Atty.
Luardo
CASES
RULE 75
1.
Anita Mang-oy, Leonora Miguel,
Helena Taynan and Jose Tumpao
v Bando as administrator
CA, Bando Tumpao, Lambia
Tumpao, Abito Tumpao
WON an unprobated will,
executed inter vivos, is valid.
(NO)
WON an agreement between all
the heirs to respect the partition
is valid and binding against them.
(YES)
SPECIAL PROCEEDING
FACTS
 Before Old Man Tumpao (OMT) died, he
executed a LWT inter vivos.
 He appointed his son private respondent
 Respondents are children of OMT with his
first wife.
 Petitioners are the children of the second
wife of OMT
 All the 5 children from both marriage
executed an agreement, agreeing to the
partition of the will.
 After 23 years, the respondents executed
an extrajudicial settlement between the 3
of them, to the exclusion of the other 2.
OMT’s title was cancelled and a TCT was
executed.
 Petitioner went to court asking for
reconveyance. RTC approved. CA reversed.
 CA decided that the will executed by the
OMT was null and void since it was not
probated.
o The agreement of partition was
considered null because it was
done inter vivos and not approved
by the Director of the Bureau of
Non-Christian Tribes.
o That the petitioners were liable for
rents because the property was
acquired during the first marriage.
RULING
Reversed, petition GRANTED.
It is well-settled that a will that is not probated is null and void. No will shall pass either real or personal
property unless it is proved or allowed in court.
However, the document may be sustained by Art 1056 NCC, which was in force the time the document
was executed.
"Art. 1056. If the testator should make a partition of his properties by an act in t e r viv o s, or by
will, such partition shall stand in so far as it does not prejudice the legitime of the forced heirs."
JBL Reyes has penned,
"None of these objections is valid in law. The appellants evidently fail to realize that Article 1056
of the Civil Code of 1889 authorizes a testator to partition inter vivos his property, and distribute
them among his heirs, and that this partition is not necessarily either a donation nor a testament,
but an instrument of a special character, sui generis, which is revocable at any time by the c a u s
a n t e during his lifetime, and does not operate as a conveyance of title until his death. It derives
its binding force on the heirs from the respect due to the will of the owner of the property,
limited only by his creditors and the intangibility of the legitime of the forced heirs.
"It was sufficient, therefore, that the partition, Exhibit A, should be in writing. It does not have to
be in a public document except to affect third persons (Art. 1280), being valid between the
parties who signed it in its present form.
While not valid as a partition in t e r viv o s under Articles 816 and 1271 of the old Civil Code, it was
nevertheless binding on the parties as proof of their conformity to the dispositions made by Old Man
Tumpao in his "last will and testament."
Trial Court would put it:
carminotes

2.
Nelson Nufable (son), Silmor
Nufable (wife) and Aquilina
Nufable(mother)
v 
Generosa Nufable, Vilfor
Nufable, Marcelo Nufable and
CA
SPECIAL PROCEEDING
 Esdras Nufable, who owned an untitled
parcel of land, died on August 9, 1965. He
was survived by his children Angel,
Generosa, Vilor and Marcelo.
In June 1996, the settlement of estate of
the late Esdras was approved and, as
therein stated, the heirs have agreed that
the untitled parcel of land remains
undivided for community ownership.
Atty. Luardo
"The will alone, 'Exh. B', would be inoperative for the simple reason that it was not probated.
However, when the persons who were named therein as heirs and beneficiaries voluntarily
agreed in writing to abide by its terms probably to save the expenses of probate, and
furthermore, carried out its terms after the death of the testator until now, then it must be held
to be binding between them.
"Said agreement was not a disposal of inheritance by a prospective heir before the death of the
testator, but an agreement to carry out the will. It was not contested by the defendants and
after the lapse of 25 years their right, if any, to assail it has prescribed under Art. 1144 of the Civil
Code. "Art. 1144 — The following actions must be brought ten years from the time the right of
action accrues: "1) Upon a written contract; "2) Upon an obligation created by law; "3) Upon a
judgment. "Any formal defect of the deed, 'Exh. 'C', was cured by the lapse of time.
We may add that the agreement entered into by the parties in implementation of Old Man Tumpao's
"will" did not have to be approved by the Director of the Bureau of Non-Christian Tribes because the
Administrative Code of Mindanao and Sulu was not extended to the Mountain Province. 11 11
Moreover, the document was not a conveyance of properties or property right. 12 12 It remains to state
that the property in dispute having been registered in 1917, the presumption is that it was acquired
during the second marriage and so cannot be claimed by the respondents as the conjugal property of
their mother and Old Man Tumpao. Hence, they are not entitled to retain the entire land as their
exclusive inheritance or to collect rentals for the lots occupied by the petitioners.
Affirms CA. Petition, DENIED.
As a general rule, courts in probate proceedings are limited only to passing upon the extrinsic validity of
the will sought to be probated, the due execution thereof, the testator's testamentary capacity and the
compliance with the requisites or solemnities prescribed by law. Said court at this stage of the
proceedings is not called upon to rule on the intrinsic validity or efficacy of the provision of the will. 6 6
The question of the intrinsic validity of a will normally comes only after the court has declared that the
will has been duly authenticated.
carminotes

