom before she married him in
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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
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the recipient may receive. The very wordings of the Will invalidate the legacy HITOSIS-BANEGA, minors MILAGROS HITOSIS-BANEGA, ALICIA
because the testator admitted he was disposing the properties to a person with HITOSIS-BANEGA AND ELISA HITOSIS-BANEGA, represented by their
whom he had been living in concubinage. legal guardian and father ERNESTO BANEGA, FELICITAS HITOSIS-
PENAFLOR, GENOVEVA HITOSIS-ADRIATICO, MANUEL HITOSIS,
WHEREFORE, the petition is DISMISSED for lack of merit. The decision of the PEDRO HITOSIS, LIBRATA HITOSIS-BALMES, JUANITA HITOSIS-
Court of Appeals, now Intermediate Appellate Court, is AFFIRMED. No costs. GABITO VDA. DE GABAS, MAURA HITOSIS-GABITO VDA. DE GANOLA
and LEONA HITOSIS-GABITO GAMBA, respondents.
SO ORDERED.
Haile Frivaldo for petitioners.
Teehankee (Chairman), Melencio-Herrera, Plana, Relova, De la Fuente and
Patajo, JJ., concur. Joaquin R Mitosis for private respondents.

AQUINO, J.:

In this special civil action of certiorari, filed on July 29, 1968, the petitioners
G.R. No. L-29300 June 21, 1978 seek to annul the orders of respondent Judge dated May 3 trial June 17, 1968,
wherein he reconsidered his order of January 10, 1968, dismissing, on the
PEDRO D. H. GALLANOSA, CORAZON GRECIA-GALLONOSA and ground of prescription, the complaint in Civil Case No. 2233 of the Court of
ADOLFO FORTAJADA, the deceased Pedro Gallanosa being substituted First Instance of Sorsogon.
by his legal heirs, namely his above-named widow and his children,
ISIDRO GALLANOSA and LEDY GALLANOSA, and grandchildren named The case involves the sixty-one parcels of land in Sorsogon left by Florentino
IMELDA TECLA GALLANOSA and ROSARIO BRIGIDA GALLANOSA, Hitosis, with an estimated value of P50,000, trial claims for damages
children of the late SIKATUNA GALLANOSA, son of Pedro D.H. exceeding one million pesos. The undisputed facts are as follows:
GALLONOSA, petitioners,
vs.
HON. UBALDO Y. ARCANGEL, Judge of Branch I of the Court of First 1. Florentino Hitosis executed a will in the Bicol dialect on June 19, 1938 when
Instance of Sorsogon and FLORENTINO G. HITOSIS, CASIANO G. he was eighty years old. He died on May 26, 1939 at Irosin, Sorsogon. A
HITOSIS, TEOTIMO G. HITOSIS, VICTORIO G. HITOSIS, EMILIA G. childless widower, he as survived by his brother, Leon Hitosis. His other
HITOSIS VDA. DE CRUZ, JOAQUIN R. HITOSIS VDA. DE CRUZ, JOAQUIN brothers, named Juan, Tito (Juancito), Leoncio (Aloncio) trial Apolonio and
R. HITOSIS, FLORENTINO R. HITOSIS, VIRGINIA R. MITOSIS, DEBORAH only sister, Teodora, were all dead.
R. HITOSIS, EDILBERTO R. HITOSIS, LEONOR R. HITOSIS, NORMA R.
HITOSIS-VILLANUEVA, LEONCIO R. HITOSIS, minors ANGEL R. HITOSIS 2. On June 24, 1939 a petition for the probate of his will was filed in the Court
and RODOLFO R. HITOSIS, represented by their legal guardian and of First Instance of Sorsogon (Special Proceeding No. 3171). The notice of
mother LOURDES RELUCIO VDA. DE HITOSIS, PETRONA HITOSIS- hearing was duly published. In that will, Florentino bequeathed his one-half
BALBIDO, MODESTO HITOSIS-GACILO, CLETO HITOSIS, AGUSTIN share in the conjugal estate to his second wife, Tecla Dollentas, and, should
HITOSIS-FORTES, TOMASA HITOSIS-BANARES VDA. DE BORRAS, Tecla predecease him, as was the case, his one-half share would be assigned
CONRADA HITOSIS-BANARES FRANCHE, RESTITUTO HITOSIS- to the spouses Pedro Gallanosa and Corazon Grecia, the reason being that
BANARES, DAMIAN HITOSIS-BANARES, FIDEL HITOSIS-BANARES, Pedro, Tecla's son by her first marriage, grew up under the care of Florentino;
SUSANA HITOSIS-BANARES RODRIGUEZ, JOSE HITOSIS, LOLITA he had treated Pedro as his foster child, and Pedro has rendered services to
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Florentino and Tecla. Florentino likewise bequeathed his separate properties It also appears that the plaintiffs and/or their predecessors-in-
consisting of three parcels of abaca land and parcel of riceland to his protege interest had intervened in the testate proceedings in Civil Case
(sasacuyang ataman), Adolfo Fortajada, a minor. No. 3171 of this Court for- the purpose of contesting the
probate of the will of (the) late Florentino Hitosis; trial had their
3. Opposition to the probate of the will was registered by the testator's legal opposition prospered trial the will denied of probate, the
heirs, namely, his surviving brother, Leon, trial his nephews trial nieces. After a proceedings would have been converted into one of intestacy
hearing, wherein the oppositors did not present any evidence in support of (Art. 960 Civil Code) and the settlement of the estate of the
their opposition, Judge Pablo S. Rivera, in his decision of October 27, 1939, said deceased would have been made in accordance with the
admitted the will to probate and appointed Gallanosa as executor. Judge provisions of law governing legal or intestate succession ... , in
Rivera specifically found that the testator executed his last will "gozando de which case the said plaintiffs, as the nearest of kin or legal
buena salud y facultades mentales y no obrando en virtud de amenaza, fraude heirs of said Florentino Mitosis, would have succeeded to the
o influencia indebida." ownership and possession of the 61 parcels of land in question
forming part of his estate (art. 1003, Civil Code).
4. On October 24, 1941, the testamentary heirs, the Gallanosa spouses trial
Adolfo Fortajada, submitted a project of partition covering sixty-one parcels of However, the derision of the Court was adverse to them, when
land located in various parts of Sorsogon, large cattle trial several pieces of it their opposition trial ordered the probate of his will. From this
personal property which were distributed in accordance with Florentino's will. decision (Annex K) legalizing the said will, the oppositors did
The heirs assumed the obligations of the estate amounting to P7,129.27 in the not file any appeal within the period fixed by law, despite the
portion of P2,376.42 for Adolfo Fortajada and P4,752.85 for the Gallanosa fact that they were duly notified thereof, so that the said
spouses. The project of partition was approved by Judge Doroteo Amador in decision had become final trial it now constitutes a bar to any
his order of March 13, 1943, thus confirming the heirs' possession of their action that the plaintiffs may institute for the purpose of a
respective shares. The testator's legal heirs did not appeal from the decree of redetermination of their rights to inherit the properties of the
probate trial from the order of partition trial distribution. late Florentino Hitosis.

5. On February 20, 1952, Leon Hitosis trial the heirs of Florentino's deceased In other words, the said decision of this Court in Civil Case
brothers trial sisters instituted an action in the Court of First Instance of special ) No. 3171, in which the herein plaintiffs or their
Sorsogon against Pedro Gallanosa for the recovery of the said sixty-one predecessors-in-interest had intervened as parties oppositors,
parcels of land. They alleged that they, by themselves or through their constitutes a final judicial determination of the issue that the
predecessors-in-interest, had been in continuous possession of those lands en said plaintiffs, as ordinary heirs, have no legal rights to succeed
concepto de dueño trial that Gallanosa entered those lands in 1951 trial to any of the properties of the late Florentino Hitosis;
asserted ownership over the lands. They prayed that they be declared the consequently, their present claim to the ownership trial
owners of the lands trial that they be restored to the possession thereof. They possession of the 61 parcels of land in question is without any
also claimed damages (Civil Case No. 696). legal merit or basis.

6. Gallanosa moved to dismiss the above complaint for lack of cause of action 7. The plaintiffs did not appeal from that order of dismissal which should have
trial on the ground of bar by the prior judgment in the probate proceeding. set the matter at rest. But the same plaintiffs or oppositors to the probate of the
Judge Anatolio C. Mañalac dismiss the complaint on the ground of res will, trial their heirs, with a persistence befitting a more meritorious case, filed
judicata in his order of August 14, 1952 wherein he said: on September 21, 1967, or fifteen years after the dismissal of Civil Case No.

