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, 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 in 1920 before his death; that the said will was a mere carbon copy and that the oppositors were not estopped from alleging that fact. With reference to the said cancellation, it may be stated that there is positive 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 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 such cancellation or revocation has taken place must either remain unproved of be inferred from evidence showing that after due search the original will 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 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 cancellation or revocation by the testator, while varying greatly, being weak or strong according to the circumstances, is never conclusive, but may be overcome by proof that the will was not destroyed by the testator with intent to revoke it. 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 had been cancelled, we are forced to the conclusion that the conclusions of the lower Page 2 of 34
court are in accordance with the weight of the evidence. In a proceeding to probate a will the burden of proofs is upon the proponent clearly to establish not only its execution but its existence. Having proved its 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 for the purpose of revoking them there is no witness to the act of cancellation or destruction and all evidence of its cancellation perishes with the testator. Copies of wills should be admitted by the courts with great caution. When it is proven, however, by proper testimony that a will was executed in duplicate and each copy was executed with all the formalities and requirements of the law, then the duplicate may be admitted in evidence when it is made to appear that the original has been lost and was not cancelled or destroyed by the testator. (Borromeo vs. Casquijo, G.R. No. L-26063.)1 After a careful examination of the entire record, we are fully persuaded that the will presented for probate had been cancelled by the testator in 1920. Therefore the judgment appealed from is hereby affirmed. And without any finding as to costs, it is so ordered. G.R. No. 76464 February 29, 1988 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, 1 which 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 Instance of Iloilo and was docketed as Special Proceeding No. 1736. However, 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 Page 3 of 34
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 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 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 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') Page 4 of 34
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. For one, there is yet, strictly speaking, no final judgment rendered insofar as 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 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 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 probate of the contested will . 6 After all, an action for probate, as it implies, is 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 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 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- 30479 that the petitioners instituted this separate action for the probate of the late Adriana Maloto's will. Hence, on these grounds alone, the position of the private respondents on this score can not be sustained. One last note. The private respondents point out that revocation could be inferred from the fact that "(a) major and substantial bulk of the properties mentioned in the will had been disposed of: while an insignificant portion of the properties remained at the time of death (of the testatrix); and, furthermore, 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. G.R. No. L-2538 September 21, 1951 Testate Estate of the Deceased MARIANO MOLO Y LEGASPI. JUANA JUAN VDA. DE MOLO, petitioner-appellee, vs. LUZ, GLICERIA and CORNELIO MOLO, oppositors-appellants. Claro M. Recto and Serafin C. Dizon for appellants. Delgado & Flores for appellee. BAUTISTA ANGELO, J .: This is an appeal from an order of the Court of First Instance of Rizal admitting to probate the last will and testament of the deceased Mariano Molo y Legaspi executed on August 17, 1918. The oppositors-appellants brought the case on appeal to this Court for the reason that the value of the properties involved exceeds P50,000. Mariano Molo y Legaspi died on January 24, 1941, in the municipality of Pasay, province of Rizal, without leaving any forced heir either in the descending or ascending line. He was survived, however, by his wife, the herein petitioner Juana Juan Vda. de Molo, and by his nieces and nephew, the oppositors-appellants, Luz Gliceria and Cornelio, all surnamed Molo, who were the legitimate children of Candido Molo y Legaspi, deceased brother of the testator. Mariano Molo y Legaspi left two wills, one executed on August 17, 1918, (Exhibit A) and another executed on June 20, 1939. (Exhibit I). The later will executed in 1918. On February 7, 1941, Juana Juan Vda. de Molo, filed in the Court of First Instance of Rizal a petition, which was docketed as special proceeding No. 8022 seeking the probate of the will executed by the deceased on June 20, 1939. There being no opposition, the will was probated. However, upon petition filed by the herein oppositors, the order of the court admitting the will to probate was set aside and the case was reopened. After hearing, at which both parties presented their evidence, the court rendered decision denying the probate of said will on the ground that the petitioner failed to prove that the same was executed in accordance with law. In view of the disallowance of the will executed on June 20, 1939, the widow on February 24, 1944, filed another petition for the probate of the will executed by the deceased on August 17, 1918, which was docketed as special proceeding No. 56, in Page 5 of 34
the same court. Again, the same oppositors filed an opposition to the petition based on three grounds: (1) that petitioner is now estopped from seeking the probate of the will of 1918; (2) that said will has not been executed in the manner required by law and (3) that the will has been subsequently revoked. But before the second petition could be heard, the battle for liberation came and the records of the case were destroyed. Consequently, a petition for reconstitution was filed, but the same was found to be impossible because neither petitioner nor oppositors could produce the copies required for its reconstitution. As a result, petitioner filed a new petition on September 14, 1946, similar to the one destroyed, to which the oppositors filed an opposition based on the same grounds as those contained in their former opposition. Then, the case was set for trial, and on May 28, 1948, the court issued an order admitting the will to probate already stated in the early part of this decision. From this order the oppositors appealed assigning six errors, to wit. I. The probate court erred in not holding that the present petitioner voluntarily and deliberately frustrated the probate of the will dated June 20, 1939, in special proceeding No. 8022, in order to enable her to obtain the probate of another alleged will of Molo dated 191. II. The court a quo erred in not holding that the petitioner is now estopped from seeking the probate of Molo's alleged will of 1918. III. The lower court erred in not holding that petitioner herein has come to court with "unclean hands" and as such is not entitled to relief. IV. The probate court erred in not holding that Molo's alleged will of August 17, 1918 was not executed in the manner required by law. V. The probate court erred in not holding that the alleged will of 1918 was deliberately revoked by Molo himself. VI. The lower court erred in not holding that Molo's will of 1918 was subsequently revoked by the decedent's will of 1939. In their first assignment of error, counsel for oppositors contend that the probate court erred in not holding that the petitioner voluntarily and deliberately frustrated the probate of the will dated June 20, 1939, in order to enable her to obtain the probate of the will executed by the deceased on August 17, 1918, pointing out certain facts and circumstances with their opinion indicate that petitioner connived with the witness Canuto Perez in an effort to defeat and frustrate the probate of the 1939 will because of her knowledge that said will intrinsically defective in that "the one and only testamentory disposition thereof was a "disposicion captatoria". These circumstances, counsel for the appellants contend, constitute a series of steps deliberately taken by petitioner with a view to insuring the realization of her plan of securing the probate of the 1918 will which she believed would better safeguard her right to inherit from the decease. These imputations of fraud and bad faith allegedly committed in connection with special proceedings No. 8022, now closed and terminated, are vigorously met by counsel for petitioner who contends that to raise them in these proceedings which are entirely new and distinct and completely independent from the other is improper and unfair as they find no support whatsoever in any evidence submitted by the parties in this case. They are merely based on the presumptions and conjectures not supported by any proof. For this reason, counsel, contends, the lower court was justified in disregarding them and in passing them sub silentio in its decision. A careful examination of the evidence available in this case seems to justify this contention. There is indeed no evidence which may justify the insinuation that petitioner had deliberately intended to frustrate the probate of the 1939 will of the deceased to enable her to seek the probate of another will other than a mere conjecture drawn from the apparently unexpected testimony of Canuto Perez that he went out of the room to answer an urgent call of nature when Artemio Reyes was signing the will and the failure of petitioner later to impeach the character of said witness in spite of the opportunity given her by the court to do so. Apart from this insufficiency of evidence, the record discloses that this failure has been explained by petitioner when she informed the court that she was unable to impeach the character of her witness Canuto Perez because of her inability to find witnesses who may impeach him, and this explanation stands uncontradicted. Whether this explanation is satisfactory or not, it is not now, for us to determine. It is an incident that comes within the province of the former case. The failure of petitioner to present the testimony of Artemio Reyes at the hearing has also been explained, and it appears that petitioner has filed because his whereabouts could not be found. Whether this is true or not is also for this Court to determine. It is likewise within the province and function of the court in the former case. And the unfairness of this imputation becomes more glaring when we stock of the developments that had taken place in these proceedings which show in bold relief the true nature of the conduct, behavior and character of the petitioner so bitterly assailed and held in disrepute by the oppositors. It should be recalled that the first petition for the probate of the will executed on June 20, 1939, was filed on February 7, 1941, by the petitioner. There being no opposition, the will was probated. Subsequently, however, upon petition of the herein oppositors, the order of the court admitting said will to probate was set aside, over the vigorous opposition of the herein petitioner, and the case was reopened. The reopening was ordered because of the strong opposition of the oppositors who contended that he will had not been executed as required by law. After the evidence Page 6 of 34
of both parties had been presented, the oppositors filed an extensive memorandum wherein they reiterated their view that the will should be denied probate. And on the strenght of this opposition, the court disallowed the will. If petitioner then knew that the 1939 will was inherently defective and would make the testamentary disposition in her favor invalid and ineffective, because it is a "disposicion captatoria", which knowledge she may easily acquire through consultation with a lawyer, there was no need her to go through the order of filing the petition for the probate of the will. She could accomplish her desire by merely suppressing the will or tearing or destroying it, and then take steps leading to the probate of the will executed in 1918. But for her conscience was clear and bade her to take the only proper step possible under the circumstances, which is to institute the necessary proceedings for the probate of the 1939 will. This she did and the will was admitted to probate. But then the unexpected happened. Over her vigorous opposition, the herein appellants filed a petition for reopening, and over her vigorous objection, the same was granted and the case was reopened. Her motion for reconsideration was denied. Is it her fault that the case was reopened? Is it her fault that the order admitting the will to probate was set aside? That was a contingency which petitioner never expected. Had appellants not filed their opposition to the probate of the will and had they limited their objection to the intrinsic validity of said will, their plan to defeat the will and secure the intestacy of the deceased would have perhaps been accomplished. But they failed in their strategy. If said will was denied probate it is due to their own effort. It is now unfair to impute bad faith petitioner simply because she exerted every effort to protect her own interest and prevent the intestacy of the deceased to happen. Having reached the foregoing conclusions, it is obvious that the court did not commit the second and third errors imputed to it by the counsel for appellants. Indeed, petitioner cannot be considered guilty or estoppel which would prevent her from seeking the probate of the 1918 will simply because of her effort to obtain the allowance of the 1939 will has failed considering that in both the 1918 and 1939 wills she was in by her husband as his universal heir. Nor can she be charged with bad faith far having done so because of her desire to prevent the intestacy of her husband. She cannot be blamed being zealous in protecting her interest. The next contention of appellants refers to the revocatory clause contained in 1939 will of the deceased which was denied probate. They contend that, notwithstanding the disallowance of said will, the revocatory clause is valid and still has the effect of nullifying the prior of 1918. Counsel for petitioner meets this argument by invoking the doctrine laid down in the case of Samson vs. Naval, (41 Phil., 838). He contends that the facts involved in that case are on all fours with the facts of this case. Hence, the doctrine is that case