WON probate court could rule on
Intrinsic Validity (NO)
WON heirs acquired by Partition
Agreement
WON Angel could dispose of the
property when there is no
partition yet
WON DBP is an indispensable
party
SPECIAL PROCEEDING
 However, two months earlier from said
approval, Angel and wife mortgaged the
entire parcel of land to DBP until it was
foreclosed in 1973.
 Later, in 1980, Nelson, the son of Angel,
purchased the same lot from DBP.
 Generosa, Vilflor and Marcelo then filed an
action to annul fraudulent transactions, to
quiet title and to recover damages.
 CA ruled that respondents are rightful co-
owners of the subject property and entitled
to possession of 3/4 southern portion
thereof and Nelson to 1/4 portion.
Atty. Luardo
In the Settlement of Esdras submitted to the court, the petitioners agreed to the shares indicated
therein. Verily, it was the heirs of the late Esdras Nufable who agreed among themselves on the
disposition of their shares. The probate court simply approved the agreement among the heirs which
approval was necessary for the validity of any disposition of the decedent's estate.
It should likewise be noted that the late Esdras Nufable died on August 9, 1965. When the entire
property located at Manjuyod was mortgaged on March 15, 1966 by his son Angel Custodio with DBP ,
the other heirs of Esdras — namely: Generosa, Vilfor and Marcelo — had already acquired successional
rights over the said property.
It was therefor the will of the decedent that the subject property should remain undivided, although the
restriction should not exceed twenty (20) years pursuant to Article 870 11 11 of the Civil Code. Cdtai
Thus, when Angel Nufable and his spouse mortgaged the subject property to DBP on March 15, 1966,
they had no right to mortgage the entire property. Angel's right over the subject property was limited
only to 1/4 p r o in d ivis o share. As co-owner of the subject property, Angel's right to sell, assign or
mortgage is limited to that portion that may be allotted to him upon termination of the co-ownership.
Well-entrenched is the rule that a coowner can only alienate his p r o in d ivis o share in the co-owned
property.
Moreover, respondents stipulated that they were not aware of the mortgage by petitioners of the
subject property. This being the case, a co-owner does not lose his part ownership of a co-owned
property when his share is mortgaged by another co-owner without the former's knowledge and
consent, as in the case at bar. It has likewise been ruled that the mortgage of the inherited property is
not binding against co-heirs who never benefited.
As adverted to above, when the subject property was mortgaged by Angel Custodio, he had no right to
mortgage the entire property but only with respect to his 1/4 p r o in d ivis o share as the property was
subject to the successional rights of the other heirs of the late Esdras. Moreover, in case of foreclosure, a
sale would result in the transmission of title to the buyer which is feasible only if the seller can be in a
position to convey ownership of the things sold. 19 19 And in one case, 20 20 it was held that a
foreclosure would be ineffective unless the mortgagor has title to the property to be foreclosed.
carminotes
 Atty. Luardo
SPECIAL PROCEEDING

Therefore, as regards the remaining 3/4 p r o in d ivis o share, the same was held in trust for the party
rightfully entitled thereto, who are the private respondents herein.

Neither does the fact that DBP succeeded in consolidating ownership over the subject property in its
name terminate the existing co-ownership. Registration of property is not a means of acquiring
ownership. When the subject property was sold to and consolidated in the name of DBP , it being the
winning bidder in the public auction, DBP merely held the 3/4 portion in trust for the private
respondents. When petitioner Nelson purchased the said property, he merely stepped into the shoes of
DBP and acquired whatever rights and obligations appertain thereto.

Nonetheless, the rule is that indispensable parties, i.e., parties in interest without whom no nal
determination can be had of an action, shall be joined either as plaintiffs or defendants; the inclusion as
a party being compulsory. 24 24 On the other hand, in case of proper or necessary parties, i.e., persons
who are not indispensable but ought to be parties if complete relief is to be accorded as between those
already parties, the court may, in its discretion, proceed in the action without making such persons
parties, and the judgment rendered therein shall be without prejudice to the rights of such persons. 25
25 Proper parties, therefore, have been described as parties whose presence is necessary in order to
adjudicate the whole controversy, but whose interests are so far separable that a final decree can be
made in their absence without affecting them. 26 26 Any claim against a party may be severed and
proceeded with separately

Petitioners' interest in the controversy is distinct and separable from the interest of DBP and a nal
determination can be had of the action despite the non-inclusion of DBP as party-defendant. Hence,
DBP, not being an indispensable party, did not have to be impleaded in this case.