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696 trial twenty-eight years after the probate of the will another action in the
same court against the Gallanosa spouses trial Adolfo Fortajada for the
"annulment" of the will of Florentino Hitosis trial and for the recovery of the
same sixty-one parcels of land. They prayed for the appointment of a receiver.
8. As basis of their complaint, they alleged that the Gallanosa spouses,
through fraud trial deceit, caused the execution trial simulation of the document
purporting to be the last will trial testament of Florentino Hitosis. While in their
1952 complaint the game plaintiffs alleged that they were in possession of the
lands in question, in their 1967 complaint they admitted that since 1939, or
from the death of Florentino Hitosis, the defendants (now the petitioners) have
been in possession of the disputed lands (Par. XIV of the complaint, p. 70,
Rollo in Civil Case No. 555, Gubat Branch, which was transferred to Branch I
in Sorsogon town where Special Proceeding No. 3171 trial Civil Case No. 696
were decided trial which was re-docketed as Civil Case No. 2233).
9. As already stated, that 1967 complaint, upon motion of the defendants, now
the petitioners, was dismissed by respondent Judge. The plaintiffs filed a
motion for reconsideration Respondent Judge. granted it trial set aside the
order of dismissal. He denied defendants' motion for the reconsideration of his
order setting aside that dismissal order.
The petitioners or the defendants below contend in this certiorari case that the
lower court has no jurisdiction to set aside the 1939 decree of probate trial the
1952 order of dismissal in Civil Case No. 696 trial that it acted with grave
abuse of discretion in not dismissing private respondents' 1967 complaint.
The issue is whether, under the facts set forth above, the private respondents
have a cause of action the "annulment" of the will of Florentino Hitosis trial for
the recovery of the sixty-one parcels of land adjudicated under that will to the
petitioners.
We hold that the lower court committed a grave abuse of discretion in
reconsideration its order of dismissal trial in ignoring the 1939 testamentary
case trial the 1952 Civil Case No. 696 which is the same as the instant 1967
case.
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A rudimentary knowledge of substantive law trial procedure is sufficient for an
ordinary lawyer to conclude upon a causal perusal of the 1967 complaint that it
is baseless trial unwarranted.
What the plaintiffs seek is the "annulment" of a last will trial testament duly
probated in 1939 by the lower court itself. The proceeding is coupled with an
action to recover the lands adjudicated to the defendants by the same court in
1943 by virtue of the probated will, which action is a resuscitation of The
complaint of the same parties that the same court dismissed in 1952.
It is evident from the allegations of the complaint trial from defendants' motion
to dismiss that plaintiffs' 1967 action is barred by res judicata, a double-
barrelled defense, trial by prescription, acquisitive trial extinctive, or by what
are known in the jus civile trial the jus gentium as usucapio, longi temporis
possesio and praescriptio (See Ramos vs. Ramos, L-19872, December 3,
1974, 61 SCRA 284).
Our procedural law does not sanction an action for the "annulment" of a will. In
order that a will may take effect, it has to be probated, legalized or allowed in
the proper testamentary proceeding. The probate of the will is mandatory (Art.
838, Civil Code; sec. 1, Rule 75, formerly sec. 1, Rule 76, Rules of Court;
Guevara vs. Guevara, 74 Phil. 479; Guevara vs. Guevara, 98 Phil. 249).
The testamentary proceeding is a special proceeding for the settlement of the
testator's estate. A special proceeding is distinct trial different from an ordinary
action (Secs. 1 trial 2, Rule 2 trial sec. 1, Rule 72, Rules of Court).
We say that the defense of res judicata, as a ground for the dismissal of
plaintiffs' 1967 complaint, is a two-pronged defense because (1) the 1939 trial
1943 decrees of probate trial distribution in Special Proceeding No. 3171 trial
(2) the 1952 order of dismissal in Civil Case No. 696 of the lower court
constitute bars by former judgment, Rule 39 of the Rules of Court provides:
SEC. 49. Effect of judgments. — The effect of a judgment or
final order rendered by a court or judge of the Philippines,
having jurisdiction to pronounce the judgment or order, may be
as follows:
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 (a) In case of a judgment or order against a specific thing, or in
respect to the probate of a will or the administration of the
estate of a deceased person, or in respect to the personal,
political, or legal condition or status of a particular person or his
relationship to another, the judgment or order is conclusive
upon the title to the thing the will or administration, or the
condition, status or relationship of the person; however, the
probate of a will or granting of letters of administration shall
only be prima facie evidence of the death of the testator or
intestate;
(b) In other cases the judgment or order is, with respect to the
matter directly adjudged or as to any other matter that could
have been raised in relation thereto, conclusive between the
parties trial their successors in interest by title subsequent to
the commencement of the action or special proceeding,
litigating of the same thing trial under the same title trial in the
same capacity;
(c) In any other litigation between the same parties or their
successors in interest, that only is deemed to have been
adjudged in a former judgment which appears upon its face to
have been so adjudged, or which was actually trial necessarily
included therein or necessary thereto.
The 1939 decree of probate is conclusive as to the due execution or formal
validity of the will (Sec. 625, Act 190, sec. 1, Rule 76, now sec. 1, Rule 75,
Rules of Court; Last par. of art. 838, Civil Code).
That means that the testator was of sound trial disposing mind at the time
when he executed the will and was not acting under duress, menace, fraud, or
undue influence; that the will was signed by him in the presence of the
required number of witnesses, and that the will is genuine trial is not a forgery.
Accordingly, these facts cannot again be questioned in a subsequent
proceeding, not even in a criminal action for the forgery of the will. (3 Moran's
Comments on the Rules of Court, 1970 Edition, p. 395; Manahan vs.
Manahan, 58 Phil. 448).
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After the finality of the allowance of a will, the issue as to the voluntariness of
its execution cannot be raised anymore (Santos vs. De Buenaventura, L-
22797, September 22, 1966, 18 SCRA 47).
In Austria vs. Ventenilla, 21 Phil. 180, a "petition for annulment of a will" was
not entertained after the decree of probate had become final. That case is
summarized as follows:
Wills; Probate; Alledged Fraudulent Will; Appeal.— V. died. His
will was admitted to probate without objection. No appeal was
taken from said order. It was admitted that due trial legal notice
had been given to all parties. Fifteen months after the date of
said order, a motion was presented in the lower court to have
said will declared null and void, for the reason that fraud had
been practised upon the deceased in the making of his will.
Held: That under section 625 of Act No. 190, the only time
given parties who are displeased with the order admitting to
probate a will, for an appeal is the time given for appeals in
ordinary actions; but without deciding whether or not an order
admitting a will to probate will be opened for fraud, after the
time allowed for an appeal has expired, when no appeal is
taken from an order probating a will, the heirs can not, in
subsequent litigation in the same proceedings, raise questions
relating to its due execution. The probate of a will is conclusive
as to its due execution trial as to the testamentary capacity of
The testator. (See Austria vs. Heirs of Ventenilla. 99 Phil.
1069).
On the other hand, the 1943 decree of adjudication rendered by the trial court
in the testate proceeding for the settlement of the estate of Florentino Hitosis,
having been rendered in a proceeding in rem, is under the abovequoted
section 49(a), binding upon the whole world (Manalo vs. Paredes, 47 Phil.
938; In re Estate of Johnson, 39 Phil. 156; De la Cerna vs. Potot, 120 Phil.
1361, 1364; McMaster vs. Hentry Reissmann & Co., 68 Phil. 142).
It is not only the 1939 probate proceeding that can be interposed as res
judicata with respect to private respondents' complaint, The 1952 order of
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dismissal rendered by Judge Mañalac in Civil Case No. 696, a judgment in
personam was an adjudication on the merits (Sec. 4, Rule 30, old Rules of
Court). It constitutes a bar by former judgment under the aforequoted section
49(b) (Anticamara vs. Ong, L-29689. April 14, 1978).
The plaintiffs or private respondents did not even bother to ask for the
annulment of the testamentary proceeding trial the proceeding in Civil Case
No. 696. Obviously, they realized that the final adjudications in those cases
have the binding force of res judicata and that there is no ground, nor is it
timely, to ask for the nullification of the final orders trial judgments in those two
cases.
in article 1410. The Dingle case was decided by the Court of Appeals. Even
the trial court did not take pains to verify the misrepresentation of plaintiffs'
counsel that the Dingle case was decided by this Court. An elementary
knowledge of civil law could have alerted the trial court to the egregious error
of plaintiffs' counsel in arguing that article 1410 applies to wills.
WHEREFORE, the lower court's orders of May 3 trial June 17, 1968 are
reversed trial set aside trial its order of dismissal dated January 10, 1968 is
affirmed. Costs against the private respondents.
SO ORDERED.

It is a fundamental concept in the organization of every jural system, a Fernando (Chairman), Barredo, Antonio, and Santos, JJ., concur.
principle of public policy, that, at the risk of occasional errors, judgments of
courts should become final at some definite date fixed by law. Interest rei Concepcion, Jr., J., is on leave.
publicae ut finis sit litum. "The very object for which the courts were constituted
was to put an end to controversies." (Dy Cay vs. Crossfield and O'Brien, 38
Phil. 521: Peñalosa vs. Tuason, 22 Phil, 303; De la Cerna vs. Potot, supra).