is here controlling. There is merit in this contention. We have carefully read the facts involved in the Samson case we are indeed impressed by their striking similarity with the facts of this case. We do not need to recite here what those facts are; it is enough to point out that they contain many points and circumstances in common. No reason, therefore, is seen by the doctrine laid down in that case (which we quote hereunder) should not apply and control the present case. A subsequent will, containing a clause revoking a previous will, having been disallowed, for the reason that it was not executed in conformity with the provisions of section 618 of the Code of Civil Procedure as to the making of wills, cannot produce the effect of annulling the previous will, inasmuch as said revocatory clause is void. (41 Phil., 838.) Apropos of this question, counsel for oppositors make the remark that, while they do not disagree with the soundness of the ruling laid down in the Samson case, there is reason to abandon said ruling because it is archaic or antiquated and runs counter to the modern trend prevailing in American jurisprudence. They maintain that said ruling is no longer controlling but merely represents the point of view of the minority and should, therefore, be abandoned, more so if we consider the fact that section 623 of our Code of Civil Procedure, which governs the revocation of wills, is of American origin and as such should follow the prevailing trend of the majority view in the United States. A long line of authorities is cited in support of this contention. And these authorities hold the view, that "an express revocation is immediately effective upon the execution of the subsequent will, and does not require that it first undergo the formality of a probate proceeding". (p. 63, appellants' brief . While they are many cases which uphold the view entertained by counsel for oppositors, and that view appears to be in controlling the states where the decisions had been promulgated, however, we are reluctant to fall in line with the assertion that is now the prevailing view in the United States. In the search we have made of American authorities on the subject, we found ourselves in a pool of conflicting opinions perhaps because of the peculiar provisions contained in the statutes adopted by each State in the subject of revocation of wills. But the impression we gathered from a review and the study of the pertinent authorities is that the doctrine laid down in the Samson case is still a good law. On page 328 of the American Jurisprudence Vol. 57, which is a revision Published in 1948, we found the following passages which in our opinion truly reflect the present trend of American jurisprudence on this matter affecting the revocation of wills: Page 7 of 34
SEC. 471. Observance of Formalities in Execution of Instrument. Ordinarily, statutes which permit the revocation of a will by another writing provide that to be effective as a revocation, the writing must be executed with the same formalities which are required to be observed in the execution of a will. Accordingly, where, under the statutes, attestation is necessary to the making of a valid will, an unattested non testamentary writing is not effective to revoke a prior will. It has been held that a writing fails as a revoking instrument where it is not executed with the formalities requisite for the execution of a will, even though it is inscribed on the will itself, although it may effect a revocation by cancellation or obliteration of the words of the will. A testator cannot reserve to himself the power to modify a will by a written instrument subsequently prepared but not executed in the manner required for a will. SEC, 472. Subsequent Unexecuted, Invalid, or Ineffective Will or Codicil. A will which is invalid because of the incapacity of the testator, or of undue influence can have no effect whatever as a revoking will. Moreover, a will is not revoked by the unexecuted draft of a later one. Nor is a will revoked by a defectively executed will or codicil, even though the latter contains a clause expressly revoking the former will, in a jurisdiction where it is provided by a controlling statute that no writing other than a testamentary instrument is sufficient to revoke a will, for the simple reason that there is no revoking will. Similarly where the statute provides that a will may be revoked by a subsequent will or other writing executed with the same formalities as are required in the execution of wills, a defectively executed will does not revoke a prior will, since it cannot be said that there is a writing which complies with the statute. Moreover, a will or codicil which, on account of the manner in which it is executed, is sufficient to pass only personally does not affect dispositions of real estate made by a former will, even though it may expressly purport to do so. The intent of the testator to revoke is immaterial, if he has not complied with the statute. (57 Am. Jur., 328, 329.) We find the same opinion in the American Law Reports, Annotated, edited in 1939. On page 1400, Volume 123, there appear many authorities on the "application of rules where second will is invalid", among which a typical one is the following: It is universally agreed that where the second will is invalid on account of not being executed in accordance with the provisions of the statute, or where the testator who has not sufficient mental capacity to make a will or the will is procured through undue influence, or the such, in other words, where the second will is really no will, it does not revoke the first will or affect it in any manner. Mort vs. Baker University (193-5) 229 Mo. App., 632, 78 S.W. (2d), 498. These treaties cannot be mistaken. They uphold the view on which the ruling in the Samson case is predicated. They reflect the opinion that this ruling is sound and good and for this reason, we see no justification for abondoning it as now suggested by counsel for the oppositors. It is true that our law on the matter (sec. 623, Code Civil Procedure) provides that a will may be some will, codicil, or other writing executed as proved in case of wills" but it cannot be said that the 1939 will should be regarded, not as a will within the meaning of said word, but as "other writing executed as provided in the case of wills", simply because it was denied probate. And even if it be regarded as any other writing within the meaning of said clause, there is authority for holding that unless said writing is admitted to probate, it cannot have the effect of revocation. (See 57 Am. Jur. pp. 329-330). But counsel for oppositors contemned that, regardless of said revocatory clause, said will of 1918 cannot still be given effect because of the presumption that it was deliberately revoked by the testator himself. The oppositors contend that the testator, after executing the 1939 will, and with full knowledge of the recovatory clause contained said will, himself deliberately destroyed the original of the 1918 will, and for that reason the will submitted by petitioner for probate in these proceedings is only a duplicate of said original. There is no evidence which may directly indicate that the testator deliberately destroyed the original of the 1918 will because of his knowledge of the revocatory clause contained in the will he executed in 1939. The only evidence we have is that when the first will was executed in 1918, Juan Salcedo, who prepared it, gave the original and copies to the testator himself and apparently they remained in his possession until he executed his second will in 1939. And when the 1939 will was denied probate on November 29, 1943, and petitioner was asked by her attorney to look for another will, she found the duplicate copy (Exhibit A) among the papers or files of the testator. She did not find the original. If it can be inferred that the testator deliberately destroyed the 1918 will because of his knowledge of the revocatory clause of the 1939 will, and it is true that he gave a duplicate copy thereof to his wife, the herein petitioner, the most logical step for the testator to take is to recall said duplicate copy in order that it may likewise be destroyed. But this was not done as shown by the fact that said duplicate copy remained in the possession of petitioner. It is possible that because of the long lapse of twenty-one (21) years since the first will was executed, the original of the will had been misplaced or lost, and forgetting that there was a copy, the testator deemed it Page 8 of 34
wise to execute another will containing exactly the same testamentary dispositions. Whatever may be the conclusion we may draw from this chain of circumstances, the stubborn fact is that there is no direct evidence of voluntary or deliberate destruction of the first will by the testator. This matter cannot be inference or conjectur. Granting for the sake of argument that the earlier will was voluntarily destroyed by the testator after the execution of the second will, which revoked the first, could there be any doubt, under this theory, that said earlier will was destroyed by the testator in the honest belief that it was no longer necessary because he had expressly revoked it in his will of 1939? In other words, can we not say that the destruction of the earlier will was but the necessary consequence of the testator's belief that the revocatory clause contained in the subsequent will was valid and the latter would be given effect? If such is the case, then it is our opinion that the earlier will can still be admitted to probate under the principle of "dependent relative revocation". This doctrine is known as that of dependent relative revocation, and is usually applied where the testator cancels or destroys a will or executes an instrument intended to revoke a will with a present intention to make a new testamentary disposition as a substitute for the old, and the new disposition is not made or, if made, fails of effect for same reason. The doctrine is n limited to the existence of some other document, however, and has been applied where a will was destroyed as a consequence of a mistake of law. . . . (68 C.J.P. 799). The rule is established that where the act of destruction is connected with the making of another will so as fairly to raise the inference that the testator meant the revocation of the old to depend upon the efficacy of a new disposition intended to be substituted, the revocation will be conditional and dependent upon the efficacy of the new disposition; and if, for any reason, the new will intended to be made as a substitute is inoperative, the revocation fails and the original will remains in full force. (Gardner, pp. 232, 233.) This is the doctrine of dependent relative revocation. The failure of a new testamentary disposition upon whose validity the revocation depends, is equivalent to the non-fulfillment of a suspensive conditions, and hence prevents the revocation of the original will. But a mere intent to make at some time a will in the place of that destroyed will not render the destruction conditional. It must appear that the revocation is dependent upon the valid execution of a new will. (1 Alexander, p. 751; Gardner, p. 253.) We hold therefore, that even in the supposition that the destruction of the original will by the testator could be presumed from the failure of the petitioner to produce it in court, such destruction cannot have the effect of defeating the prior will of 1918 because of the fact that it is founded on the mistaken belief that the will of 1939 has been validly executed and would be given due effect. The theory on which this principle is predicated is that the testator did not intend to die intestate. And this intention is clearly manifest when he executed two wills on two different occasion and instituted his wife as his universal heir. There can therefore be no mistake as to his intention of dying testate. The remaining question to be determined refers to the sufficiency of the evidence to prove the due execution of the will.The will in question was attested, as required by law, by three witnesses, Lorenzo Morales, Rufino Enriquez, and Angel Cuenca. The first two witnesses died before the commencement of the present proceedings. So the only instrumental witness available was Angel Cuenca and under our law and precedents, his testimony is sufficient to prove the due execution of the will. However, petitioner presented not only the testimony of Cuenca but placed on the witness stand Juan Salcedo, the notary public who prepared and notarized the will upon the express desire and instruction of the testator, The testimony of these witnesses shows that the will had been executed in the manner required by law. We have read their testimony and we were impressed by their readiness and sincerity. We are convinced that they told the truth.Wherefore, the order appealed from is hereby affirmed, with costs against the appellants.1wphl. G.R. No. 17714, In re Estate of De Leon. Diaz v. De Leon, 43 Phil. 413 The only question raised in this case is whether or to the will executed by Jesus de Leon, now, was revoked by him. The petitioner denies such revocation, while the contestant affirms the same by alleging that the testator revoked his will by destroying it, and by executing another will expressly revoking the former. We find that the second will Exhibit 1 executed by the deceased is not cloth with all the necessary requisites to constitute a sufficient revocation. Page 9 of 34