3.  Rosario Nuguid, a resident of Quezon City Affirmed, petition DENIED.

Remedios Nuguid v Felix Nuguid died, single without descendants,
and Paz Salonga Nuguid legitimate or illegitimate. Right at the outset, a procedural aspect has engaged our attention. The case is for the probate of a will.
 Surviving her were her legitimate parents, The court's area of inquiry is limited — to an examination of, and resolution on, the extrinsic validity of
Felix Nuguid and Paz Salonga Nuguid, and 6 the will. The due execution thereof, the testatrix's testamentary capacity, and the compliance with the

carminotes

SPECIAL PROCEEDING
brothers and sisters namely: Alfredo,
Federico, Remedios, Conrado, Lourdes and
Alberto,
 Remedios Nuguid filed in CFI Rizal a
holographic will, allegedly executed some
11 yrs before Rosarios’ demise.
 Petitioner Remedios prayed to admit it for
Probate and letters of administration be
issued to her.
 Felix Nuguid and Paz Salonga Nuguid,
concededly the legitimate father and
mother, entered their opposition to the
probate of her will. Claiming that the
institution of the petitioner Remedios as
Universal heir is invalid because the
opositors who are compulsory heirs of the
deceased in the direct ascending line were
illegally preterited, thus the consequence
of the preterition is voiding the institution.
 Respondents moved to dismiss.
 Petitioner field opposition
 Court dismissed the probation
Atty. Luardo
requisites or solemnities by law prescribed, are the questions solely to be represented, 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.
A peculiar situation is here thrust upon us. The meat of the case is the intrinsic validity of the will.
Normally, this comes only after the court has declared that the will been duly authenticated.
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 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 nullity of the provisions of the will in question. After all, there exists a
justiciable controversy crying for solution.
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 parents: 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.
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.
We should not be led astray by the statement in Article 854 that, annulment notwithstanding, "the
devises and legacies shall be valid insofar as they are not inoficious." Legacies and devises merit
consideration only when they are so expressly given as such in a will. 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.
carminotes

4.
In Matter of Probate of the Last
Will of Brigido Alvarado.
Ceasar Alvarado v Hon Ramon
Gaviola, Jr. Hon. Luciano, and
Bayani Ma. Rino
SPECIAL PROCEEDING
 Brigido Alvarado made a last will and
testament disinheriting an illegitimate son
(petitioner) and expressly revoked a
previously executed holographic will at that
time awaiting probate.
 As testied to by the three instrumental
witnesses, the notary public and by private
respondent who were present at the
execution, the testator did not read the nal
draft of the will himself. Instead, private
respondent, as the lawyer who drafted the
eight-paged document, read the same
aloud in the presence of the testator, the
Atty. Luardo
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."
Disinheritance, in turn, "is a testamentary disposition depriving any compulsory heir of his share in the
legitime for a cause authorized by law."
On top of this the fact that the effects owing 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," but only "insofar as it may prejudice the person disinherited," which last phrase w a
s o mit t e d in the case of preterition. Better stated yet, in disinheritance the nullity is limited to that
portion of the estate of which the disinherited heirs have been illegally deprived.
Affirmed, DENIED.
pronouncement in G a r cia v s . V a s q u e z provides an insight into the scope of the term "blindness" as
used in Art. 808, to wit: "The rationale behind the requirement of reading the will to the testator if he is
blin d o r in c a p a ble o f r e a din g t h e will him s elf ( a s w h e n h e is illit e r a t e ), is to make the
provisions thereof known to him, so that he may be able to object if they are not in accordance with his
wishes . . ."
However,
This Court has held in a number of occasions that substantial compliance is acceptable where the
purpose of the law has been satised, the reason being that the solemnities surrounding the execution of
wills are intended to protect the testator from all kinds of fraud and trickery but are never intended to
be so rigid and inexible as to destroy the testamentary privilege.
carminotes