After the period for seeking relief from a final order or judgment under Rule 38 G.R. No. L-20234 December 23, 1964
of the Rules of Court has expired, a final judgment or order can be set aside
only on the grounds of (a) lack of jurisdiction or lack of due process of law or PAULA DE LA CERNA, ET AL., petitioners,
(b) that the judgment was obtained by means of extrinsic or collateral fraud. In vs.
the latter case, the period for annulling the judgment is four years from the MANUELA REBACA POTOT, ET AL., and THE HONORABLE COURT OF
discovery of the fraud (2 Moran's Comments on the Rules of Court, 1970 APPEALS, respondents.
Edition, pp. 245-246; Mauricio vs. Villanueva, 106 Phil. 1159).
Philip M. Alo and Crispin M. Menchavez for petitioners.
To hurdle over the obstacle of prescription, the trial court, naively adopting the Nicolas Jumapao for respondents.
theory of plaintiffs' counsel, held that the action for the recovery of the lands
had not prescribed because the rule in article 1410 of the Civil Code, that "the REYES, J.B.L., J.:
action or defense for the declaration of the inexistence of a contract does not
prescribe", applies to wills. Appeal by Paula de la Cerna and others from a decision of the Court of
Appeals, Sixth Division (C.A.-G.R. No. 23763-R) reversing that of the Court of
That ruling is a glaring error. Article 1410 cannot possibly apply to last wills trial First Instance of Cebu (Civ. Case No. R-3819) and ordering the dismissal of an
testaments. The trial court trial plaintiffs' counsel relied upon the case of Dingle action for partition.
vs. Guillermo, 48 0. G. 4410, allegedly decided by this Court, which cited the
ruling in Tipton vs. Velasco, 6 Phil. 67, that mere lapse of time cannot give The factual background appears in the following portion of the decision of the
efficacy to void contracts, a ruling elevated to the category of a codal provision Court of Appeals (Petition, Annex A, pp. 2-4):
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 It appears that on May 9, 1939, the spouses, Bernabe de la Serna and
Gervasia Rebaca, executed a joint last will and testament in the local
dialect whereby they willed that "our two parcels of land acquired
during our marriage together with all improvements thereon shall be
given to Manuela Rebaca, our niece, whom we have nurtured since
childhood, because God did not give us any child in our union,
Manuela Rebaca being married to Nicolas Potot", and that "while each
of the testators is yet living, he or she will continue to enjoy the fruits of
the two lands aforementioned", the said two parcels of land being
covered by Tax No. 4676 and Tax No. 6677, both situated in sitio
Bucao, barrio Lugo, municipality of Borbon, province of Cebu. Bernabe
dela Serna died on August 30, 1939, and the aforesaid will was
submitted to probate by said Gervasia and Manuela before the Court of
First Instance of Cebu which, after due publication as required by law
and there being no opposition, heard the evidence, and, by Order of
October 31, 1939; in Special Proceedings No. 499, "declara legalizado
el documento Exhibit A como el testamento y ultima voluntad del
finado Bernabe de la Serna con derecho por parte du su viuda
superstite Gervasia Rebaca y otra testadora al propio tiempo segun el
Exhibit A de gozar de los frutos de los terranos descritos en dicho
documents; y habido consideracion de la cuantia de dichos bienes, se
decreta la distribucion sumaria de los mismos en favor de la logataria
universal Manuela Rebaca de Potot previa prestacion por parte de la
misma de una fianza en la sum de P500.00 para responder de
cualesquiera reclamaciones que se presentare contra los bienes del
finado Bernabe de la Serna de los años desde esta fecha" (Act Esp.
499, Testamentaria Finado Bernabe de la Serna) Upon the death of
Gervasia Rebaca on October 14, 1952, another petition for the probate
of the same will insofar as Gervasia was concerned was filed on
November 6, 1952, being Special Proceedings No. 1016-R of the same
Court of First Instance of Cebu, but for failure of the petitioner,
Manuela R. Potot and her attorney, Manuel Potot to appear, for the
hearing of said petition, the case was dismissed on March 30, 1954
Spec. Proc. No. 1016-R, In the matter of the Probate of the Will of
Gervasia Rebaca).
The Court of First Instance ordered the petition heard and declared the
testament null and void, for being executed contrary to the prohibition of joint
wills in the Civil Code (Art. 669, Civil Code of 1889 and Art. 818, Civil Code of
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the Philippines); but on appeal by the testamentary heir, the Court of Appeals
reversed, on the ground that the decree of probate in 1939 was issued by a
court of probate jurisdiction and conclusive on the due execution of the
testament. Further, the Court of Appeals declared that:
... . It is true the law (Art. 669, old Civil Code; Art. 818, new Civil Code).
prohibits the making of a will jointly by two or more persons either for
their reciprocal benefit or for the benefit of a third person. However, this
form of will has long been sanctioned by use, and the same has
continued to be used; and when, as in the present case, one such joint
last will and testament has been admitted to probate by final order of a
Court of competent jurisdiction, there seems to be no alternative
except to give effect to the provisions thereof that are not contrary to
law, as was done in the case of Macrohon vs. Saavedra, 51 Phil. 267,
wherein our Supreme Court gave effect to the provisions of the joint
will therein mentioned, saying, "assuming that the joint will in question
is valid."
Whence this appeal by the heirs intestate of the deceased husband, Bernabe
de la Cerna.
The appealed decision correctly held that the final decree of probate, entered
in 1939 by the Court of First Instance of Cebu (when the testator, Bernabe de
la Cerna, died), has conclusive effect as to his last will and testament despite
the fact that even then the Civil Code already decreed the invalidity of joint
wills, whether in favor of the joint testators, reciprocally, or in favor of a third
party (Art. 669, old Civil Code). The error thus committed by the probate court
was an error of law, that should have been corrected by appeal, but which did
not affect the jurisdiction of the probate court, nor the conclusive effect of its
final decision, however erroneous. A final judgment rendered on a petition for
the probate of a will is binding upon the whole world (Manalo vs. Paredes, 47
Phil. 938; In re Estates of Johnson, 39 Phil. 156); and public policy and sound
practice demand that at the risk of occasional errors judgment of courts should
become final at some definite date fixed by law. Interest rei publicae ut finis set
litium (Dy Cay vs. Crossfield, 38 Phil, 521, and other cases cited in 2 Moran,
Comments on the Rules of Court (1963 Ed., p. 322).
Page 16 of 36
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Petitioners, as heirs and successors of the late Bernabe de la Cerna, are
concluded by the 1939 decree admitting his will to probate. The contention that
being void the will cannot be validated, overlooks that the ultimate decision on
Whether an act is valid or void rests with the courts, and here they have
spoken with finality when the will was probated in 1939. On this court, the
dismissal of their action for partition was correct.
But the Court of Appeals should have taken into account also, to avoid future
misunderstanding, that the probate decree in 1989 could only affect the share
of the deceased husband, Bernabe de la Cerna. It could not include the
disposition of the share of the wife, Gervasia Rebaca, who was then still alive,
and over whose interest in the conjugal properties the probate court acquired
no jurisdiction, precisely because her estate could not then be in issue. Be it
remembered that prior to the new Civil Code, a will could not be probated
during the testator's lifetime.
It follows that the validity of the joint will, in so far as the estate of the wife was
concerned, must be, on her death, reexamined and adjudicated de novo, since
a joint will is considered a separate will of each testator. Thus regarded, the
holding of the court of First Instance of Cebu that the joint will is one prohibited
by law was correct as to the participation of the deceased Gervasia Rebaca in
the properties in question, for the reasons extensively discussed in our
decision in Bilbao vs. Bilbao, 87 Phil. 144, that explained the previous holding
in Macrohon vs. Saavedra, 51 Phil. 267.
Therefore, the undivided interest of Gervasia Rebaca should pass upon her
death to her heirs intestate, and not exclusively to the testamentary heir,
unless some other valid will in her favor is shown to exist, or unless she be the
only heir intestate of said Gervasia.
It is unnecessary to emphasize that the fact that joint wills should be in
common usage could not make them valid when our Civil Codes consistently
invalidated them, because laws are only repealed by other subsequent laws,
and no usage to the contrary may prevail against their observance (Art. 5, Civ.
Code of 1889; Art. 7, Civil Code of the Philippines of 1950).
WITH THE FOREGOING MODIFICATION, the judgment of the Court of
Appeals in CA-G.R. No. 23763-R is affirmed. No Costs.
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Bengzon, C.J., Bautista, Angelo, Concepcion, Barrera, Paredes, Dizon
Regala, Makalintal, Bengzon, J.P., and Zaldivar, JJ., concur.
G.R. No. L-23079 February 27, 1970
RUBEN AUSTRIA, CONSUELO AUSTRIA-BENTA and LAURO AUSTRIA
MOZO, petitioners,
vs.
HON. ANDRES REYES, Judge, Court of First Instance of Rizal,
PERFECTO CRUZ, BENITA CRUZ-MENEZ ISAGANI CRUZ, ALBERTO
CRUZ and LUZ CRUZ-SALONGA respondents.
Salonga, Ordoñez, Yap, Sicat and Associates for petitioners.
Ruben Austria for himself and co-petitioners.
De los Santos, De los Santos and De los Santos for respondent Perfecto Cruz.
Villareal, Almacen, Navarra and Amores for other respondents.
CASTRO, J.:
On July 7, 1956 Basilia Austria vda. de Cruz filed with the Court of First
Instance of Rizal (Special Proceedings 2457) a petition for probate, ante
mortem, of her last will and testament. The probate was opposed by the
present petitioners Ruben Austria, Consuelo Austria-Benta and Lauro Austria
Mozo, and still others who, like the petitioner, are nephews and nieces of
Basilia. This opposition was, however, dismissed and the probate of the will
allowed after due hearing.
The bulk of the estate of Basilia, admittedly, was destined under the will to
pass on to the respondents Perfecto Cruz, Benita Cruz-Meñez, Isagani Cruz,
Alberto Cruz, and Luz Cruz-Salonga, all of whom had been assumed and
declared by Basilia as her own legally adopted children.
Page 17 of 36
Succession – 15 February 2017
On April 23, 1959, more than two years after her will was allowed to probate,
Basilia died. The respondent Perfecto Cruz was appointed executor without
bond by the same court in accordance with the provisions of the decedent's
will, notwithstanding the blocking attempt pursued by the petitioner Ruben
Austria.
Finally, on November 5, 1959, the present petitioners filed in the same
proceedings a petition in intervention for partition alleging in substance that
they are the nearest of kin of Basilia, and that the five respondents Perfecto
Cruz, et al., had not in fact been adopted by the decedent in accordance with
law, in effect rendering these respondents mere strangers to the decedent and
without any right to succeed as heirs.
Notwithstanding opposition by the respondent Perfecto Cruz, as executor of
the estate, the court a quo allowed the petitioners' intervention by its order of
December 22, 1959, couched in broad terms, as follows: "The Petition in
Intervention for Partition filed by the above-named oppositors [Ruben Austria,
et al.,] dated November 5, 1959 is hereby granted."
In the meantime, the contending sides debated the matter of authenticity or
lack of it of the several adoption papers produced and presented by the
respondents. On motion of the petitioners Ruben Austria, et al., these
documents were referred to the National Bureau of Investigation for
examination and advice. N.B.I. report seems to bear out the genuineness of
the documents, but the petitioners, evidently dissatisfied with the results,
managed to obtain a preliminary opinion from a Constabulary questioned-
document examiner whose views undermine the authenticity of the said
documents. The petitioners Ruben Austria, et al., thus moved the lower court
to refer the adoption papers to the Philippine Constabulary for further study.
The petitioners likewise located former personnel of the court which appeared
to have granted the questioned adoption, and obtained written depositions
from two of them denying any knowledge of the pertinent adoption
proceedings.
On February 6, 1963, more than three years after they were allowed to
intervene, the petitioners Ruben Austria, let al., moved the lower court to set
for hearing the matter of the genuineness of the adoption of the respondents
Perfecto Cruz, et al., by the late Basilia. Before the date set by the court for
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hearing arrived, however, the respondent Benita Cruz-Meñez who entered an
appearance separately from that of her brother Perfecto Cruz, filed on
February 28, 1963 a motion asking the lower court, by way of alternative relief,
to confine the petitioners' intervention, should it be permitted, to properties not
disposed of in the will of the decedent.
On March 4, 1963, the lower court heard the respondent Benita's motion. Both
sides subsequently submitted their respective memoranda, and finally, the
lower court issued an order on June 4, 1963, delimiting the petitioners'
intervention to the properties of the deceased which were not disposed of in
the will.
The petitioners moved the lower court to reconsider this latest order, eliciting
thereby an opposition, from the respondents. On October 25, 1963 the same
court denied the petitioners' motion for reconsideration.
A second motion for reconsideration which set off a long exchange of
memoranda from both sides, was summarily denied on April 21, 1964.
Hence this petition for certiorari, praying this Court to annul the orders of June
4 and October 25, 1963 and the order of April 21, 1964, all restricting
petitioners' intervention to properties that were not included in the decedent's
testamentary dispositions.
The uncontested premises are clear. Two interests are locked in dispute over
the bulk of the estate of the deceased. Arrayed on one side are the petitioners