But according to the statute governing the subject in this jurisdiction, the destruction of a will animo revocandi constitutes, in itself, a sufficient revocation. (Sec. 623, Code of Civil Procedure.) From the evidence submitted in this case, it appears that the testator, shortly after the execution of the first will in question, asked that the same be returned to him. The instrument was returned to the testator who ordered his servant to tear the document. This was done in his presence and before a nurse who testified to this effect. After some time, the testator, being asked by Dr. Cornelio Mapa about the will, said that it had been destroyed. The intention of revoking the will is manifest from the established fact that the testator was anxious to withdraw or change the provisions he had made in his first will. This fact is disclosed by the testator's own statements to the witnesses Canto and the Mother Superior of the Hospital where he was confined. The original will herein presented for probate having been destroyed with animo revocandi, cannot now be probated as the will and last testament of Jesus de Leon. Judgement is affirmed with costs against the petitioner. So ordered. Araullo, C.J., Malcolm, Avancea, Ostrand and Johns, JJ., concur. Villamor, J., took no part. G.R. No. 38050, Manahan v. Manahan, 58 Phil. 448 J. Fernando Rodrigo for appellant. Heraclio H. del Pilar for appellee. IMPERIAL, J .: This is an appeal taken by the appellant herein, Engracia Manahan, from the order of the Court of the First Instance of Bulacan dated July 1, 1932, in the matter of the will of the deceased Donata Manahan, special proceedings No. 4162, denying her motion for reconsideration and new trial filed on May 11, 1932. The fact in the case are as follows: On August 29, 1930, Tiburcia Manahan instituted special proceedings No. 4162, for the probate of the will of the deceased Donata Manahan, who died in Bulacan, Province of Bulacan, on August 3, 1930. The petitioner herein, niece of the testatrix, was named the executrix in said will. The court set the date for the hearing and the necessary notice required by law was accordingly published. On the day of the hearing of the petition, no opposition thereto was filed and, after the evidence was presented, the court entered the decree admitting the will to probate as prayed for. The will was probated on September 22, 1930. The trial court appointed the herein petitioner executrix with a bond of P1,000, and likewise appointed the committed on claims and appraisal, whereupon the testamentary proceedings followed the usual course. One year and seven months later, that is, on My 11, 1932, to be exact, the appellant herein filed a motion for reconsideration and a new trial, praying that the order admitting the will to probate be vacated and the authenticated will declared null and void ab initio. The appellee herein, naturally filed her opposition to the petition and, after the corresponding hearing thereof, the trial court erred its over of denial on July 1, 1932. Engracia Manahan, under the pretext of appealing from this last order, likewise appealed from the judgment admitting the will to probate. In this instance, the appellant assigns seven (7) alleged errors as committed by the trial court. Instead of discussing them one by one, we believe that, essentially, her Page 10 of 34
claim narrows down to the following: (1) That she was an interested party in the testamentary proceedings and, as such, was entitled to and should have been notified of the probate of the will; (2) that the court, in its order of September 22, 1930, did not really probate the will but limited itself to decreeing its authentication; and (3) that the will is null and void ab initio on the ground that the external formalities prescribed by the Code of Civil Procedure have not been complied with in the execution thereof. The appellant's first contention is obviously unfounded and untenable. She was not entitled to notification of the probate of the will and neither had she the right to expect it, inasmuch as she was not an interested party, not having filed an opposition to the petition for the probate thereof. Her allegation that she had the status of an heir, being the deceased's sister, did not confer on her the right to be notified on the ground that the testatrix died leaving a will in which the appellant has not been instituted heir. Furthermore, not being a forced heir, she did not acquire any successional right. The second contention is puerile. The court really decreed the authentication and probate of the will in question, which is the only pronouncement required of the trial court by the law in order that the will may be considered valid and duly executed in accordance with the law. In the phraseology of the procedural law, there is no essential difference between the authentication of a will and the probate thereof. The words authentication and probate are synonymous in this case. All the law requires is that the competent court declared that in the execution of the will the essential external formalities have been complied with and that, in view thereof, the document, as a will, is valid and effective in the eyes of the law. The last contention of the appellant may be refuted merely by stating that, once a will has been authenticated and admitted to probate, questions relative to the validity thereof can no more be raised on appeal. The decree of probate is conclusive with respect to the due execution thereof and it cannot impugned on any of the grounds authorized by law, except that of fraud, in any separate or independent action or proceedings (sec. 625, Code of Civil Procedure; Castaeda vs. Alemany, 3 Phil., 426;Pimentel vs. Palanca, 5 Phil., 436; Sahagun vs. De Gorostiza, 7 Phil., 347; Limjuco vs. Ganara, 11 Phil., 393; Montaano vs. Suesa, 14 Phil., 676; In re Estate of Johnson, 39 Phil., 156; Riera vs. Palmaroli, 40 Phil., 105; Austria vs. Ventenilla, 21 Phil., 180; Ramirez vs. Gmur, 42 Phil., 855; and Chiong Joc-Soy vs. Vao, 8 Phil., 119). But there is another reason which prevents the appellant herein from successfully maintaining the present action and it is that inasmuch as the proceedings followed in a testamentary case are in rem, the trial court's decree admitting the will to probate was effective and conclusive against her, in accordance with the provisions of section 306 of the said Code of Civil Procedure which reads as follows: SEC. 306. EFFECT OF JUDGMENT. . . . . 1. 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 relation of a particular person the judgment or order is conclusive upon the title of the thing, the will or administration, or the condition or relation of the person: Provided, That the probate of a will or granting of letters of administration shall only be prima facieevidence of the death of the testator or intestate; . . . . Page 11 of 34
On the other hand, we are at a loss to understand how it was possible for the herein appellant to appeal from the order of the trial court denying her motion for reconsideration and a new trial, which is interlocutory in character. In view of this erroneous interpretation, she succeeded in appealing indirectly from the order admitting the will to probate which was entered one year and seven months ago. Before closing, we wish to state that it is not timely to discuss herein the validity and sufficiency of the execution of the will in question. As we have already said, this question can no more be raised in this case on appeal. After due hearing, the court found that the will in question was valid and effective and the order admitting it to probate, thus promulgated, should be accepted and respected by all. The probate of the will in question now constitutes res judicata. Wherefore, the appeal taken herein is hereby dismissed, with costs against the appellant. So ordered. G.R. No. L-29300 June 21, 1978 Gallanosa vs Arcangel AQUINO, J .: In this special civil action of certiorari, filed on July 29, 1968, the petitioners 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 ground of prescription, the complaint in Civil Case No. 2233 of the Court of First Instance of Sorsogon. The case involves the sixty-one parcels of land in Sorsogon left by Florentino Hitosis, with an estimated value of P50,000, trial claims for damages exceeding one million pesos. The undisputed facts are as follows: 1. Florentino Hitosis executed a will in the Bicol dialect on June 19, 1938 when he was eighty years old. He died on May 26, 1939 at Irosin, Sorsogon. A childless widower, he as survived by his brother, Leon Hitosis. His other brothers, named Juan, Tito (Juancito), Leoncio (Aloncio) trial Apolonio and only sister, Teodora, were all dead. 2. On June 24, 1939 a petition for the probate of his will was filed in the Court of First Instance of Sorsogon (Special Proceeding No. 3171). The notice of hearing was duly published. In that will, Florentino bequeathed his one-half share in the conjugal estate to his second wife, Tecla Dollentas, and, should Tecla predecease him, as was the case, his one-half share would be assigned to the spouses Pedro Gallanosa and Corazon Grecia, the reason being that Pedro, Tecla's son by her first marriage, grew up under the care of Florentino; he had treated Pedro as his foster child, and Pedro has rendered services to Florentino and Tecla. Florentino likewise bequeathed his separate properties consisting of three parcels of abaca land and parcel of riceland to his protege (sasacuyang ataman), Adolfo Fortajada, a minor. 3. Opposition to the probate of the will was registered by the testator's legal heirs, namely, his surviving brother, Leon, trial his nephews trial nieces. After a hearing, wherein the oppositors did not present any evidence in support of their opposition, Judge Pablo S. Rivera, in his decision of October 27, 1939, admitted the will to probate and appointed Gallanosa as executor. Judge Rivera specifically found that the testator executed his last will "gozando de buena salud y facultades mentales y no obrando en virtud de amenaza, fraude o influencia indebida." 4. On October 24, 1941, the testamentary heirs, the Gallanosa spouses trial Adolfo Fortajada, submitted a project of partition covering sixty-one parcels of land located in various parts of Sorsogon, large cattle trial several pieces of personal property which were distributed in accordance with Florentino's will. The heirs assumed the obligations of the estate amounting to P7,129.27 in the portion of P2,376.42 for Adolfo Fortajada and P4,752.85 for the Gallanosa spouses. The project of partition was approved by Judge Doroteo Amador in his order of March 13, 1943, thus confirming the heirs' possession of their respective shares. The testator's legal heirs did not appeal from the decree of probate trial from the order of partition trial distribution. 5. On February 20, 1952, Leon Hitosis trial the heirs of Florentino's deceased brothers trial sisters instituted an action in the Court of First Instance of Sorsogon against Pedro Gallanosa for the recovery of the said sixty-one parcels of land. They alleged that they, by themselves or through their predecessors-in-interest, had been in continuous possession of those lands en concepto de dueo trial that Gallanosa entered those lands in 1951 trial asserted ownership over the lands. They prayed that they be declared the owners of the lands trial that they be restored to the possession thereof. They also claimed damages (Civil Case No. 696). Page 12 of 34
6. Gallanosa moved to dismiss the above complaint for lack of cause of action trial on the ground of bar by the prior judgment in the probate proceeding. Judge Anatolio C. Maalac dismiss the complaint on the ground of res judicata in his order of August 14, 1952 wherein he said: It also appears that the plaintiffs and/or their predecessors-in- interest had intervened in the testate proceedings in Civil Case No. 3171 of this Court for- the purpose of contesting the probate of the will of (the) late Florentino Hitosis; trial had their opposition prospered trial the will denied of probate, the proceedings would have been converted into one of intestacy (Art. 960 Civil Code) and the settlement of the estate of the said deceased would have been made in accordance with the provisions of law governing legal or intestate succession ... , in which case the said plaintiffs, as the nearest of kin or legal heirs of said Florentino Mitosis, would have succeeded to the ownership and possession of the 61 parcels of land in question forming part of his estate (art. 1003, Civil Code). However, the derision of the Court was adverse to them, when it their opposition trial ordered the probate of his will. From this decision (Annex K) legalizing the said will, the oppositors did not file any appeal within the period fixed by law, despite the fact that they were duly notified thereof, so that the said decision had become final trial it now constitutes a bar to any action that the plaintiffs may institute for the purpose of a redetermination of their rights to inherit the properties of the late Florentino Hitosis. In other words, the said decision of this Court in Civil Case special ) No. 3171, in which the herein plaintiffs or their predecessors-in- interest had intervened as parties oppositors, constitutes a final judicial determination of the issue that the said plaintiffs, as ordinary heirs, have no legal rights to succeed to any of the properties of the late Florentino Hitosis; consequently, their present claim to the ownership trial possession of the 61 parcels of land in question is without any legal merit or basis. 7. The plaintiffs did not appeal from that order of dismissal which should have set the matter at rest. But the same plaintiffs or oppositors to the probate of the will, trial their heirs, with a persistence befitting a more meritorious case, filed on September 21, 1967, or fifteen years after the dismissal of Civil Case No. 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. 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. Page 13 of 34
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: (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). 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 Page 14 of 34
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 dismissal rendered by Judge Maalac 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. It is a fundamental concept in the organization of every jural system, a 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 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: Pealosa 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 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 (b) that the judgment was obtained by means of extrinsic or collateral fraud. In the latter case, the period for annulling the judgment is four years from the discovery of the fraud (2 Moran's Comments on the Rules of Court, 1970 Edition, pp. 245-246; Mauricio vs. Villanueva, 106 Phil. 1159). To hurdle over the obstacle of prescription, the trial court, naively adopting the 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 action or defense for the declaration of the inexistence of a contract does not prescribe", applies to wills. That ruling is a glaring error. Article 1410 cannot possibly apply to last wills trial testaments. The trial court trial plaintiffs' counsel relied upon the case of Dingle 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 efficacy to voidcontracts, a ruling elevated to the category of a codal provision 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. G.R. No. L-20234 December 23, 1964 PAULA DE LA CERNA, ET AL., petitioners, vs. MANUELA REBACA POTOT, ET AL., and THE HONORABLE COURT OF APPEALS, respondents. REYES, J.B.L., J .: 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 First Instance of Cebu (Civ. Case No. R-3819) and ordering the dismissal of an action for partition. The factual background appears in the following portion of the decision of the Court of Appeals (Petition, Annex A, pp. 2-4): 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 Page 15 of 34
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 aos 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 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). 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, Page 16 of 34
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. SOFIA J. NEPOMUCENO, petitioner, vs. THE HONORABLE COURT OF APPEALS, RUFINA GOMEZ, OSCAR JUGO ANG, CARMELITA JUGO,respondents.
