Fernandez vs.

Dimagiba
G.R. No. L-23638 October 12, 1967

Facts:
Ismaela Dimagiba, filed a petition for probate of the will of Benedicta de los Reyes. Such
Petition was opposed by Dionisio Fernandez et al. on the ground .The court ruled in favour of
the probate. Fernandez et al. appealed but it was beyond the reglementary period. They argued
that they were entitled to await the other grounds for oppositions before appearing and the
will to probate should be considered interlocutory, because it fails to resolve the issues of
estoppel and revocation propounded in their opposition.

The CA later ruled that the case had become final and executor due to failure to appeal.

Issue:

Whether or not the probate of the will become final for lack of appeal.
Ruling:

Yes, The Supreme Court agrees with the Court of Appeals that the appellant's stand is
untenable. It is elementary that a probate decree finally and definitively settles all questions
concerning capacity of the testator and the proper execution and witnessing of his last will and
testament, irrespective of whether its provisions are valid and enforceable or otherwise. As
such, the probate order is final and appealable; and it is so recognized by express provisions of
Section 1 of Rule 109, that specifically prescribes that "any interested person may appeal in
special proceedings from an order or judgment where such order or judgment: (a) allows or
disallows a will."
 Gago vs. Mamuyac
G.R. No. L-26317 January 29, 1927
Johnson, J. (Ponente)

Facts:
This case stemmed when Francisco Gago filed a petition for the probate of a will of Miguel
Mamuyac executed on July 27, 1918. The oppositors alleged that the said will was already
annulled and revoked. It appeared that on April 16, 1919, the deceased executed another will.
The lower court denied the probate of the first will on the ground of the existence of the
second will.

Another petition was filed by Gago, this time for the probate of the second will, however it was
opposed again, this time the oppositor alleged that the second will presented was merely a
copy. According to the witnesses, the said will was allegedly revoked as per the testimony of
Jose Tenoy, one of the witnesses who typed the document. Another witness testified that on
December 1920 the original will was actually cancelled by the testator.

The lower court denied the probate and held that the same has been annulled and revoked.

Issue:
Whether or not there was a valid revocation of the will thus it cannot be probated.
RULING:
Yes. The will was already cancelled in 1920. This was inferred when after due search, the
original will cannot be found. When the will which cannot be found in shown to be in the
possession of the testator when last seen, the presumption is that in the absence of other
competent evidence, the same was deemed cancelled or destroyed. The same presumption
applies when it is shown that the testator has ready access to the will and it can no longer be
found after his death.