Ruben Austria, Consuelo Austria-Benta and Lauro Austria Mozo, three of a
number of nephews and nieces who are concededly the nearest surviving
blood relatives of the decedent. On the other side are the respondents
brothers and sisters, Perfecto Cruz, Benita Cruz-Meñez, Isagani Cruz, Alberto
Cruz and Luz Cruz-Salonga, all of whom heirs in the will of the deceased
Basilia, and all of whom claim kinship with the decedent by virtue of legal
adoption. At the heart of the controversy is Basilia's last will — immaculate in
its extrinsic validity since it bears the imprimatur of duly conducted probate
proceedings.
The complaint in intervention filed in the lower court assails the legality of the
tie which the respondent Perfecto Cruz and his brothers and sisters claim to
Page 18 of 36
Succession – 15 February 2017
have with the decedent. The lower court had, however, assumed, by its orders Coming closer to the center of the controversy, the petitioners have called the
in question, that the validity or invalidity of the adoption is not material nor attention of the lower court and this Court to the following pertinent portions of
decisive on the efficacy of the institution of heirs; for, even if the adoption in the will of the deceased which recite:
question were spurious, the respondents Perfecto Cruz, et al., will
nevertheless succeed not as compulsory heirs but as testamentary heirs III
instituted in Basilia's will. This ruling apparently finds support in article, 842 of
the Civil Code which reads: Ang aking mga sapilitang tagapagmana (herederos forzosos)
ay ang aking itinuturing na mga anak na tunay (Hijos
One who has no compulsory heirs may dispose of by will all his legalmente adoptados) na sina Perfecto, Alberto, Luz, Benita at
estate or any part of it in favor of any person having capacity to Isagani, na pawang may apelyidong Cruz.
succeed.
xxx xxx xxx
One who has compulsory heirs may dispose of his estate
provided he does not contravene the provisions of this Code Kung ako ay bawian ng Dios ng buhay, ay aking ipinamamana
with regard to the legitime of said heirs. ang aking mga ari-ariang maiiwan, sa kaparaanang
sumusunod:
The lower court must have assumed that since the petitioners nephews and
niece are not compulsory heirs, they do not possess that interest which can be A.—Aking ipinamamana sa aking nabanggit na limang anak na
prejudiced by a free-wheeling testamentary disposition. The petitioners' sina Perfecto, Alberto, Luz, Benita at Isagani, na pawang may
interest is confined to properties, if any, that have not been disposed of in the apelyidong Cruz, na parepareho ang kaparti ng bawa't isa at
will, for to that extent intestate succession can take place and the question of walang lamangan (en partes iguales), bilang kanilang
the veracity of the adoption acquires relevance. sapilitang mana (legiti[ma]), ang kalahati (½) ng aking kaparti
sa lahat ng aming ari-ariang gananciales ng aking yumaong
The petitioners nephews and niece, upon the other hand, insist that the entire asawang Pedro Cruz na napapaloob sa Actuacion Especial
estate should descend to them by intestacy by reason of the intrinsic nullity of No. 640 ng Hukumang Unang Dulugan ng Rizal at itinutukoy sa
the institution of heirs embodied in the decedent's will. They have thus raised No. 1 ng parafo IV ng testamentong ito, ang kalahati (½) ng
squarely the issue of whether or not such institution of heirs would retain mga lagay na lupa at palaisdaan na nasa Obando at Polo,
efficacy in the event there exists proof that the adoption of the same heirs by Bulacan, na namana ko sa aking yumaong ama na si Calixto
the decedent is false. Austria, at ang kalahati (½) ng ilang lagay na lupa na nasa
Tinejeros, Malabon, Rizal, na aking namana sa yumao kong
The petitioners cite, as the controlling rule, article 850 of the Civil Code which kapatid na si Fausto Austria.
reads:
The tenor of the language used, the petitioners argue, gives rise to the
The statement of a false cause for the institution of an heir shall inference that the late Basilia was deceived into believing that she was legally
be considered as not written, unless it appears from the will bound to bequeath one-half of her entire estate to the respondents Perfecto
that the testator would not have made such institution if he had Cruz, et al. as the latter's legitime. The petitioners further contend that had the
known the falsity of such cause. deceased known the adoption to be spurious, she would not have instituted
the respondents at all — the basis of the institution being solely her belief that
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Page 19 of 36
Succession – 15 February 2017
they were compulsory heirs. Proof therefore of the falsity of the adoption would
cause a nullity of the institution of heirs and the opening of the estate wide to
intestacy. Did the lower court then abuse its discretion or act in violation of the
rights of the parties in barring the petitioners nephews and niece from
registering their claim even to properties adjudicated by the decedent in her
will?
Before the institution of heirs may be annulled under article 850 of the Civil
Code, the following requisites must concur: First, the cause for the institution of
heirs must be stated in the will; second, the cause must be shown to be false;
and third, it must appear from the face of the will that the testator would not
have made such institution if he had known the falsity of the cause.
The petitioners would have us imply, from the use of the terms, "sapilitang
tagapagmana" (compulsory heirs) and "sapilitang mana" (legitime), that the
impelling reason or cause for the institution of the respondents was the
testatrix's belief that under the law she could not do otherwise. If this were
indeed what prompted the testatrix in instituting the respondents, she did not
make it known in her will. Surely if she was aware that succession to the
legitime takes place by operation of law, independent of her own wishes, she
would not have found it convenient to name her supposed compulsory heirs to
their legitimes. Her express adoption of the rules on legitimes should very well
indicate her complete agreement with that statutory scheme. But even this, like
the petitioners' own proposition, is highly speculative of what was in the mind
of the testatrix when she executed her will. One fact prevails, however, and it
is that the decedent's will does not state in a specific or unequivocal manner
the cause for such institution of heirs. We cannot annul the same on the basis
of guesswork or uncertain implications.
And even if we should accept the petitioners' theory that the decedent
instituted the respondents Perfecto Cruz, et al. solely because she believed
that the law commanded her to do so, on the false assumption that her
adoption of these respondents was valid, still such institution must stand.
Article 850 of the Civil Code, quoted above, is a positive injunction to ignore
whatever false cause the testator may have written in his will for the institution
of heirs. Such institution may be annulled only when one is satisfied, after an
examination of the will, that the testator clearly would not have made the
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institution if he had known the cause for it to be false. Now, would the late
Basilia have caused the revocation of the institution of heirs if she had known
that she was mistaken in treating these heirs as her legally adopted children?
Or would she have instituted them nonetheless?
The decedent's will, which alone should provide the answer, is mute on this
point or at best is vague and uncertain. The phrases, "mga sapilitang
tagapagmana" and "sapilitang mana," were borrowed from the language of the
law on succession and were used, respectively, to describe the class of heirs
instituted and the abstract object of the inheritance. They offer no absolute
indication that the decedent would have willed her estate other than the way
she did if she had known that she was not bound by law to make allowance for
legitimes. Her disposition of the free portion of her estate (libre disposicion)
which largely favored the respondent Perfecto Cruz, the latter's children, and
the children of the respondent Benita Cruz, shows a perceptible inclination on
her part to give to the respondents more than what she thought the law
enjoined her to give to them. Compare this with the relatively small devise of
land which the decedent had left for her blood relatives, including the
petitioners Consuelo Austria-Benta and Lauro Mozo and the children of the
petitioner Ruben Austria. Were we to exclude the respondents Perfecto Cruz,
et al. from the inheritance, then the petitioners and the other nephews and
nieces would succeed to the bulk of the testate by intestacy — a result which
would subvert the clear wishes of the decedent.
Whatever doubts one entertains in his mind should be swept away by these
explicit injunctions in the Civil Code: "The words of a will are to receive an
interpretation which will give to every expression some effect, rather than one
which will render any of the expressions inoperative; and of two modes of
interpreting a will, that is to be preferred which will prevent intestacy." 1
Testacy is favored and doubts are resolved on its side, especially where the
will evinces an intention on the part of the testator to dispose of practically his
whole estate,2 as was done in this case. Moreover, so compelling is the principle
that intestacy should be avoided and the wishes of the testator allowed to prevail,
that we could even vary the language of the will for the purpose of giving it
effect.3 A probate court has found, by final judgment, that the late Basilia Austria
Vda. de Cruz was possessed of testamentary capacity and her last will executed
free from falsification, fraud, trickery or undue influence. In this situation, it
becomes our duty to give full expression to her will.4
Page 20 of 36
Succession – 15 February 2017
At all events, the legality of the adoption of the respondents by the testatrix can
be assailed only in a separate action brought for that purpose, and cannot be
the subject of a collateral attack.5
To the petitioners' charge that the lower court had no power to reverse its
order of December 22, 1959, suffice it to state that, as borne by the records,
the subsequent orders complained of served merely to clarify the first — an act
which the court could legally do. Every court has the inherent power to amend
and control its processes and orders so as to make them conformable to law
and justices.6 That the court a quo has limited the extent of the petitioners'
intervention is also within its powers as articulated by the Rules of Court. 7
ACCORDINGLY, the present petition is denied, at petitioners cost.
Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Fernando,
Teehankee, Barredo and Villamor, JJ., concur.
Footnotes
1 Article 791.
2 53 Cal. Jur. 2d 678.
3 Rodriguez v. Court of Appeals, L-28734, March 24, 1969, 27
SCRA 546, 552; Solla v. Ascueta, 49 Phil. 333, 347-348.
4 Ibid, citing Barrera v. Tampoco, 94 Phil. 346, 353.
5 See Gomez v. Concepcion, 47 Phil. 717; Ramos v. Mañalac,
89 Phil. 270; Santos v. Aranzaso, L-23828, Feb. 28, 1966 16
SCRA 352.
6 Sec. 5, par. (g), Rules of Court.
7 Sec. 2, par. (b), Ibid; Seva, et al. v. Rivera, etc., 73 Phil. 477,
479-480, cited in Moran, Comments on the Rules of Court,
1963 edition, Vol. I, pp. 354-355.
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G.R. No. L-17818 January 25, 1967
TIRSO T. REYES, as guardian of the minors Azucena Flordelis and Tirso,
Jr., all surnamed Reyes y Barretto,plaintiffs-appellants,
vs.
LUCIA MILAGROS BARRETTO-DATU, defendant-appellee.
Recto Law Office for plaintiff-appealant.
Deogracias T. Reyes and Associates for defendant-appellee.
REYES, J.B.L., J.:
Direct appeal from a judgment of the Court of First Instance of Bulacan, in its
Civil Case No. 1084, dismissing the complaint of appellant Tirso T. Reyes and
ordering the same to deliver to the defendant-appellee, Lucia Milagros
Barretto-Datu, the properties receivea by his deceasea wife under the terms of
the will of the late Bibiano Barretto, consisting of lots in Manila, Rizal,
Pampanga and Bulacan, valued at more than P200,000.
The decision appealed from sets the antecedents of the case to be as follows:
"This is an action to recover one-half share in the fishpond, located in
the barrio of San Roque, Hagonoy, Bulacan, covered by Transfer
Certificate of Title No. T-13734 of the Land Records of this Province,
being the share of plaintiff's wards as minor heirs of the deceased
Salud Barretto, widow of plaintiff Tirso Reyes, guardian of said minors."
It appears that Bibiano Barretto was married to Maria Gerardo. During their
lifetime they acquired a vast estate, consisting of real properties in Manila,
Pampanga, and Bulacan, covered by Transfer Certificates of Title Nos. 41423,
22443, 8858, 32989, 31046, 27285, 6277, 6500, 2057, 6501, 2991, 57403 and
12507/T-337.
When Bibiano Barretto died on February 18, 1936, in the City of Manila, he left
his share of these properties in a will Salud Barretto, mother of plaintiff's
Page 21 of 36
Succession – 15 February 2017
wards, and Lucia Milagros Barretto and a small portion as legacies to his two
sisters Rosa Barretto and Felisa Barretto and his nephew anä nieces® The
usufruct oæ the fishponä situateä iî barrio Saî Roque¬ Hagonoy, Bulacan,
above-mentioned, however, was reserved for his widow, Maria Gerardo® Iî the
meantime¬ Maria Gerardo was appointeä administratrix. By virtue thereof, she
prepared a project of partition, which was signed by her in her own behalf and
as guardian of the minor Milagros Barretto. Said project of partition was
approved by the Court of First Instance of Manila on November 22, 1939. The
distribution of the estate and the delivery of the shares of the heirs followed
forthwith. As a consequence, Salud Barretto took immediate possession of her
share and secured the cancellation of the original certificates of title and the
issuance of new titles in her own name.
Everything went well since then. Nobody was heard to complain of any
irregularity in the distribution of the said estate until the widow, Maria Gerardo
died on March 5, 1948. Upon her death, it was discovered that she had
executed two wills, in the first of which, she instituted Salud and Milagros, both
surnamed Barretto, as her heirs; and, in the second, she revoked the same
and left all her properties in favor of Milagros Barretto alone. Thus, the later will
was allowed and the first rejected. In rejecting the first will presented by Tirso