GUTIERREZ, JR., J .: This is a petition for certiorari to set aside that portion of the decision of the respondent Court of Appeals (now intermediate Appellate Court) dated June 3, 1982, as amended by the resolution dated August 10, 1982, declaring as null and void the devise in favor of the petitioner and the resolution dated December 28, 1982 denying petitioner's motion for reconsideration. Martin Jugo died on July 16, 1974 in Malabon, Rizal. He left a last Will and Testament duly signed by him at the end of the Will on page three and on the left margin of pages 1, 2 and 4 thereof in the presence of Celestina Alejandro, Myrna C. Cortez, and Leandro Leano, who in turn, affixed their signatures below the attestation clause and on the left margin of pages 1, 2 and 4 of the Will in the presence of the testator and of each other and the Notary Public. The Will was acknowledged before the Notary Public Romeo Escareal by the testator and his three attesting witnesses. In the said Will, the testator named and appointed herein petitioner Sofia J. Nepomuceno as his sole and only executor of his estate. It is clearly stated in the Will that the testator was legally married to a certain Rufina Gomez by whom he had two legitimate children, Oscar and Carmelita, but since 1952, he had been estranged from his lawfully wedded wife and had been living with petitioner as husband and wife. In fact, on December 5, 1952, the testator Martin Jugo and the petitioner herein, Sofia J. Nepomuceno were married in Victoria, Tarlac before the Justice of the Peace. The testator devised to his forced heirs, namely, his legal wife Rufina Gomez and his children Oscar and Carmelita his entire estate and the free portion thereof to herein petitioner. The Will reads in part: Art. III. That I have the following legal heirs, namely: my aforementioned legal wife, Rufina Gomez, and our son, Oscar, and daughter Carmelita, both surnamed Jugo, whom I declare and admit to be legally and properly entitled to inherit from me; that while I have been estranged from my above-named wife for so many years, I cannot deny that I was legally married to her or that we have been separated up to the present for reasons and justifications known fully well by them: Art. IV. That since 1952, 1 have been living, as man and wife with one Sofia J. Nepomuceno, whom I declare and avow to be entitled to my love and affection, for all the things which she has done for me, now and in the past; that while Sofia J. Nepomuceno has with my full knowledge and consent, did comport and represent myself as her own husband, in truth and in fact, as well as in the eyes of the law, I could not bind her to me in the holy bonds of matrimony because of my aforementioned previous marriage; On August 21, 1974, the petitioner filed a petition for the probate of the last Will and Testament of the deceased Martin Jugo in the Court of First Instance of Rizal, Branch XXXIV, Caloocan City and asked for the issuance to her of letters testamentary. On May 13, 1975, the legal wife of the testator, Rufina Gomez and her children filed an opposition alleging inter alia that the execution of the Will was procured by undue and improper influence on the part of the petitioner; that at the time of the execution of the Will, the testator was already very sick and that petitioner having admitted her living in concubinage with the testator, she is wanting in integrity and thus, letters testamentary should not be issued to her. On January 6, 1976, the lower court denied the probate of the Will on the ground that as the testator admitted in his Will to cohabiting with the petitioner from December Page 17 of 34
1952 until his death on July 16, 1974, the Will's admission to probate will be an Idle exercise because on the face of the Will, the invalidity of its intrinsic provisions is evident. The petitioner appealed to the respondent-appellate court. On June 2, 1982, the respondent court set aside the decision of the Court of First Instance of Rizal denying the probate of the will. The respondent court declared the Will to be valid except that the devise in favor of the petitioner is null and void pursuant to Article 739 in relation with Article 1028 of the Civil Code of the Philippines. The dispositive portion of the decision reads: WHEREFORE, the decision a quo is hereby set aside, the will in question declared valid except the devise in favor of the appellant which is declared null and void. The properties so devised are instead passed on in intestacy to the appellant in equal shares, without pronouncement as to cost. On June 15, 1982, oppositors Rufina Gomez and her children filed a "Motion for Correction of Clerical Error" praying that the word "appellant" in the last sentence of the dispositive portion of the decision be changed to "appellees" so as to read: "The properties so devised are instead passed on intestacy to the appellees in equal shares, without pronouncement as to costs." The motion was granted by the respondent court on August 10, 1982. On August 23, 1982, the petitioner filed a motion for reconsideration. This was denied by the respondent court in a resolution dated December 28, 1982. The main issue raised by the petitioner is whether or not the respondent court acted in excess of its jurisdiction when after declaring the last Will and Testament of the deceased Martin Jugo validly drawn, it went on to pass upon the intrinsic validity of the testamentary provision in favor of herein petitioner. The petitioner submits that the validity of the testamentary provision in her favor cannot be passed upon and decided in the probate proceedings but in some other proceedings because the only purpose of the probate of a Will is to establish conclusively as against everyone that a Will was executed with the formalities required by law and that the testator has the mental capacity to execute the same. The petitioner further contends that even if the provisions of paragraph 1 of Article 739 of the Civil Code of the Philippines were applicable, the declaration of its nullity could only be made by the proper court in a separate action brought by the legal wife for the specific purpose of obtaining a declaration of the nullity of the testamentary provision in the Will in favor of the person with whom the testator was allegedly guilty of adultery or concubinage. The respondents on the other hand contend that the fact that the last Will and Testament itself expressly admits indubitably on its face the meretricious relationship between the testator and the petitioner and the fact that petitioner herself initiated the presentation of evidence on her alleged ignorance of the true civil status of the testator, which led private respondents to present contrary evidence, merits the application of the doctrine enunciated in Nuguid v. Felix Nuguid, et al. (17 SCRA 449) and Felix Balanay, Jr. v. Hon. Antonio Martinez, et al.(G.R. No. L- 39247, June 27, 1975). Respondents also submit that the admission of the testator of the illicit relationship between him and the petitioner put in issue the legality of the devise. We agree with the respondents. The respondent court acted within its jurisdiction when after declaring the Will to be validly drawn, it went on to pass upon the intrinsic validity of the Will and declared the devise in favor of the petitioner null and void. The general rule is that in probate proceedings, the court's area of inquiry is limited to an examination and resolution of the extrinsic validity of the Will. The rule is expressed thus: xxx xxx xxx ... It is elementary that a probate decree finally and definitively settles all questions concerning capacity of the testator and the proper execution and witnessing of his last Will and testament, irrespective of whether its provisions are valid and enforceable or otherwise. (Fernandez v. Dimagiba,21 SCRA 428) The petition below being for the probate of a Will, the court's area of inquiry is limited to the extrinsic validity thereof. The testators testamentary capacity and the compliance with the formal requisites or solemnities prescribed by law are the only questions presented for the resolution of the court. Any inquiry into the intrinsic validity or efficacy of the provisions of the will or the legality of any devise or legacy is premature. xxx xxx xxx True or not, the alleged sale is no ground for the dismissal of the petition for probate. Probate is one thing; the validity of the Page 18 of 34
testamentary provisions is another. The first decides the execution of the document and the testamentary capacity of the testator; the second relates to descent and distribution (Sumilang v. Ramagosa, 21 SCRA 1369) xxx xxx xxx To establish conclusively as against everyone, and once for all, the facts that a will was executed with the formalities required by law and that the testator was in a condition to make a will, is the only purpose of the proceedings under the new code for the probate of a will. (Sec. 625). The judgment in such proceedings determines and can determine nothing more. In them the court has no power to pass upon the validity of any provisions made in the will. It can not decide, for example, that a certain legacy is void and another one valid. ... (Castaneda v. Alemany, 3 Phil. 426) The rule, however, is not inflexible and absolute. Given exceptional circumstances, the probate court is not powerless to do what the situation constrains it to do and pass upon certain provisions of the Will. In Nuguid v. Nuguid (17 SCRA 449) cited by the trial court, the testator instituted the petitioner as universal heir and completely preterited her surviving forced heirs. A will of this nature, no matter how valid it may appear extrinsically, would be null and void. Separate or latter proceedings to determine the intrinsic validity of the testamentary provisions would be superfluous. 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 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 Page 19 of 34
probate of a will, the court does not ordinarily look into the intrinsic validity of its provisions. Article 739 of the Civil Code provides: The following donations shall be void: (1) Those made between persons who were guilty of adultery or concubinage at the time of the donation; (2) Those made between persons found guilty of the same criminal offense, in consideration thereof; (3) Those made to a public officer or his wife, descendants and ascendants, by reason of his office. In the case referred to in No. 1, the action for declaration of nullity may be brought by the spouse of the donor or donee; and the guilt of the donor and donee may be proved by preponderance of evidence in the same action. Article 1028 of the Civil Code provides: The prohibitions mentioned in Article 739, concerning donations inter vivos shall apply to testamentary provisions. In Article III of the disputed Will, executed on August 15, 1968, or almost six years before the testator's death on July 16, 1974, Martin Jugo stated that respondent Rufina Gomez was his legal wife from whom he had been estranged "for so many years." He also declared that respondents Carmelita Jugo and Oscar Jugo were his legitimate children. In Article IV, he stated that he had been living as man and wife with the petitioner since 1952. Testator Jugo declared that the petitioner was entitled to his love and affection. He stated that Nepomuceno represented Jugo as her own husband but "in truth and in fact, as well as in the eyes of the law, I could not bind her to me in the holy bonds of matrimony because of my aforementioned previous marriage. There is no question from the records about the fact of a prior existing marriage when Martin Jugo executed his Will. There is also no dispute that the petitioner and Mr. Jugo lived together in an ostensible marital relationship for 22 years until his death. It is also a fact that on December 2, 1952, Martin Jugo and Sofia J. Nepomuceno contracted a marriage before the Justice of the Peace of Victoria, Tarlac. The man was then 51 years old while the woman was 48. Nepomuceno now contends that she acted in good faith for 22 years in the belief that she was legally married to the testator. The records do not sustain a finding of innocence or good faith. As argued by the private respondents: First. The last will and testament itself expressly admits indubitably on its face the meretricious relationship between the testator and petitioner, the devisee. Second. Petitioner herself initiated the presentation of evidence on her alleged ignorance of the true civil status of the testator, which led private respondents to present contrary evidence. In short, the parties themselves dueled on the intrinsic validity of the legacy given in the will to petitioner by the deceased testator at the start of the proceedings. Whether or not petitioner knew that testator Martin Jugo, the man he had lived with as man and wife, as already married, was an important and specific issue brought by the parties before the trial court, and passed upon by the Court of Appeals. Instead of limiting herself to proving the extrinsic validity of the will, it was petitioner who opted to present evidence on her alleged good faith in marrying the testator. (Testimony of Petitioner, TSN of August 1, 1982, pp. 56-57 and pp. 62-64). Private respondents, naturally, presented evidence that would refute the testimony of petitioner on the point. Sebastian Jugo, younger brother of the deceased testator, testified at length on the meretricious relationship of his brother and petitioner. (TSN of August 18,1975). Clearly, the good faith of petitioner was by option of the parties made a decisive issue right at the inception of the case. Page 20 of 34
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 secrecy, especially so when she was already about 50 years old at the time of marriage. THIRD: The fact that petitioner broke off from Martin Jugo in 1923 is by itself conclusive demonstration that she new that the man she had openly lived for 22 years as man and wife was a married man with already two children. FOURTH: Having admitted that she knew the children of respondent Rufina Gomez, is it possible that she would not have asked Martin Jugo whether or not they were his illegitimate or legitimate children and by whom? That is un-Filipino. FIFTH: Having often gone to Pasig to the residence of the parents of the deceased testator, is it possible that she would not have known that the mother of private respondent Oscar Jugo and Carmelita Jugo was respondent Rufina Gomez, considering that the houses of the parents of Martin Jugo (where he had lived for many years) and that of respondent Rufina Gomez were just a few meters away? Such pretentions of petitioner Sofia Nepomuceno are unbelievable. They are, to say the least, inherently improbable, for they are against the experience in common life and the ordinary instincts and promptings of human nature that a woman would not bother at all to ask the man she was going to marry whether or not he was already married to another, knowing that her groom had children. It would be a story that would strain human credulity to the limit if petitioner did not know that Martin Jugo was already a married man in view of the irrefutable fact that it was precisely his marriage to respondent Rufina Gomez that led petitioner to break off with the deceased during their younger years. Moreover, the prohibition in Article 739 of the Civil Code is against the making of a donation between persons who are living in adultery or concubinage. It is the donation which becomes void. The giver cannot give even assuming that the recipient may receive. The very wordings of the Will invalidate the legacy because the testator admitted he was disposing the properties to a person with whom he had been living in concubinage. WHEREFORE, the petition is DISMISSED for lack of merit. The decision of the Court of Appeals, now Intermediate Appellate Court, is AFFIRMED. No costs. SECOND DIVISION [G.R. No. L-5405. January 31, 1956.] ERNESTO M. GUEVARA, Petitioner, vs. ROSARIO GUEVARA and PEDRO C. QUINTO, Respondents.