5.
Sps. Alvaro Pastor, Jr. and Ma.
Elena Pastor, v CA, Juan Reyes,
Lewellyn Barlito Quemada
Atty. Luardo
SPECIAL PROCEEDING
three instrumental witnesses and the
notary public. The spirit behind the law was served though the letter was not. Although there should be strict
 While the holographic will was probated, a compliance with the substantial requirements of the law in order to insure the authenticity of the will,
Codicil was executed changing some the formal imperfections should be brushed aside when they do not affect its purpose and which, when
dispositions in the notarial will to generate taken into account, may only defeat the testator's will.
case for the testator’s eye operation.
 But the disinheritance and the revocatory A b a n g a n v. A b a n g a n, to wit: "The object of the solemnities surrounding the execution of wills is to
clauses were unchanged. close the door against bad faith and fraud, to avoid the substitution of wills and testaments and to
 The Codicil was not personally read by the guaranty their truth and authenticity. Therefore the laws on the subject should be interpreted in such a
testator, instead the private respondent way as to attain these primordial ends. But, on the other hand, also one must not lose sight of the fact
read it aloud to him and the witnesses and that it is n o t t h e o bje c t o f t h e la w t o r e s tr ain a n d c u rt ail t h e e x e r cis e o f t h e rig h t t o m
the notary public. a k e a will. S o w h e n a n in t e r p r e t a tio n alr e a d y giv e n a s s u r e s s u c h e n d s, a n y o t h e r
 A petition for probate of notarial and in t e r p r e t a tio n w h a t s o e v e r, t h a t a d d s n o t hin g b u t d e m a n d s m o r e r e q uisit e s e n
codicil was filed upon the death of the tir ely u n n e c e s s a r y, u s ele s s a n d f r u s tr a tiv e o f t h e t e s t a t o r's will, m u s t b e dis r e g a r
testator with private respondent as the ded"
executor.
 Petitioner filed an opposition on the
ground that the will was not executed and
attested as required by law; that the
testator was insane or otherwise mentally
incapacitated, executed under duress, etc
 Upon failure to substantiate, the opposition
was dismissed, and subsequently appealed
to.
 The appeal was on the ground of the
testator’s blindness.
 Appellate Court said altho Art 808 was not
followed, there was substantial compliance.
 Hence, this petition.
 Petitioner Alvaro (SPANISH) is the Reversed, case is REMANDED, subject to appropriate proceeding.
legitimate child of Pastor Sr.
 Respondent Lewellyn Quemada (FILIPINO) 1. I s s u e o f O w n e r s hip —
is the Illegitimate child of PASTOR SR
carminotes
 Atty. Luardo
SPECIAL PROCEEDING

 QUEMADA filed a petition for the probate (a)In a special proceeding for the probate of a will, the issue by and large is restricted to the e x t rin sic v
and allowance of an alleged holographic alid it y of the will, i.e., whether the testator, being of sound mind, freely executed the will in accordance
will of PASTOR SR. with the formalities prescribed by law. (Rules of Court, Rule 75, Section 1; Rule 76, Section 9.) As a rule,
 The will contained only one testamentary the question of ownership is an extraneous matter which the Probate Court cannot resolve with finality.
disposition: a legacy in favor of QUEMADA Thus, for the purpose of determining whether a certain property should or should not be included in the
consisting of 30% of PASTOR, SR.'s 42% inventory of estate properties, the Probate Court may pass upon the title thereto, but such
share in the operation by Atlas determination is provisional, not conclusive, and is subject to the final decision in a separate action to
Consolidated Mining and Development resolve title.
Corporation (ATLAS) of some mining claims
in Piña-Barot, Cebu.
 Upon Motion of Quemada and after an ex
parte hearing, appointed him the special
administrator
 He assumed office as such on December 4,
1970 after filing a bond of P5,000.00.
 Quemada instituted against PASTOR JR. and
his wife an action for reconveyance of
alleged properties of the estate, which
included the properties subject of the
legacy and which were under the names of
the spouses.
 PASTOR JR and his sister field their
opposition to the petition for probate.
 Probate Court issued an order allowing
probate
 CA, affirmed.
 SC, remanded
 After 2 yrs, QUEMADA filed a pleading
asking for the payment of his legacy and
seizure of the properties subject of said
legacy.

carminotes
 Atty. Luardo
SPECIAL PROCEEDING

 PASTOR JR and sister opposed the

pleadings on the gound of pendency of the
reconveyance suit
 PROBATE cOURT set the hearing on the
intrinsic validity of the will. Because of
theopposition of siblings, there was no
hearing. Instead the court asked the
partiesd to subm,it their position paper on
how much QUEMADA should be entitled
to.
 while the reconveyance suit was still being
litigated in Branch IX of the Court of First
Instance of Cebu, the PROBATE COURT
issued the now assailed Order of Execution
and Garnishment, resolving the question of
ownership of the royalties payable by
ATLAS and ruling in effect that the legacy to
QUEMADA was not inofficious. [There was
absolutely no statement or claim in the
Order that the Probate Order of December
5, 1972 had previously resolved the issue of
ownership of the mining rights of royalties
thereon, nor the intrinsic validity of the
holographic will.]
 The order being "immediately executory",
QUEMADA succeeded in obtaining a Writ of
Execution and Garnishment on September
4, 1980, and in serving the same on ATLAS
on the same day.
 PASTOR, JR., this time joined by his wife
Ma. ELENA ACHAVAL DE PASTOR, filed with
the Court of Appeals a Petition for

carminotes
 Atty. Luardo
SPECIAL PROCEEDING

Certiorari and Prohibition with a prayer for

writ of preliminary injunction


carminotes