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CA be given to Francisca and Pablo naming Francisca as executor to

July 30, 1979 | GUERRERO, J. | Wills>Allowance and Disallowance>Probate serve without a bond.
 After all debts, funeral charges and other expenses of the estate of Doña Tinay
Francisca alsua-betts, joseph o. Betts, jose madareta, esteban p. Ramirez, had been paid, all her heirs including Don Jesus, submitted to the probate court
and the register of deeds for albay province for approval a deed of partition executed on December 19, 1959 and which
essentially confirmed the provisions of the partition of 1949, the holographic
Court of appeals, amparo alsua buenviaje, fernando buenviaje, will and codicil of Doña Tinay..
fernando alsua  May 6,1964-Don Jesus Alsua died
SUMMARY:  May 20, 1964- Francisca Alsua Betts (petitioner), as the executrix named in the
DOCTRINE: will of November 14, 1959, filed a petition for the probate of said new will of
Don Jesus Alsua.
FACTS:  Oppositions thereto were filed by Pablo, Amparo and Fernando, thru his judicial
 November 25, 1949-Don Jesus Alsua and his wife, Doña Florentina Rella, guardian Clotilde Samson, on the following grounds:
together with all their living children, Francisca Alsua-Betts, Pablo Alsua, o (a) that Don Jesus was not of sound and disposing mind at the time of
Fernando Alsua thru this judicial guardian Clotilde Samson, and Amparo the execution of the alleged will;
Alsua de Buenviaje, entered into a duly notarized agreement, Escritura de o (b) that the will was executed under duress or influence of fear or
Particion Extrajudicial (extra-judicial partition), over the then present and threats; or it was procured by undue and improper pressure and
existing properties of the spouses Don Jesus and Doña Florentina. influence on the part of the main beneficiaries and of person or persons
 Each of the four children was allotted with the properties considered as in collusion with them, or the signature of the testator was secured by
their share in the estate or as inheritance left by the deceased where they or thru fraud;
will be the absolute owner of the properties assigned in case of death of one o (c) that the will was not executed according to the formal requirements
of the spouses. of the law; and
 Don Jesus and Doña Florentina also separately executed holographic wills with o (d) that the alleged will subject of probate contravened the
exactly the same terms and conditions in conformity with the executed extra Extrajudicial Partition of 1949 agreed upon by him, his deceased
judicial partition naming each other as an executor without having to post any spouse, Doña Florentina, and all his children, Francisco, Pablo,
bond. That in case new properties be acquired same shall be partitioned one half Amparo and Fernando thru his judicial guardian Clotilde Samson,
to the surviving spouse and the other half to children of equal parts. and also contravened Don Jesus' own probated holographic will
 Don Jesus and Doña Florentina subsequently executed separately a codicil of and codicil of 1955 and 1956, respectively, essentially confirming
exactly the same terms and conditions, amending and supplementing their and implementing the said partition of 1949 which had already
holographic wills stating that they reserved for themselves the other half not been partially executed by all the signatories thereto in the
disposed of to their legitimate heirs under the agreement of partition and partition of the estate of Doña Florentina in December, 1959.
mutually and reciprocally bequeathed each other their participation as well all  The RTC allowed the probate of the will.
properties which might be acquired subsequently.  The CA reversed the RTC decision and denied the probate of the will.
 October 2, 1959- Doña Florentina died and Don Jesus was named executor
to serve without bond. ISSUE/S & RATIO:
 November, 1959- Don Jesus cancelled his holographic will in the presence 1. WON The Extrajudicial Partition is null and void.– YES
of his bookkeeper and secretary, Esteban P. Ramirez, and instructed
hislawyer to draft a new will. This was a notarial will and testament of 3 The Extrajudicial Partition of November 25, 1949 is null and void under Article
essential features as follows; 1056 in relation to Article 1271 of the old Civil Code.. These Articles provide
o 1. It expressly cancelled revoked and annulled all the provisions of as follows:
his holographic will and codicil.
o 2. It provided for the collation of all his properties donated to his a. Art. 1056. If the testator should make a partition of his property by an
four living children by virtue of the Escritura de Partition Extra act inter vivos, or by will, such partition shall stand in so far as it does
judicial”. not prejudice the legitime of the forced heirs. ...
o 3. It instituted his children as legatees / devisees of specific b. Art. 1271. All things, even future ones, which are not excluded from
properties, and as to the rest of the properties and whatever may the commerce of man, may be the subject-matter of contracts.
be subsequently acquired in the future, before his death, were to
Nevertheless, no contract may be entered into with respect to future
inheritances, except those the object of which is to make a division RULING: Decision of CA SET ASIDE.The probate of the will of Don Jesus is allowed.
inter vivos of an estate, in accordance with Article 1056.

All services not contrary to law or to good morals may also be the
subject- matter of contract.

Article 1056 specifically uses the word "testator" from which the clear
intent of the law may be deduced that the privilege of partitioning one's
estate by acts inter vivos is restricted only to one who has made a prior will
or testament

Both the Spanish Supreme Court and the learned and authoritative
commentator, Manresa, are of opinion that a testator may, by an act inter vivos,
partition his property, but he must first make a will with all the formalities
provided for by law. And it could not be otherwise, for without a will there can
be no testator; when the law, therefore, speaks of the partition inter vivos made
by a testator of his property, it necessarily refers to that property which he has
devised to his heirs. A person who disposes of his property gratis inter vivos is
not called a testator, but a donor. In employing the word "testator," the law
evidently desired to distinguish between one who freely donates his property in
life and one who disposes of it by will to take effect after his death.

There being no will prior to the extrajudicial partition, the extradjudicial is

not valid. Furthermore, the extrajudicial partition is not a valid or
enforceable contract because it involved future inheritance; it may only be
given effect as a donation inter vivos of specific properties to the heirs
made by the parents.

2. WON oppositors to the probate of the will, are in estoppel to question the
competence of testator Don Jesus Alsua. – NO
The principle of estoppel is not applicable in probate proceedings
because it involves public interest, and the application therein of the
rile of estoppel, when it win block the ascertainment of the truth as to
the circumstances surrounding the execution of a testament, would
seem inimical to public policy. Over and above the interest of private
parties is that of the state to see that testamentary dispositions be
carried out if, and only if, executed conformably to law.
3. WON Don Jesus can revoke his previous holographic will and codicil – YES

Don Jesus was not forever bound by his previous holographic will and
codicil as such, would remain revokable at his discretion. Art. 828 of the
new Civil Code is clear: "A will may be revoked by the testator at any time
before his death. Any waiver or restriction of this right is void." There can
be no restriction that may be made on his absolute freedom to revoke his
holographic will and codicil previously made.