D E C I S I O N CONCEPCION, J .: Page 21 of 34
This is a petition for review by certiorari of a decision of the Court of Appeals. The pertinent facts are set forth in said decision, from which we quote:chanroblesvirtuallawlibrary This case being the sequel to, and aftermath of, a previous litigation between the parties that reached the Supreme Court, through the former Court of Appeals, it becomes necessary to restate the essential antecedent facts to view the issues in proper perspective. For this purpose, it is important to recall that on August 26, 1931, Victorino L. Guevara, a resident of Bayambang, Pangasinan, executed a will (Exhibit A), distributing assorted movables and a residential lot among his children, Rosario and Ernesto Guevara, and his stepchildren, Vivencio, Eduvigis, Dionista, Candida, and Pio Guevara. To his second wife Augustia Posadas, the testator bequeathed, in addition to various movables, a portion of 25 hectares to be taken out of a 259 odd hectare parcel outlined in Plan Psu-68618, plus another five (5) hectares in settlement of her widows usufruct. The balance of the 259 odd hectares he distributed as follows:chanroblesvirtuallawlibrary 100 hectares reserved for disposal during the testators lifetime and for payment of his debts and family expenses; 108.0854 hectares to his legitimate son Ernesto Guevara, including therein 43.2342 hectares by way of mejora; 21.6171 hectares to mi hija natural reconocida Rosario Guevara. Ernesto Guevara was appointed executor without bond. On July 12, 1933, the same testator executed a deed of sale in favor of Ernesto Guevara, conveying to the latter the southern half of the 259-hectare lot heretofore mentioned, and expressly recognized Ernesto Guevara as owner of the northern half. Prior to this sale, on November 1, 1932, Victorino and his son Ernesto had jointly applied for registration of the big parcel (case No. 15174), but in view of the sale from the former to the latter, the decree was issued in the name of Ernesto Guevara exclusively and for the whole tract, a certificate of title (No. 51691 of Pangasinan) being issued in his sole name on October 12, 1933. Fifteen days previously, i.e., on September 27, 1933, Victorino Guevara died, but his will was not filed for probate. About four years later, Rosario Guevara, claiming to be a recognized natural child of the deceased Victorino, and on the assumption that he had died intestate, brought suit against Ernesto Guevara to recover 423,492 square meters of the tract covered by certificate of title No. 51691 as the portion that should correspond to her (Rosario) by way of legitime. The case reached the former Court of Appeals in due course and was decided in Rosario Guevaras favor (Exhibit E); chan roblesvirtualawlibrarybut upon certiorari, the Supreme Court modified the judgment in December, 1943, as follows (Exhibit F); Wherefore, that part of the decision of the Court of Appeals which declares in effect that notwithstanding exhibit 2 and the issuance of original certificate of title No. 51691 in the name of Ernesto M. Guevara, one-half of the land described in said certificate of title belongs to the estate of Victorino L. Guevara and the other half to Ernesto M. Guevara in consideration of the latters assumption of the obligation to pay all the debts of the deceased, is hereby affirmed; chan roblesvirtualawlibrarybut the judgment of said court insofar as it awarded any relief to the Respondent Rosario Guevara in this action is hereby reversed and set aside, and the parties are hereby ordered to present the document Exhibit A to the proper court for probate in accordance with law, without prejudice to such action as the provincial fiscal of Pangasinan may take against the responsible party or parties under section 4 of Rule 76. After the said document is approved and allowed by the court as the last will and testament of the deceased Victorino L. Guevara, the heirs and legatees herein named may take such action, judicial or extrajudicial, as may be necessary to partition the estate of the testator, taking into consideration the pronouncements made in part II of this opinion. No finding as to costs in any of the three instances. (Appellants Brief, pp. 13-14.) Claiming to act pursuant to the foregoing decision, Rosario Guevara commenced on October 5, 1945, special proceedings No. 2646 in the Court of First Instance of Pangasinan for the probate of the will of Victorino Guevara. In paragraph 10 of the petition, it was alleged:chanroblesvirtuallawlibrary 10. Que dicho testamento, o sus disposiciones testamentarias, ha sido de jure revocado, o revocados, en cuanto a la parcela de terreno de 259 hectareas descrita en dicho testamento, por haber el testador enajenado o dispuesto intervivos de la misma en la forma mencionada en las tres decisiones supra-mencionadas; chan roblesvirtualawlibraryy que la solicitante pide la legalizacion de dicho testamento tan solo para los efectos del reconocimiento de hija natural hecha en dicho testamento a favor de la demandante y en obediencia al mandato de la Corte Suprema en su decision supra. (Record on Appeal, p. 5.) Notice of the petition having been duly published pursuant to Rule of Court 77, section 4, Ernesto Guevara appeared and opposed the probate. Pedro L. Quinto, counsel for Rosario in the former litigation, was allowed to intervene in view of his duly recorded attorneys lien. On January 31, 1946, Ernesto Guevara, through counsel, filed a motion to dismiss the petition on the grounds that (a) the petition itself alleged that the will was revoked; chan roblesvirtualawlibrary(b) that whatever right to probate the parties may have has already prescribed (Record on Appeal, p. 14); chan roblesvirtualawlibraryand (c) that the purpose of the probate was solely to have Petitioner Rosario declared an acknowledged natural child of the deceased. By order of December 9, 1946, Judge Sotero Rodas denied the motion to dismiss; chan roblesvirtualawlibrarybut upon motion of reconsideration, Judge Maalac of the same court, on June 23, 1937, reconsidered and set aside the previous Page 22 of 34
resolution and ordered the petition dismissed on the ground that Rosario Guevaras petition did not ask for the probate in toto of the will, contrary to the order of the Supreme Court; chan roblesvirtualawlibrarythat her right to petition for the probate of the testament of Victorino L. Guevara had prescribed; chan roblesvirtualawlibraryand that her action for judicial declaration of acknowledgment had likewise prescribed. An amended petition for the probate of the will in toto and another petition to reconsider the previous order were subsequently denied; chan roblesvirtualawlibrarythe former on the ground that there was a radical change of theory from that embodied in the original petition, and the second for the same reasons stated in the order of June 23, 1947. Rosario L. Guevara and Pedro L. Quinto thereupon brought the case on appeal to this Court, assigning no less than twenty (20) alleged errors committed by the court below. (Guevara vs. Guevara, C.A. G. R. No. 5416-R, promulgated December 26, 1951; chan roblesvirtualawlibrarysee Appendix to brief for the Petitioner-Appellant, pp. 1-6.) The dispositive part of the decision of the Court of Appeals reads as follows:chanroblesvirtuallawlibrary The order of dismissal of the petition for probate is reversed and the court of origin ordered to reinstate the petition, and to hear and decide whether the will of Victorino Guevara, deceased, should be allowed to probate. Costs against Appellees in both instances. (Ibid.) In his appeal therefrom, Petitioner Ernesto M. Guevara raises the following questions, to wit:chanroblesvirtuallawlibrary (a) Did Respondents herein duly perfect their appeal from the decision of the Court of First Instance of Pangasinan? (b) Did the Court of Appeals have jurisdiction to entertain said appeal? (c) Is the petition for probate of the alleged will of the deceased Victorino L. Guevara barred by the statute of limitations? (1) With reference to the first question, Petitioner has submitted the following statement 1 of the steps taken since June 23, 1947, date of the resolution of Judge Maalac, dismissing the petition for probate of the last will and testament of Victoriano L. Guevara:chanroblesvirtuallawlibrary June 23, 1947 Date of Resolution appealed from. July 14, 1947 Date of Joint Petition for Reconsideration filed by Appellants. July 25, 1947 Date of Amended petition for probate of will. July 25, 1947 Motion for admission of Amended Petition. August 2, 1947 Appellants motion to postpone hearing on petition for reconsideration and motion for admission of Amended Petition. August 10, 1947 Appellants urgent motion for continuance of hearing on joint petition for Reconsideration as well as Motion to Admit Amended Petition. August 25, 1947 Motion for extension of time to file memorandum. September 1, 1947 Memorandum for Appellants submitted. October 7, 1947 Memorandum for Appellee submitted. October 14, 1947 Appellants petition for ten (10) days to file reply memorandum. November 1, 1947 Appellants petition to file reply memorandum on or before November 9, 1947. November 8, 1947 Appellants petition for extension to file reply memorandum. November 18, 1947 Verified reply of Appellant Rosario Guevara. November 24, 1947 Reply memorandum of Pedro C. Quinto filed. January 12, 1948 Court denies both petitions of July 14 and 25, 1947. January 24, 1948 Notice of appeal to Supreme Court and petition for thirty (30) days extension by AppellantRosario Guevara. January 29, 1948 Order granting petition for extension. Page 23 of 34
February 1, 1948 Another notice of appeal to Supreme Court and motion for thirty (30) days extension byAppellant Rosario Guevara. February 28, 1948 Appellants ex-parte petition for further extension. March 6, 1948 Original joint Record on Appeal filed. (This was so defective and incomplete it consisted of mere disjointed sheets of paper intercalated with one another and was a mere token record on appeal.) March 8, 1948 Another joint petition for reconsideration of Appellants. March 11, 1948 Appellees objection to record on appeal. March 17, 1948 Verified reply of Appellants to objection. March 18, 1948 Appellees objection to joint petition for reconsideration. June 19, 1948 Appellants memorandum in support of the joint petition for reconsideration. July 23, 1948 Order of denial of Joint Petition and disapproving original record on appeal as incomplete and giving Appellants within 10 days from notice. July 26, 1948 Amended Notice of Appeal to the Court of Appeals instead of to the Supreme Court. July 28 and 29, 1948 Appellants received copy of order of July 23, 1948. August 1, 1948 Petition for five (5) days extension to file amended Record on Appeal filed by Appellant Pedro C. Quinto. August 10, 1948 Appellants Joint Petition for last extension of two (2) days. August 10, 1948 Filing of amended joint record on appeal. (This is also again so defective and incomplete as to constitute another mere token record on appeal as required by the Rules.) August 24, 1948 Appellants petition for ten (10) days period to reply to objection, if any was to be filed. August 27, 1948 Appellees objection to amended record on appeal. September 8, 1948 Appellants reply to objection. October 20, 1948 Court order sustaining objection and gives Appellants fifteen (15) days from notice to redraft record on appeal. November 3, 1948 Appellants joint petition to reconsider order of disapproval of Amended Record on Appeal. November 3, 1948 Appellants file re-amended joint record on appeal. (This again disregarded the orders of the court regarding the contents of the record on appeal.). November 22, 1948 Appellee objected to approval of re-amended joint record on appeal and prayed that order appealed from be declared final. March 22, 1949 Court sustains Appellees objection to record on appeal denying petition for reconsideration and Appellants given fifteen (15) days from notice to satisfy requirements of courts previous order. April 8, 1949 Appellants file in Supreme Court petition for certiorari and mandamus attacking order of June 23, 1947. April 11, 1949 Appellant Quintos petition for fifteen (15) days extension to file Re-amended Record on Appeal. Page 24 of 34