Reyes, as guardian of the children of Salud Barretto, the lower court held that
Salud was not the daughter of the decedent Maria Gerardo by her husband
Bibiano Barretto. This ruling was appealed to the Supreme Court, which
affirmed the same.1
Having thus lost this fight for a share in the estate of Maria Gerardo, as a
legitimate heir of Maria Gerardo, plaintiff now falls back upon the remnant of
the estate of the deceased Bibiano Barretto, which was given in usufruct to his
widow Maria Gerardo. Hence, this action for the recovery of one-half portion,
thereof.
This action afforded the defendant an opportunity to set up her right of
ownership, not only of the fishpond under litigation, but of all the other
properties willed and delivered to Salud Barretto, for being a spurious heir, and
not entitled to any share in the estate of Bibiano Barretto, thereby directly
attacking the validity, not only of the project of partition, but of the decision of
the court based thereon as well.
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The defendant contends that the Project of Partition from which Salud acquired
the fishpond in question is void ab initio and Salud Barretto did not acquire any
valid title thereto, and that the court did not acquire any jurisdiction of the
person of the defendant, who was then a minor.'
Finding for the defendant (now appellee), Milagros Barretto, the lower court
declared the project of partition submitted in the proceedings for the settlement
of the estate of Bibiano Barretto (Civil Case No. 49629 of the Court of First
Instance of Manila) to be null and void ab initio (not merely voidable) because
the distributee, Salud Barretto, predecessor of plaintiffs (now appellants), was
not a daughter of the spouses Bibiano Barretto and Maria Gerardo. The nullity
of the project of partition was decreed on the basis of Article 1081 of the Civil
Code of 1889 (then in force) providing as follows: .
A partition in which a person was believed to be an heir, without being
so, has been included, shall be null and void.
The court a quo further rejected the contention advanced by plaintiffs that
since Bibiano Barretto was free to dispose of one-third (1/3) of his estate under
the old Civil Code, his will was valid in favor of Salud Barretto (nee Lim Boco)
to the extent, at least, of such free part. And it concluded that, as defendant
Milagros was the only true heir of Bibiano Barretto, she was entitled to recover
from Salud, and from the latter's children and successors, all the Properties
received by her from Bibiano's estate, in view of the provisions of Article 1456
of the new Civil Code of the Philippines establishing that property acquired by
fraud or mistake is held by its acquirer in implied trust for the real owner.
Hence, as stated at the beginning of this opinion, the Court a quo not only
dismissed the plaintiffs' complaint but ordered them to return the properties
received under the project of partition previously mentioned as prayed for in
defendant Milagros Barretto's counterclaim. However, it denied defendant's
prayer for damages. Hence, this appeal interposed by both plaintiffs and
defendant.
Plaintiffs-appellants correctly point out that Article 1081 of the old Civil Code
has been misapplied to the present case by the court below. The reason is
obvious: Salud Barretto admittedly had been instituted heir in the late Bibiano
Barretto's last will and testament together with defendant Milagros; hence, the
partition had between them could not be one such had with a party who was
Page 22 of 36
Succession – 15 February 2017
believed to be an heir without really being one, and was not null and void
under said article. The legal precept (Article 1081) does not speak of children,
or descendants, but of heirs (without distinction between forced, voluntary or
intestate ones), and the fact that Salud happened not to be a daughter of the
testator does not preclude her being one of the heirs expressly named in his
testament; for Bibiano Barretto was at liberty to assign the free portion of his
estate to whomsoever he chose. While the share (½) assigned to Salud
impinged on the legitime of Milagros, Salud did not for that reason cease to be
a testamentary heir of Bibiano Barretto.
Nor does the fact that Milagros was allotted in her father's will a share smaller
than her legitime invalidate the institution of Salud as heir, since there was
here no preterition, or total ommission of a forced heir. For this reason, Neri vs.
Akutin, 72 Phil. 322, invoked by appellee, is not at all applicable, that case
involving an instance of preterition or omission of children of the testator's
former marriage.
Appellee contends that the partition in question was void as a compromise on
the civil status of Salud in violation of Article 1814 of the old Civil Code. This
view is erroneous, since a compromise presupposes the settlement of a
controversy through mutual concessions of the parties (Civil Code of 1889,
Article 1809; Civil Code of the Philippines, Art. 2028); and the condition of
Salud as daughter of the testator Bibiano Barretto, while untrue, was at no time
disputed during the settlement of the estate of the testator. There can be no
compromise over issues not in dispute. And while a compromise over civil
status is prohibited, the law nowhere forbids a settlement by the parties over
the share that should correspond to a claimant to the estate.
At any rate, independently of a project of partition which, as its own name
implies, is merely a proposal for distribution of the estate, that the court may
accept or reject, it is the court alone that makes the distribution of the estate
and determines the persons entitled thereto and the parts to which each is
entitled (Camia vs. Reyes, 63 Phil. 629, 643; Act 190, Section 750; Rule 90,
Rules of 1940; Rule 91, Revised Rules of Court), and it is that judicial decree
of distribution, once final, that vests title in the distributees. If the decree was
erroneous or not in conformity with law or the testament, the same should
have been corrected by opportune appeal; but once it had become final, its
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binding effect is like that of any other judgment in rem, unless properly set
aside for lack of jurisdiction or fraud.
It is thus apparent that where a court has validly issued a decree of distribution
of the estate, and the same has become final, the validity or invalidity of the
project of partition becomes irrelevant.
It is, however, argued for the appellee that since the court's distribution of the
estate of the late Bibiano Barretto was predicated on the project of partition
executed by Salud Barretto and the widow, Maria Gerardo (who signed for
herself and as guardian of the minor Milagros Barretto), and since no evidence
was taken of the filiation of the heirs, nor were any findings of fact or law
made, the decree of distribution can have no greater validity than that of the
basic partition, and must stand or fall with it, being in the nature of a judgment
by consent, based on a compromise. Saminiada vs. Mata, 92 Phil. 426, is
invoked in support of the proposition. That case is authority for the proposition
that a judgment by compromise may be set aside on the ground of mistake or
fraud, upon petition filed in due time, where petition for "relief was filed before
the compromise agreement a proceeding, was consummated" (cas. cit. at p.
436). In the case before us, however, the agreement of partition was not only
ratified by the court's decree of distribution, but actually consummated, so
much so that the titles in the name of the deceased were cancelled, and new
certificates issued in favor of the heirs, long before the decree was attacked.
Hence, Saminiada vs. Mata does not apply.
Moreover, the defendant-appellee's argument would be plausible if it were
shown that the sole basis for the decree of distribution was the project of
partition. But, in fact, even without it, the distribution could stand, since it was
in conformity with the probated will of Bibiano Barretto, against the provisions
whereof no objection had been made. In fact it was the court's duty to do so.
Act 190, section 640, in force in 1939, provided: .
SEC. 640. Estate, How Administered. — When a will is thus allowed,
the court shall grant letters testamentary, or letters of administration
with the will annexed, and such letters testamentary or of
administration, shall extend to all the estate of the testator in the
Philippine Islands. Such estate, after the payment of just debts and
expenses of administration, shall be disposed of according to such will,
Page 23 of 36
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 so far as such will may operate upon it; and the residue, if any, shall be
disposed of as is provided by law in cases of estates in these Islands
belonging to persons who are inhabitants of another state or country.
(Emphasis supplied)
That defendant Milagros Barretto was a minor at the time the probate court
distributed the estate of her father in 1939 does not imply that the said court
was without jurisdiction to enter the decree of distribution. Passing upon a like
issue, this Court ruled in Ramos vs. Ortuzar, 89 Phil. Reports, pp. 741 and
742:
If we are to assume that Richard Hill and Marvin Hill did not formally
intervene, still they would be concluded by the result of the
proceedings, not only as to their civil status but as the distribution of
the estate as well. As this Court has held in Manolo vs. Paredes, 47
Phil. 938, "The proceeding for probate is one in rem (40 Cyc., 1265)
and the court acquires jurisdiction over all persons interested, through
the publication of the notice prescribed by section 630 C.P.C.; and any
order that any be entered therein is binding against all of them." (See
also in re Estate of Johnson, 39 Phil. 156.) "A final order of distribution
of the estate of a deceased person vests the title to the land of the
estate in the distributees". (Santos vs. Roman Catholic Bishop of
Nueva Caceres, 45 Phil. 895.) There is no reason why, by analogy,
these salutary doctrines should not apply to intestate proceedings.
The only instance that we can think of in which a party interested in a
probate proceeding may have a final liquidation set aside is when he is
left out by reason of circumstances beyond his control or through
mistake or inadvertence not imputable to negligence. Even then, the
better practice to secure relief is reopening of the same case by proper
motion within the reglementary period, instead of an independent
action the effect of which, if successful, would be, as in the instant
case, for another court or judge to throw out a decision or order already
final and executed and reshuffle properties long ago distributed and
disposed of.
It is well to observe, at this juncture, as this Court expressly declared in Reyes
vs. Barretto Datu, 94 Phil. 446 (Am'd Rec. Appeal, pp. 156, 157), that:
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... It is argued that Lucia Milagros Barretto was a minor when she
signed the partition, and that Maria Gerardo was not her judicially
appointed guardian. The claim is not true. Maria Gerardo signed as
guardian of the minor. (Secs. 3 and 5, Rule 97, Rules of Court.) The
mere statement in the project of partion that the guardianship
proceedings of the minor Lucia Milagros Barretto are pending in the
court, does not mean that the guardian had not yet been appointed; it
meant that the guardianship proceedings had not yet been terminated,
and as a guardianship proceedings begin with the appointment of a
guardian, Maria Gerardo must have been already appointed when she
signed the project of partition. There is, therefore, no irregularity or
defect or error in the project of partition, apparent on the record of the
testate proceedings, which shows that Maria Gerardo had no power or
authority to sign the project of partition as guardian of the minor Lucia
Milagros Barretto, and, consequently, no ground for the contention that
the order approving the project of partition is absolutely null and void
and may be attacked collaterally in these proceedings.
So that it is now incontestable that appellee Milagros Barretto was not only
made a party by publication but actually appeared and participated in the
proceedings through her guardian: she, therefore, can not escape the
jurisdiction of the Manila Court of First Instance which settled her father's
estate.
Defendant-appellee further pleads that as her mother and guardian (Maria
Gerardo) could not have ignored that the distributee Salud was not her child,
the act of said widow in agreeing to the oft-cited partition and distribution was a
fraud on appellees rights and entitles her to relief. In the first place, there is no
evidence that when the estate of Bibiano Barretto was judicially settled and
distributed appellants' predecessor, Salud Lim Boco Barretto to, knew that she
was not Bibiano's child: so that if fraud was committed, it was the widow, Maria
Gerardo, who was solely responsible, and neither Salud nor her minor
children, appellants herein, can be held liable therefor. In the second
placegranting that there was such fraud, relief therefrom can only be obtained
within 4 years from its discovery, and the record shows that this period had
elapsed long ago.
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Because at the time of the distribution Milagros Barretto was only 16 years old
(Exhibit 24), she became of age five years later, in 1944. On that year, her
cause of action accrued to contest on the ground of fraud the court decree
distributing her father's estate and the four-year period of limitation started to
run, to expire in 1948 (Section 43, Act. 190). In fact, conceding that Milagros
only became aware of the true facts in 1946 (Appellee's Brief, p. 27), her
action still became extinct in 1950. Clearly, therefore, the action was already
barred when in August 31, 1956 she filed her counterclaim in this case
contesting the decree of distribution of Bibiano Barretto's estate.
said decision, and the same is affirmed in so far as it denies any right of said
appellee to accounting. Let the records be returned to the court of origin, with
instructions to proceed with the action for partition of the fishpond (Lot No. 4,
Plan Psu-4709), covered by TCT No. T-13734 of the Office of the Register of
Deeds of Bulacan, and for the accounting of the fruits thereof, as prayed for in
the complaint No costs.
Concepcion, C.J., Dizon, Regala, Makalintal, Bengzon, J.P., Zaldivar, Sanchez
and Castro, JJ., concur.