April 12, 1949 Supreme Court denies petition off-hand. April 16, 1949 Appellant Rosario Guevaras motion for fifteen (15) days extension for the same purpose. April 21, 1949 Court granted extension prayed for to expire May 1, 1948. April 21, 1949 Second Re-Amended Record on Appeal filed. June 11, 1949 Appellees opposition to Second Re-Amended Record on Appeal. June 29, 1949 Appellants joint notice of hearing on Second Re-Amended Record on Appeal for July 12, 1949. July 10, 1949 Appellants joint reply to opposition. July 12, 1949 Action on record on appeal deferred on petition of Atty. Quinto. September 3, 1949 Appellant Quintos notice of hearing on Second Re-Amended Record on Appeal for September 28, 1949. September 28, 1949 Order of court approving same. December 8, 1949 Clerk of lower court sends records to appellate court. December 10, 1949 Appellant Quintos motion ex-parte to have records sent up to appellate court. (Petitioner-Appellants Brief, pp. 41-47.) Based upon the foregoing, Oppositor and Appellee Ernesto M. Guevara filed, with the Court of Appeals, a motion praying that the appeal be dismissed:chanroblesvirtuallawlibrary (a) Because due to the Appellants many and repeated dilatory tactics, the prosecution of their appeal has been unduly and unreasonably delayed for a period which should strike anyone as totally without justification. The resolution appealed from was dictated by the lower court on June 23, 1947, so that a period of over two (2) years and nine (9) months until the date of this writing has elapsed, thus establishing a record-holding delay which should not be sanctioned by the Courts as prejudicial to the administration of justice. (b) Because Appellants, in violation of Rule 48, section 3, did not diligently prosecute their appeal by failing to have the record sent up to this Honorable Court within thirty (30) days from the time their Second Re-amended Record on Appeal was approved on September 28, 1949; chan roblesvirtualawlibraryand it was only so transmitted on December 8, 1949, that is after the lapse of two (2) months and ten (10) days. (c) Because, at any rate, the first Amended Joint Record on Appeal was filed beyond the extension granted by the Court and, consequently, the Appellants right to appeal has lapsed. (Exhibit A, pp. 1-2). The Court of Appeals denied said motion to dismiss for the following reasons:chanroblesvirtuallawlibrary A preliminary question was posed by the Appellee who prayed for the dismissal of the appeal on the ground that Petitioners-Appellants had unreasonably delayed the perfection of the appeal, as the Second Re-amended Joint Record on Appeal was not certified to this Court until December, 1949. After considering the voluminous record, and the arguments of both parties, we are of the opinion that both parties have contributed to the delay with lengthy memoranda, and repeated motions and objections. Moreover, the points in question are important enough to deserve adequate consideration upon the merits. Wherefore, the motion to dismiss the appeal should be and is hereby, overruled and denied. (Appendix to Brief for the Petitioner-Appellant, pp. 6- 7.) It is urged by Petitioner herein that Respondents appeal from the decision of the Court of First Instance of Pangasinan had not been duly perfected because:chanroblesvirtuallawlibrary (a) the original of the record on appeal did not comply with the Rules of Court; chan roblesvirtualawlibrary(b) the record on appeal was filed after the lapse of the reglementary period; chan roblesvirtualawlibrary(c) there has been an unprecedented delay in the filing of a satisfactory record on appeal; chan roblesvirtualawlibraryand (d) the appeal should be deemed abandoned for violation of Rule 48, section 3, of the Rules of Court. The first ground is predicated upon the fact that, instead of transcribing the motions, petitions, orders and resolutions incorporated in the original record on appeal, Respondents herein merely attached to the original copy of said record on appeal, filed with the Court of First Instance of Pangasinan, their own copies of said motions, petitions, orders and resolutions. Accordingly, the copy of said record on Page 25 of 34
appeal furnished to Petitioner herein did not contain or enclose the aforementioned parts of the record. It appears, however, that the Respondentswere given several extensions of time within which to comply with the pertinent provisions of the Rules of Court and that Respondents eventually did so. There being no question about the authority of the court of first instance to grant said extensions of time, it is clear that the first ground, relied upon by Petitioner herein, is untenable. In support of the second ground, it is alleged:chanroblesvirtuallawlibrary (a) that the original record on appeal was filed by Pedro C. Quinto only, and does not inure to the benefit of Rosario Guevara; chan roblesvirtualawlibraryand (b) thatRespondents had lost their right to appeal by the lapse of the reglementary period. As regards the first proposition, Petitioner asserts that Respondent Pedro C. Quinto had withdrawn his appearance as counsel for Respondent Rosario Guevara; chan roblesvirtualawlibrarythat Quinto had, thereafter, intervened in the case in his own behalf, in order to enforce his attorneys lien, as former counsel for Rosario Guevara; chan roblesvirtualawlibrarythat, consequently, the original record on appeal and the petitions for extension of time to file an amended record on appeal, filed by Pedro C. Quinto, were good only insofar as he is concerned, and cannot profit Rosario Guevara, she having ceased to be his client long before the filing of said original record on appeal and petitions for extension of time; chan roblesvirtualawlibrarythat this interest in the case arises from his rights as former attorney forRespondent Rosario Guevara, and, as such, is subordinate to, and dependent upon, the interest therein of said Rosario Guevara and the success of her claim therein; chan roblesvirtualawlibraryand that, her appeal not having been duly perfected, his appeal must be deemed to have no legal effect. There is no merit in this pretense, for it appears, at the foot of said record on appeal, that Pedro C. Quinto had filed the same, for himself as Appellant and in behalf of Rosario Guevara, who authorized him to perfect the appeal for both Appellants, and that similar statements were made in the body and at the foot of said petitions for extension of time. It is clear, therefore, that the aforementioned record on appeal and motions should be deemed submitted, also, byRespondent Rosario Guevara. The position then held by Pedro C. Quinto, as special prosecutor in the office of the Solicitor General, did not nullify his aforesaid acts on behalf of Rosario Guevara. Besides, said acts would seem to have been performed by him, more as attorney-in- fact than as counsel for Rosario Guevara, and this merely in connection with the perfection of her appeal. We do not find therein anything objectionable, either legally or morally, in the light of the circumstances surrounding the case. The second proposition is based upon the following reasons:chanroblesvirtuallawlibrary (a) The aforementioned record on appeal and motions for extension of time filed by Quinto on behalf of Rosario Guevara did not inure to her benefit, for which reason the reglementary period to appeal had expired before the perfection of her appeal. For the reasons already adverted to, this argument is clearly untenable. (b) The petition for reconsideration filed by Respondents on July 14, 1947, did not suspend the running of the period to perfect the record on appeal, because said petition did not comply with the provisions of Rule 37, section 1, of the Rules of Court, reading as follows:chanroblesvirtuallawlibrary Within thirty days after notice of the judgment in an action, the aggrieved party may move the trial court to set aside the judgment end grant a new trial for one or more of the following causes materially affecting the substantial rights of said party:chanroblesvirtuallawlibrary (a) Fraud, accident, mistake or excusable negligence which ordinary prudence could not have guarded against and by reason of which such aggrieved party has probably been impaired in his rights; (b) Newly discovered evidence, which he could not, with reasonable diligence, have discovered, and produced at the trial, and which if presented would probably alter the result; (c) Because excessive damages have been awarded, or the evidence was insufficient to justify the decision, or it is against the law. Said petition for reconsideration appears, however, to be predicated, in effect, upon the ground that the evidence is insufficient to justify the decision of the court of first instance, and that said decision is contrary to law. It partakes, therefore, of the nature of a motion for new trial, stating specifically the reasons in support thereof, and, hence, it suspended the period to appeal until the determination of said motion. Relative to the alleged unprecedented delay in the filing of a satisfactory record on appeal, we agree with the finding of the Court of Appeals to the effect that the delay was due to the acts of the Respondents, as well as of the Petitioner herein, for both had asked several postponements and extensions of time, filed memoranda and reply memoranda, and raised or provoked a number of other issues or incidents which necessarily delayed the perfection of the appeal. Obviously, Petitioner should not be allowed to profit by said delay, to which he had actively contributed. 1 Lastly, Petitioner maintains that, although the record on appeal had been approved on September 28, 1949, it was not forwarded to the Court of Appeals until December 8, 1949. Section 3 of Rule 48 of the Rules of Court provides:chanroblesvirtuallawlibrary If the record on appeal is not received by the Court of Appeals within thirty days after the approval thereof, the Appellee may, upon notice to the Appellant, move the court to grant an order directing the clerk of the lower court forthwith to transmit such record on appeal or to declare the same abandoned for failure to prosecute. Considering that Respondents herein were not notified of the approval of the record on appeal until December 8, 1949, on which date the record on appeal was forwarded to the Court of Appeals, and that the aforementioned provision of the Page 26 of 34
Rules of Court does impose upon said court the mandatory duty to declare the appeal abandoned for failure to prosecute, we believe that no error was committed in giving due course to the appeal and that the same has been duly perfected. (2) Did the Court of Appeals have jurisdiction to try the case, on appeal from the decision of the court of first instance? Petitioner maintains the negative, upon the ground that the appeal involved only questions of law. This is not correct, for the very motion for reconsideration adverted to above, indicated that the appeal raised some issues of fact, such as, for instance, whether or not the will in question was in the possession of Respondent Rosario Guevara and whether Respondent Quinto had been authorized by her to perfect the appeal on her behalf. At any rate, the case is now before us and, upon examination of the record and consideration of all the issues therein raised, we are of the opinion that, had the appeal been forwarded directly to this Court, we would have disposed of it in the manner set forth in the decision of the Court of Appeals, the review of which is sought by herein Appellant. (3) The last question for determination in this case is whether or not the petition for probate of the will of Victorino L. Guevara is barred by the statute of limitations, considering that the testator died on September 27, 1933, and that the petition for probate of said will was filed twelve (12) years later, or, to be exact, on October 5, 1945. The Court of Appeals resolved the question in the negative, upon the following grounds:chanroblesvirtuallawlibrary We are of the opinion that the Court below was in error when it declared that the petition for probate of the will of Victorino Guevara was barred by prescription. The provision of Article 756 of the old Civil Code (1042 of the New) and of Rule 76 of the Rules of Court, reiterating those of the old Code of Civil Procedure (Act 190), point out that the presentation of a decedents will to the competent court has always been deemed by our law as more of a duty than a right, and the neglect of such obligation carries with it the corresponding penalty and it is inconsistent with that policy that the court should refuse to admit wills to probate, without inquiry into their validity. The authority given to testators to dispose freely of a portion of their estate would be imperfectly safeguarded, unless adequate measures were provided by the state to assure that the wishes of the deceased would be carried out. Because the decedent may no longer act to have his testamentary dispositions duly executed, the state authority must take over the opposite vigilance and supervision, so that free testamentary disposition does not remain a delusion and a dream. This was expressly recognized by the Supreme Court in its previous decision, G. R. No. 48840 (Exhibit E) when it said:chanroblesvirtuallawlibrary cralaw We hold that under section 1 of Rule 74, in relation to Rule 76, if the decedent left a will and no debts and the heirs and legatees desire to make an extrajudicial partition of the estate, they must first present that will to the court for probate and divide the estate in accordance with the will. They may not disregard the provisions of the will unless those provisions are contrary to law. Neither may they do away with the presentation of the will to the court for probate, because such suppression of the will is contrary to law and public policy. The law enjoins the probate of the will and public policy requires it, because unless the will is probated and notice thereof given to the whole world, the right of a person to dispose of his property by will may be rendered nugatory, as is attempted to be done in the instant case. Absent legatees and devisees, or such of them as may have no knowledge of the will, could be cheated of their inheritance thru the collusion of some of the heirs who might agree to the partition of the estate among themselves to the exclusion of others. (Italics supplied) In holding the statute of limitations applicable to the probate of wills, the court below failed to notice that its doctrine was destructive of the right of testamentary disposition and violative of the owners right to control his property within the legal limits. The appealed order in fact leaves wills at the mercy and whim of custodians and heirs interested in their suppression. The lower court would in effect abdicate the tutelary power that passed to the Republic from the former sovereigns, that potestad suprema que en mi reside para velar por el puntual cumplimiento de las ultimas voluntades, asserted as one of the royal prerogatives in the Real Cedula of March 18, 1776. It is not without purpose that Rule of Court 77 prescribes that any person interested in the estate may, at any time after the death of the testator, petition the court having jurisdiction to have the will allowed. Taken from the Code of Procedure of California, this provision has been interpreted as meaning that the statute of limitations has no application to probate of wills. In the case of In re Humes Estate, 179 Calif. 338, 176 Pac. 681, the California Supreme Court ruled that:chanroblesvirtuallawlibrary The chapter of the Code relating to the probate of wills does not provide for opposition to such probate on the ground of the bar of the statute of limitations, but, in effect, excludes it from the category of grounds allowed as a basis for such opposition. Section 1299 declares that any person interested in the estate may at any time after the death of the testator, petition the court having jurisdiction to have the will proved. This implies that there is no arbitrary time limit. As additional reasons, the same Court stated:chanroblesvirtuallawlibrary cralaw Section 1317 declares:chanroblesvirtuallawlibrary If the court is satisfied, upon the proof taken or from the facts found by the jury that the will was duly executed and that the will testator at the time of its execution was of sound and disposing mind and not acting under duress menace fraud, or undue influence, a certificate of the proof and the facts found, signed by the judge and attested by the seal of the court, must be attached to the will. This excludes the bar of the statute of limitation from consideration as one of the matters which may be shown in opposition to the probate. This is further emphasized by section 1341, which, in substance, declares that, if upon the verdict of the jury the facts mentioned in section 1317 as aforesaid appear to be established, the court Page 27 of 34
must admit the will to probate. Section 1314 thus makes it imperative that the court shall admit the will to probate if the execution is proven and the grounds of opposition authorized by section 1312 are not established. This clearly implies that no grounds of opposition other than those enumerated in section 1312 may be set up, and it leaves no place for the application of the statute of limitations. It is further to be observed that, notwithstanding the positive and comprehensive language of sections 343 and 369, if taken literally, there can be no doubt that they cannot apply to all special proceedings of a civil nature. Proceedings for a change of name, or in arbitration, or for voluntary dissolution of a corporation, or for guardianship, or for a married woman to become a sole trader, are all within the definition of the phrase, and each is enumerated, classed, and defined as such proceeding by the Code. If the statute of limitations applied, it would begin to run against such proceedings as soon as the right to institute them accrued. Yet from the very nature of these proceedings it is obvious that neither of them could be subject to such limitation. This construction of these Code provisions is confirmed by the long-continued and uniform practice and the universal understanding of the bench and bar of the state on the subject. x x x x x x x x x Action to quiet title frequently involve wills of persons who have died many years before the action was begun. The section contemplates that such a will, although not yet probated, may be construed in the action and may be afterwards probated, and it clearly shows that the Legislature did not understand that the right to probate such will would be barred if the testator had died more than four years before the petition for probate was filed. This uniform practice and understanding of the bench and bar, and of the legislative department of the state also, is a strong argument to the effect that the statute of limitations does not apply to such proceedings. The authorities on the effect of such long acquiescence are numerous. The Statute of Limitations upon which the court below has relied, sections 38 to 50 of the old Code of Civil Procedure, Act 190, undertakes to fix limits for the filing of civil actions, but none for special proceedings of which probate is admittedly one. The distinction is not purely verbal, but based on differences that make the limitation to actions inapplicable to special proceedings. In this regard, the Supreme Court of New York has adequately remarked (In re Canfields Will, 300 NYS 502):chanroblesvirtuallawlibrary A Respondent in a private proceeding owes no legal duty or obligation to the proponent as such, wherefore it is impossible for him to violate such non-existent obligation. Furthermore such a proceeding is not instituted for the vindication of any personal right to the proponent. The subject-matter is therefore wholly absent which could give rise to any cause of action against any Respondent therein. The primary purpose of the proceeding is not to establish the existence of the right of any living person, but to determine whether or not the decedent has performed the acts specified by the pertinent statutes which are the essential prerequisites to personal direction of the mode of devolution of his property on death. There is no legal but merely a moral duty resting upon a proponent to attempt to validate the wishes of the departed, and he may and frequently does receive no personal benefit from the performance of the act. One of the most fundamental conceptions of probate law, is that it is the duty of the court to effectuate, in so far as may be compatible with the public interest, the devolutionary wishes of a deceased person (Matter of Watsons Will, 262 N.Y. 284, 294, 186 N.E. 787; chan roblesvirtualawlibraryMatter of Marrimans Estate, 124 Misc. 320, 325, 208 N.Y.S. 672; chan roblesvirtualawlibraryFoley, S. affirmed 217 App. Div. 733, 216 N.Y.S. 842; chan roblesvirtualawlibraryMatter of Lensmans Estate, 137 Misc. 77, 78, 243 N.Y.S. 126, Henderson, S., Matter of Drakes Estate, 160 Misc. 587, 598, 290 N.Y.S. 581). To that end, the court is, in effect, an additional party to every litigation affecting the disposal of the assets of the deceased. Matter of Van Valkenburghs Estate, 164 Misc. 295, 296, 298 N.Y.S. 219. A determination, therefore, that the mere non-action of a person upon whom no legal duty rested in this regard, could have the effect of subverting the wishes of one who was no longer able to protect his own unquestionable rights, would strike at the very foundation of all conceptions of justice as administered in probate courts. These decisions are of high persuasive value (Cu vs. Republic, G. R. L-3018, July 18, 1951); chan roblesvirtualawlibrarythey represent the trend of authority (57 Am. Jur. 585), and enable us to conclude that reason and precedent reject the applicability of the Statute of Limitations to probate proceedings, because these are not exclusively established in the interest of the surviving heirs, but primarily for the protection of the testators expressed wishes, that are entitled to respect as an effect of his ownership and right of disposition. If the probate of validly executed wills is required by public policy, as declared by the Supreme Court in the previous case, G.R. 48840 (Exhibit E), the state could not have intended the statute of limitations to defeat that policy. It is true, as ruled by the trial court, that the rights of parties should not be left hanging in uncertainty for periods of time far in excess of the maximum period of ten years allowed by law; chan roblesvirtualawlibrarybut the obvious remedy is for the other interested persons to petition for the production of the will and for its probate, or to inflict upon the guilty party the penalties prescribed by Rule 76 or declare the unworthiness of the heir under the Civil Code for concealing or suppressing the testament; chan roblesvirtualawlibrarybut not to dismiss the petition for probate, however belatedly submitted, and thereby refuse sanction to testamentary dispositions executed with all the formalities prescribed by law, incidentally Page 28 of 34
prejudicing also those testamentary heirs who do not happen to be successors ab intestato. That in this particular case the appealed rule may not work injustice would not excuse its adoption as a general norm applicable to all cases. It is likewise reasonable to assume that if the Supreme Court had considered the ten-year limitation applicable to probate proceedings, it would not have ordered the parties on December 29, 1943 to present the document Exhibit A to the proper court for probate in accordance with law, because the ten years from the death of the testator expired in September of that same year, two months before the decision. It is safe to assume that the high Court would not order a useless step. The reasoning that the phrase in accordance with law was a qualification signifying if still legally possible, appears to be far-fetched and unjustified. The plain import of the words employed by the high Court is that the probate should follow the procedure provided for the purpose. x x x x x x x x x The other reasons advanced by the court a quo in support of its order dismissing the petition are also untenable. The allegation contained in paragraph 10 of the original petition, that the will, or its testamentary dispositions, had been de jure revoked in so far as the parcel of 259 hectares described in said will is concerned, does not justify the finding that the probate would be pointless. What is alleged is a partial revocation, only as to the parcel of land affected; chan roblesvirtualawlibrarybut as previously shown, the will disposed of other property besides that one. And even granting that the next allegation to the effect that Plaintiff sought to probate only for the purposes of her acknowledgment as natural child in said will, constitutes an averment that the will had been fully revoked, the same would at the most constitute a conclusion or inference that the lower court was not bound to admit. Because the Appellant claimed or believed that the revocation of the will as to the large parcel of land, constituted a total revocation of the testament is no reason why the court should concur in the same belief or conclusion, especially when the will itself, appended to the petition, showed that there were other properties and other heirs or legatees, and the trial court had before it the decision of the Supreme Court ordering the filing of the will for its probate because, as stated in its decision, such a step was enjoined by law and public policy. Moreover, the defect, if any, incurred in failing to ask for the probate in toto of the will, was subsequently cured and corrected in the amended petition, where not only the objectionable statements were eliminated, but others added indicating the existence of a partible estate. Assuming that the original petition violated the order of the Supreme Court in so far as it did not ask for the allowance of the entire will, the court below erred in dismissing the petition, for it thereby sanctioned further disobedience to the order of the superior court. Once again, it must be repeated that the order of dismissal failed to take into account that the case involved not only the interests of Rosario Guevara, and those of the Appellee Ernesto Guevara and the other legatees, but specially the express desires of the testator; chan roblesvirtualawlibraryand that the protection and defense of the latter developed upon the court itself, since no one else made any move to enforce them. Even if the other heirs had failed to show interest in the case (a fact not properly inferable from their non-intervention in the case, because the order of publication of the petition only called for those interested to appear to contest the allowance and not to support it) (Rec. on App., p. 7), and even if the other heirs had already received their shares, the order refusing the probate remains indefensible. If the other heirs were not interested, there remained the wishes of the testator to be supported and protected, if validly expressed. If the heirs had distributed the estate, the distribution was illegal and improper unless the will be first probated. The Supreme Court so ruled in its previous decision (G. R. 48840) heretofore quoted. Even if the decedent left no debts and nobody raises any question as to the authenticity and due execution of the will, none of the heirs may sue for the partition of the estate in accordance with that will without first securing its allowance or probate by the court:chanroblesvirtuallawlibrary first, because the law expressly provides that no will shall pass either real or personal estate unless it is proved and allowed in the proper court; chan roblesvirtualawlibraryand, second, because the probate of a will, which is a proceeding in rem, cannot be dispensed with and substituted by any other proceeding, judicial or extrajudicial, without offending against public policy designed to effectuate the testators right to dispose of his property by will in accordance with law and to protect the rights of the heirs and legatees under the will thru the means provided by law, among which are the publication and the personal notices to each and all of said heirs and legatees. Nor may the court approve and allow the will presented in evidence in such an action for partition, which is one in personam, any more than it could decree the registration under the Torrens system of the land involved in an ordinary action for revindicacion or partition. From whatever angle the case is viewed, a hearing on the allowance of the will is unavoidable. The persistent, albeit obnoxious, attempts of Rosario Guevara to sidetrack the will are not remedied by dismissing the petition for probate of will, and allowing Ernesto to retain a greater interest than that intended by the testator. (Appendix to brief for thePetitioner-Appellant, pp. 7-15, 17-20.) We are fully in accord with these findings which we adopt as ours. In view of the foregoing, the decision appealed from is hereby affirmed, with the costs of this instance against the Petitioner. Padilla, Reyes, A., Jugo, Bautista Angelo and Labrador, J J ., concur.