In order to evade the statute of limitations, Milagros Barretto introduced Footnotes

evidence that appellant Tirso Reyes had induced her to delay filing action by
verbally promising to reconvey the properties received by his deceased wife, 1 Reyes vs. Barretto, G.R. No. L-5831, Jan. 31, 1956.
Salud. There is no reliable evidence of the alleged promise, which rests
exclusively on the oral assertions of Milagros herself and her counsel. In fact,
the trial court made no mention of such promise in the decision under appeal.
Even more: granting arguendo that the promise was made, the same can not
bind the wards, the minor children of Salud, who are the real parties in interest. G.R. No. L-23445 June 23, 1966
An abdicative waiver of rights by a guardian, being an act of disposition, and
not of administration, can not bind his wards, being null and void as to them REMEDIOS NUGUID, petitioner and appellant,
unless duly authorized by the proper court (Ledesma Hermanos vs. Castro, 55 vs.
Phil. 136, 142). FELIX NUGUID and PAZ SALONGA NUGUID, oppositors and appellees.

In resume, we hold (1) that the partition had between Salud and Milagros Custodio O. Partade for petitioner and appellant.
Barretto in the proceedings for the settlement of the estate of Bibiano Barretto Beltran, Beltran and Beltran for oppositors and appellees.
duly approved by the Court of First Instance of Manila in 1939, in its Civil Case
No. 49629, is not void for being contrary to either Article 1081 or 1814 of the, SANCHEZ, J.:
Civil Code of 1889; (2) that Milagros Barretto's action to contest said partition
and decree of distribution is barred by the statute of limitations; and (3) that her
Rosario Nuguid, a resident of Quezon City, died on December 30, 1962,
claim that plaintiff-appellant guardian is a possessor in bad faith and should
single, without descendants, legitimate or illegitimate. Surviving her were her
account for the fruits received from the properties inherited by Salud Barretto
legitimate parents, Felix Nuguid and Paz Salonga Nuguid, and six (6) brothers
(nee Lim Boco) is legally untenable. It follows that the plaintiffs' action for
and sisters, namely: Alfredo, Federico, Remedios, Conrado, Lourdes and
partition of the fishpond described in the complaint should have been given
Alberto, all surnamed Nuguid.
due course.
On May 18, 1963, petitioner Remedios Nuguid filed in the Court of First
Wherefore, the decision of the Court of First Instance of Bulacan now under
Instance of Rizal a holographic will allegedly executed by Rosario Nuguid on
appeal is reversed and set aside in so far as it orders plaintiff-appellant to
November 17, 1951, some 11 years before her demise. Petitioner prayed that
reconvey to appellee Milagros Barretto Datu the properties enumeracted in

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Page 25 of 36
Succession – 15 February 2017
said will be admitted to probate and that letters of administration with the will
annexed be issued to her.
On June 25, 1963, Felix Nuguid and Paz Salonga Nuguid, concededly the
legitimate father and mother of the deceased Rosario Nuguid, entered their
opposition to the probate of her will. Ground therefor, inter alia, is that by the
institution of petitioner Remedios Nuguid as universal heir of the deceased,
oppositors — who are compulsory heirs of the deceased in the direct
ascending line — were illegally preterited and that in consequence the
institution is void.
On August 29, 1963, before a hearing was had on the petition for probate and
objection thereto, oppositors moved to dismiss on the ground of absolute
preterition.
On September 6, 1963, petitioner registered her opposition to the motion to
dismiss. 1äwphï1.ñët
The court's order of November 8, 1963, held that "the will in question is a
complete nullity and will perforce create intestacy of the estate of the deceased
Rosario Nuguid" and dismissed the petition without costs.
A motion to reconsider having been thwarted below, petitioner came to this
Court on appeal.
1. Right at the outset, a procedural aspect has engaged our attention. The
case is for the probate of a will. The court's area of inquiry is limited — to an
examination of, and resolution on, the extrinsic validity of the will. The due
execution thereof, the testatrix's testamentary capacity, and the compliance
with the requisites or solemnities by law prescribed, are the questions solely to
be presented, and to be acted upon, by the court. Said court at this stage of
the proceedings — is not called upon to rule on the intrinsic validity or efficacy
of the provisions of the will, the legality of any devise or legacy therein.1
A peculiar situation is here thrust upon us. The parties shunted aside the
question of whether or not the will should be allowed probate. For them, the
meat of the case is the intrinsic validity of the will. Normally, this comes only
after the court has declared that the will has been duly authenticated.2 But
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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
Page 26 of 36
Succession – 15 February 2017
 execution of the will or born after the death of the testator, shall annul
the institution of heir; but the devises and legacies shall be valid insofar
as they are not inofficious. ...
Except for inconsequential variation in terms, the foregoing is a reproduction of
Article 814 of the Civil Code of Spain of 1889, which is similarly herein copied,
thus —
Art. 814. The preterition of one or all of the forced heirs in the direct
line, whether living at the time of the execution of the will or born after
the death of the testator, shall void the institution of heir; but the
legacies and betterments4 shall be valid, in so far as they are not
inofficious. ...
A comprehensive understanding of the term preterition employed in the law
becomes a necessity. On this point Manresa comments:
La pretericion consiste en omitar al heredero en el testamento. O no se
le nombra siquiera o aun nombrandole como padre, hijo, etc., no se le
instituya heredero ni se le deshereda expresamente ni se le asigna
parte alguna de los bienes, resultando privado de un modo tacito de su
derecho a legitima.
Para que exista pretericion, con arreglo al articulo 814, basta que en el
testamento omita el testador a uno cualquiera de aquellos a quienes
por su muerte corresponda la herencia forzosa.
Se necesita, pues, a) Que la omision se refiera a un heredero forzoso.
b) Que la omision sea completa; que el heredero forzoso nada reciba
en el testamento.
It may now appear trite bat nonetheless helpful in giving us a clear perspective
of the problem before us, to have on hand a clear-cut definition of the
word annul:
To "annul" means to abrogate, to make void ... In re Morrow's Estate,
54 A. 342, 343, 204 Pa. 484.6
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The word "annul" as used in statute requiring court to annul alimony
provisions of divorce decree upon wife's remarriage means to reduce
to nothing; to annihilate; obliterate; blot out; to make void or of no
effect; to nullify; to abolish. N.J.S.A. 2:50 — 38 (now N.J.S. 2A:34-35).
Madden vs. Madden, 40 A. 2d 611, 614, 136 N..J Eq. 132.7
ANNUL. To reduce to nothing; annihilate; obliterate; to make void or of
no effect; to nullify; to abolish; to do away with. Ex parte Mitchell, 123
W. Va. 283, 14 S.E. 2d. 771, 774.8
And now, back to the facts and the law. The deceased Rosario Nuguid left no
descendants, legitimate or illegitimate. But she left forced heirs in the direct
ascending line her parents, now oppositors Felix Nuguid and Paz Salonga
Nuguid. And, the will completely omits both of them: They thus received
nothing by the testament; tacitly, they were deprived of their legitime; neither
were they expressly disinherited. This is a clear case of preterition. Such
preterition in the words of Manresa "anulara siempre la institucion de heredero,
dando caracter absoluto a este ordenamiento referring to the mandate of
Article 814, now 854 of the Civil Code.9 The one-sentence will here institutes
petitioner as the sole, universal heir — nothing more. No specific legacies or
bequests are therein provided for. It is in this posture that we say that the
nullity is complete. Perforce, Rosario Nuguid died intestate. Says Manresa:
En cuanto a la institucion de heredero, se anula. Lo que se anula deja
de existir, en todo o en parte? No se añade limitacion alguna, como en
el articulo 851, en el que se expresa que se anulara la institucion de
heredero en cuanto prejudique a la legitima del deseheredado Debe,
pues, entenderse que la anulacion es completa o total, y que este
articulo como especial en el caso que le motiva rige con preferencia al
817. 10
The same view is expressed by Sanchez Roman: —
La consecuencia de la anulacion o nulidad de la institucion de
heredero por pretericion de uno, varios o todos los forzosos en linea
recta, es la apertura de la sucesion intestada total o parcial. Sera total,
cuando el testador que comete la pretericion, hubiese dispuesto de
todos los bienes por titulo universal de herencia en favor de los
Page 27 of 36
Succession – 15 February 2017
 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
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interpretacion, desvirtuando y anulando por este procedimiento lo que
el legislador quiere establecer. 12
3. We should not be led astray by the statement in Article 854 that, annullment
notwithstanding, "the devises and legacies shall be valid insofar as they are
not inofficious". Legacies and devises merit consideration only when they are
so expressly given as such in a will. Nothing in Article 854 suggests that
the mere institution of a universal heir in a will — void because of preterition —
would give the heir so instituted a share in the inheritance. As to him, the will is
inexistent. There must be, in addition to such institution, a testamentary
disposition granting him bequests or legacies apart and separate from the
nullified institution of heir. Sanchez Roman, speaking of the two component
parts of Article 814, now 854, states that preterition annuls the institution of the
heir "totalmente por la pretericion"; but added (in reference to legacies and
bequests) "pero subsistiendo ... todas aquellas otras disposiciones que no se
refieren a la institucion de heredero ... . 13 As Manresa puts it, annulment
throws open to intestate succession the entire inheritance including "la porcion
libre (que) no hubiese dispuesto en virtud de legado, mejora o donacion. 14
As aforesaid, there is no other provision in the will before us except the
institution of petitioner as universal heir. That institution, by itself, is null and
void. And, intestate succession ensues.
4. Petitioner's mainstay is that the present is "a case of ineffective
disinheritance rather than one of preterition". 15From this, petitioner draws the
conclusion that Article 854 "does not apply to the case at bar". This argument
fails to appreciate the distinction between pretention and disinheritance.
Preterition "consists in the omission in the testator's will of the forced heirs or
anyone of them, either because they are not mentioned therein, or, though
mentioned, they are neither instituted as heirs nor are expressly
disinherited." 16 Disinheritance, in turn, "is a testamentary disposition depriving
any compulsory heir of his share in the legitime for a cause authorized by law.
" 17 In Manresa's own words: "La privacion expresa de la legitima constituye
la desheredacion. La privacion tacita de la misma se
denomina pretericion." 18 Sanchez Roman emphasizes the distinction by
stating that disinheritance "es siempre voluntaria"; preterition, upon the other
Page 28 of 36
Succession – 15 February 2017
hand, is presumed to be "involuntaria". 19 Express as disinheritance should be,
the same must be supported by a legal cause specified in the will itself. 20
The will here does not explicitly disinherit the testatrix's parents, the forced
heirs. It simply omits their names altogether. Said will rather than be labeled
ineffective disinheritance is clearly one in which the said forced heirs suffer
from preterition.
On top of this is the fact that the effects flowing from preterition are totally
different from those of disinheritance. Preterition under Article 854 of the Civil
Code, we repeat, "shall annul the institution of heir". This annulment is in toto,
unless in the will there are, in addition, testamentary dispositions in the form of
devises or legacies. In ineffective disinheritance under Article 918 of the same
Code, such disinheritance shall also "annul the institution of heirs", put only
"insofar as it may prejudice the person disinherited", which last phrase was
omitted in the case of preterition. 21 Better stated yet, in disinheritance the
nullity is limited to that portion of the estate of which the disinherited heirs have
been illegally deprived. Manresa's expressive language, in commenting on the
rights of the preterited heirs in the case of preterition on the one hand and
legal disinheritance on the other, runs thus: "Preteridos, adquiren el derecho a
todo; desheredados, solo les corresponde un tercio o dos tercios, 22 el caso. 23
5. Petitioner insists that the compulsory heirs ineffectively disinherited are
entitled to receive their legitimes, but that the institution of heir "is not
invalidated," although the inheritance of the heir so instituted is reduced to the
extent of said legitimes. 24
This is best answered by a reference to the opinion of Mr. Chief Justice Moran
in the Neri case heretofore cited, viz:
But the theory is advanced that the bequest made by universal title in
favor of the children by the second marriage should be treated
as legado and mejora and, accordingly, it must not be entirely annulled
but merely reduced. This theory, if adopted, will result in a complete
abrogation of Articles 814 and 851 of the Civil Code. If every case of
institution of heirs may be made to fall into the concept of legacies and
betterments reducing the bequest accordingly, then the provisions of
Articles 814 and 851 regarding total or partial nullity of the institution,
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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.
Concepcion, C.J., Reyes, J.B.L., Barrera, Dizon, Regala, Makalintal, Bengzon,
J.P. and Zaldivar, JJ., concur.
Footnotes
1
Castañeda vs. Alemany, 3 Phil. 426, 428; Pimentel vs. Palanca, etc.,
et al., 5 Phil. 436, 440-441; Limjuco vs. Ganara, 11 Phil. 393, 394-395;
Montañano vs. Suesa, 14 Phil. 676, 679; Riera vs. Palmorali, et al., 40
Phil. 105, 116; In re Estate of Johnson, 39 Phil. 156, 174; Palacios vs.
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 Palacios, 58 O.G. No. 2, 220, 221; Teotico vs. Del Val, etc., L-18753, 14 Manresa, id., p. 434.
March 26, 1965.
15 Petitioner's brief, p. 15.
2 Section 13, Rule 76 of the Rules of Court.
16 Neri, et al. vs. Akutin, et al., supra, 72 Phil., at p. 325.
3Section 2, Rule 1, Rules of Court. Case, et al. vs. Jugo, et al., 77 Phil.
517, 522. 17 Justice J.B.L. Reyes and Judge R.C. Puno, id., p. 106.

Betterments are eliminated in the present Civil Code. II Padilla, Civil

4 18Manresa, id., p. 424. Justice Reyes and Judge Puno, id., 107,
Code Annotated, p. 1077. speaking of the requisites of a valid disinheritance, confirm the theory
that disinheritance "must be express (not implied) (Art. 918 ; otherwise
5
VI Manresa, Commentarios al Codigo Civil Español, 7th Edition, there is preterition".
(1951), p. 424.
19 Sanchez Roman, id., p. 1131.
Words & Phrases, Vol. 3A, Permanent Ed., p. 3.
6

Arts. 915, 916, Civil Code; II Padilla, Civil Code Annotated, pp. 750-
20

7 Id., p. 4. 752.

8 Black's Law Dictionary, 4th ed., p. 117. 21 III Tolentino, Civil Code of the Philippines, 1961 Edition, p. 172.

9 Manresa, id., p. 426. 22 Now one-half, Articles 888 and 889, Civil Code.

10 Manresa, id., pp. 431-432. 23 Manresa, id., p. 430.

VI Sanchez Roman, Estudios de Derecho Civil, 2nd Edition, Volumen

11 24 Petitioner's brief, p. 13.
2.o, p. 1140.
25 Neri, et al. vs. Akutin, et al., 74 Phil. pp. 191-192.
VI Sanchez Roman, id., p. 1138. This is also cited in the Neri case,
12

74 Phil. 192-193. Arts. 817 and 851, Civil Code of Spain of 1889, referred to in
the opinion above, are now Arts. 907 and 918 of the present
Justice J.B.L. Reyes and Judge R.C. Puno, in their work Civil Code.
entitled "An Outline of Philippine Civil Law", 1956 ed., Vol. III,
p. 8; citing Gil vs. Murciano, L-3362, March 1, 1951, likewise
opined that "the right to make a will is statutory, not a natural
right, and must be subordinate to law and public policy".

13 Sanchez Roman, id., p. 1141.

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G.R. No. 72706 October 27, 1987
CONSTANTINO C. ACAIN, petitioner,
vs.
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:
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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 pre-deceased 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).
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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):
(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
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(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.
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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 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.
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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
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 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
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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.
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.
Teehankee, C.J., Yap, Fernan, Narvasa, Gutierrez, Jr., Cruz, Feliciano,
Gancayco, Padilla, Bidin, Sarmiento and Cortes, JJ., concur.
Separate Opinions
MELENCIO-HERRERA, J., concurring:
I concur in the result on the basic proposition that preterition in this case was
by mistake or inadvertence.
To my mind, an important distinction has to be made as to whether the
omission of a forced heir in the will of a testator is by mistake or inadvertence,
or voluntary or intentional. If by mistake or inadvertence, there is true
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preterirton and total intestacy results. The reason for this is the "inability to
determine how the testator would have distributed his estate if none of the
heirs had been omitted or forgotten (An Outline of Civil Law, J.B.L. Reyes and
R.C. Puno, Vol. III, p. 54).
The requisites of preterition are:
1. The heir omitted is a forced heir (in the direct line);
2. The ommission is by mistake or thru an oversight.
3. The omission is complete so that the forced heir received
nothing in the will. (111 Padilla, Civil Code Annotated, 1973
Edition, pp. 224-225) (Parenthetical addendum supplied).
On the other hand, if the omission is intentional, the effect would be a defective
disinheritance covered by Article 918 of the Civil Code in which case the
institution of heir is not wholly void but only insofar as it prejudices the legitime
of the person disinherited. Stated otherwise. the nullity is partial unlike in true
preterition where the nullity is total.
Pretention is presumed to be only an involuntary omission; that
is, that if the testator had known of the existence of the
compulsory heir at the time of the execution of the will, he
would have instituted such heir. On the other hand, if the
testator attempts to disinherit a compulsory heir, the
presumption of the law is that he wants such heir to receive as
little as possible from his estate. (III Tolentino, Civil Code, 1973
Edition, pp. 174-175).
In the case at bar, there seems to have been mistake or in advertence in the
omission of the adopted daughter, hence, my concurrence in the result that
total intestacy ensued.
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Separate Opinions
MELENCIO-HERRERA, J., concurring:
I concur in the result on the basic proposition that preterition in this case was
by mistake or inadvertence.
To my mind, an important distinction has to be made as to whether the
omission of a forced heir in the will of a testator is by mistake or inadvertence,
or voluntary or intentional. If by mistake or inadvertence, there is true
preterirton and total intestacy results. The reason for this is the "inability to
determine how the testator would have distributed his estate if none of the
heirs had been omitted or forgotten (An Outline of Civil Law, J.B.L. Reyes and
R.C. Puno, Vol. III, p. 54).
The requisites of preterition are:
1. The heir omitted is a forced heir (in the direct line);
2. The ommission is by mistake or thru an oversight.
3. The omission is complete so that the forced heir received
nothing in the will. (111 Padilla, Civil Code Annotated, 1973
Edition, pp. 224-225) (Parenthetical addendum supplied).
On the other hand, if the omission is intentional, the effect would be a defective
disinheritance covered by Article 918 of the Civil Code in which case the
institution of heir is not wholly void but only insofar as it prejudices the legitime
of the person disinherited. Stated otherwise. the nullity is partial unlike in true
preterition where the nullity is total.
Pretention is presumed to be only an involuntary omission; that
is, that if the testator had known of the existence of the
compulsory heir at the time of the execution of the will, he
would have instituted such heir. On the other hand, if the
testator attempts to disinherit a compulsory heir, the
presumption of the law is that he wants such heir to receive as
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 little as possible from his estate. (III Tolentino, Civil Code, 1973
Edition, pp. 174-175).

In the case at bar, there seems to have been mistake or in advertence in the
omission of the adopted daughter, hence, my concurrence in the result that
total intestacy ensued.

Footnotes

* Penned by Justice Jose A. R. Melo and concurred in by

Justices Milagros A. German and Nathanael P. De Pano, Jr.

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