Page 29 of 34
G.R. No. 168156 December 6, 2006 HEIRS OF ROSENDO LASAM, Represented by Rogelio Lasam and Atty. Edward P. Llonillo, petitioners, vs. VICENTA UMENGAN, respondent. Before the Court is the petition for review on certiorari filed by the Heirs of Rosendo Lasam, represented by Rogelio M. Lasam and Atty. Edward P. Llonillo, seeking the reversal of the Decision 1 dated February 16, 2005 of the Court of Appeals (CA) in CA-G.R. SP No. 80032. The assailed decision reversed and set aside the decision of the Regional Trial Court (RTC) of Tuguegarao City, Cagayan and dismissed, for lack of merit, the complaint for unlawful detainer file by the said heirs against respondent Vicenta Umengan. The RTC decision affirmed that of the Municipal Trial Court in Cities (MTCC) of the same city, Branch III, which had rendered judgment in favor of the heirs of Rosendo Lasam and directed the ejectment of respondent Vicenta Umengan from the lot subject of litigation. The present petition likewise seeks the reversal of the CA Resolution dated May 17, 2005 denying the motion for reconsideration filed by the heirs of Rosendo Lasam. As culled from the records, the backdrop of the present case is as follows The lot subject of the unlawful detainer case is situated in Tuguegarao City, Cagayan. It is the eastern half portion of Lot No. 5427 and Lot No. 990. The first lot, Lot No. 5427 containing an area of 1,037 square meters, is covered by Original Certificate of Title (OCT) No. 196. The second lot, Lot No. 990 containing an area of 118 sq m, is covered by OCT No. 1032. These lots are registered in the names of the original owners, spouses Pedro Cuntapay and Leona Bunagan. In an instrument denominated as Deed of Confirmation and acknowledged before a notary public on June 14, 1979, the heirs of the said spouses conveyed the ownership of Lots Nos. 990 and 5427 in favor of their two children, Irene Cuntapay and Isabel Cuntapay. In another instrument entitled Partition Agreement and acknowledged before a notary public on December 28, 1979, it was agreed that the eastern half portion (subject lot) of Lots Nos. 990 and 5427 shall belong to the heirs of Isabel Cuntapay. On the other hand, the remaining portion thereof (the west portion) shall belong to the heirs of Irene Cuntapay. The subject lot (eastern half portion) has an area of 554 sq m. Isabel Cuntapay had four children by her first husband, Domingo Turingan, namely: Abdon, Sado (deceased), Rufo and Maria. When Domingo Turingan passed away, Isabel Cuntapay remarried Mariano Lasam. She had two other children by him, namely: Trinidad and Rosendo. Sometime in January 2001, the heirs of Rosendo Lasam (son of Isabel Cuntapay by her second husband) filed with the MTCC a complaint for unlawful detainer against Vicenta Umengan, who was then occupying the subject lot. Vicenta Umengan is the daughter of Abdon Turingan (son of Isabel Cuntapay by her first husband). In their complaint, the heirs of Rosendo Lasam alleged that they are the owners of the subject lot, having inherited it from their father. Rosendo Lasam was allegedly the sole heir of the deceased Pedro Cuntapay through Isabel Cuntapay. During his lifetime, Rosendo Lasam allegedly temporarily allowed Vicenta Umengan to occupy the subject lot sometime in 1955. The latter and her husband allegedly promised that they would vacate the subject lot upon demand. However, despite written notice and demand by the heirs of Rosendo Lasam, Vicenta Umengan allegedly unlawfully refused to vacate the subject lot and continued to possess the same. Accordingly, the heirs of Rosendo Lasam were constrained to institute the action for ejectment. In her Answer with Counterclaim, Vicenta Umengan specifically denied the material allegations in the complaint. She countered that when Isabel Cuntapay passed away, the subject lot was inherited by her six children by her first and second marriages through intestate succession. Each of the six children allegedly had a pro indivisoshare of 1/6 of the subject lot. It was further alleged by Vicenta Umengan that her father, Abdon Turingan, purchased the respective 1/6 shares in the subject lot of his siblings Maria and Sado. These conveyances were allegedly evidenced by the Deed of Sale dated March 3, 1975, appearing as Doc. No. 88, Page No. 36, Book No. XIV, series of 1975 of the notarial book of Atty. Pedro Lagui. Prior thereto, Rufo already sold his 1/6 share in the subject lot to Vicenta Umengan and her husband as evidenced by the Deed of Sale dated June 14, 1961, appearing as Doc. No. 539, Page No. 41, Book No. V, series of 1961 of the notarial book of Atty. Pedro Lagui. Also on June 14, 1961, Abdon donated his 1/6 share in the subject lot to her daughter Vicenta Umengan as evidenced by the Deed of Donation appearing as Doc. No. 538, Page No. 41, Book No. V, series of 1961 of the notarial book of the same notary public. Page 30 of 34
According to Vicenta Umengan, the children of Isabel Cuntapay by her second husband (Rosendo and Trinidad Lasam) own only 2/6 portion of the subject lot. She thus prayed that the complaint for ejectment be dismissed and that the heirs of Rosendo Lasam be ordered to pay her damages. The MTCC rendered judgment in favor of the heirs of Rosendo Lasam and directed the ejectment of Vicenta Umengan. In so ruling, the MTCC gave credence to the newly discovered last will and testament (entitledTestamento Abierto) purportedly executed by Isabel Cuntapay where she bequeathed the subject lot to her son, Rosendo Lasam, thus: x x x my share 1/5 th (one-fifth) of the Cuntapay heirs, bordered on the North by Sr. Elia Canapi; to the South, by Calle Aguinaldo; to the East, by Calle P. Burgos and the West, by the late Don Luis Alonso; on the property which is my share stands a house of light materials where I presently reside; this 1/5 th (one-fifth) share of my inheritance from the Cuntapays I leave to my son Rosendo Lasam and also the aforementioned house of light material x x x 2
The MTCC reasoned that the heirs of Rosendo Lasam anchored their claim over the subject lot on the last will and testament of Isabel Cuntapay while Vicenta Umengan hinged hers on intestate succession and legal conveyances. Citing jurisprudence 3 and Article 1080 4 of the Civil Code, the MTCC opined that testacy was favored and that intestacy should be avoided and the wishes of the testator should prevail. It observed that the last will and testament of Isabel Cuntapay was not yet probated as required by law; nonetheless, the institution of a probate proceeding was not barred by prescription. With the finding that the subject lot was already bequeathed by Isabel Cuntapay to Rosendo Lasam, the MTCC held that the siblings Abdon, Sado, Rufo and Maria Turingan no longer had any share therein. Consequently, they could not convey to Vicenta Umengan what they did not own. On the issue then of who was entitled to possession of the subject lot, the MTCC ruled in favor of the heirs of Rosendo Lasam as it found that Vicenta Umengans possession thereof was by mere tolerance. The dispositive portion of the MTCC decision reads: WHEREFORE, in the light of the foregoing considerations, this Court Resolve[d] to order the EJECTMENT of VICENTA T. UMENGAN and in her place INSTITUTE THE HEIRS OF ROSENDO LASAM. It is further ordered the defendant shall pay the Heirs of Rosendo Lasam the sum of P500.00 pesos representing the monthly rental of the land from August 2000 to the time this case shall have been terminated. Ordering the defendant to pay the plaintiffs the amount of P20,000.00 attorneys fees plus cost of this litigation. So Ordered. 5
On appeal, the RTC affirmed in toto the decision of the MTCC. The RTC echoed the reasoning of the MTCC that the testamentary disposition of the property of Isabel Cuntapay should be respected, and that the heirs of Rosendo Lasam have a better right to possess the subject lot. Undaunted, Vicenta Umengan filed an appeal with the CA. She argued that the MTCC had no jurisdiction over the case as it involved the recovery of ownership of the subject lot, not merely recovery of possession or unlawful detainer. She also assailed the RTCs and the MTCCs holding that the purported Testamento Abierto of Isabel Cuntapay prevails over Vicenta Umengans muniments of title and, consequently, the heirs of Rosendo Lasam have a better right to the subject lot than Vicenta Umengan. In the assailed Decision dated February 16, 2005, the CA reversed and set aside the decision of the RTC. The appellate court preliminarily upheld the jurisdiction of the MTCC over the subject matter as it found that the allegations in the complaint made out a case for unlawful detainer. The heirs of Rosendo Lasam in their complaint, according to the CA, only sought for Vicenta Umengan to vacate and surrender possession of the subject lot. The CA also rejected the contention of the heirs of Rosendo Lasam that the issue of ownership of the subject lot had already been settled in another case, Civil Case No. 4917, before RTC (Branch 3) of Tuguegarao City. The CA stated that the trial courts order dismissing the said case was not a "judgment on the merits" as to constitute res judicata. However, the CA declared that the RTC, as well as the MTCC, erred in ruling that, by virtue of the purported last will and testament of Isabel Cuntapay, the heirs of Rosendo Lasam have a better right to the subject lot over Vicenta Umengan. The CA explained that the said last will and testament did not comply with the formal requirements of the law on wills. 6
Specifically, the CA found that the pages of the purported last will and testament were not numbered in accordance with the law. Neither did it contain the requisite attestation clause. Isabel Cuntapay as testator and the witnesses to the will did not affix their respective signatures on the second page thereof. The said instrument was likewise not acknowledged before a notary public by the testator and the witnesses. The CA even raised doubts as to its authenticity, noting that while Isabel Cuntapay died in 1947 and the heirs of Rosendo Lasam claimed that they discovered the same only in 1997, a date May 19, 1956 appears on the last page of the purported will. Page 31 of 34
The CA opined that if this was the date of execution, then the will was obviously spurious. On the other hand, if this was the date of its discovery, then the CA expressed bafflement as to why the heirs of Rosendo Lasam, through their mother, declared in the Partition Agreement dated December 28, 1979 that Isabel Cuntapay died intestate. It was observed by the CA that as against these infirmities in the claim of the heirs of Rosendo Lasam, Vicenta Umengan presented a Deed of Sale and a Deed of Donation to justify her possession of the subject lot. The CA noted that she has also possessed the subject property since 1955. Such prior possession, the CA held, gave Vicente Umengan the right to remain in the subject lot until a person with a better right lawfully ejects her. The heirs of Rosendo Lasam do not have such a better right. The CA stressed that the ruling on the issue of physical possession does not affect the title to the subject lot nor constitute a binding and conclusive adjudication on the merits on the issue of ownership. The parties are not precluded from filing the appropriate action to directly contest the ownership of or the title to the subject lot. The decretal portion of the assailed decision of the CA reads: WHEREFORE, premises considered, the appeal is GRANTED. The August 29, 2003 decision of the RTC, Branch 1, Tuguegarao City, Cagayan in Civil Case No. 5924 is hereby REVERSED and SET ASIDE. Private respondents complaint for unlawful detainer against petitioner is dismissed for lack of merit. SO ORDERED. 7
The heirs of Rosendo Lasam sought the reconsideration thereof but their motion was denied by the CA in its Resolution dated May 17, 2005. The heirs of Rosendo Lasam (petitioners) now come to the Court alleging that the CA committed reversible error in setting aside the decision of the RTC, which had affirmed that of the MTCC, and dismissing their complaint for unlawful detainer against respondent Vicenta Umengan. Petitioners argue that the CA erred when it held, on one hand, that the MTCC had jurisdiction over the subject matter of the complaint as the allegations therein make out a case for unlawful detainer but, on the other hand, proceeded to discuss the validity of the last will and testament of Isabel Cuntapay. Petitioners insist that respondent is holding the subject lot by mere tolerance and that they, as the heirs of Rosendo Lasam who was the rightful owner of the subject lot, have a better right thereto. It was allegedly error for the CA to declare the last will and testament of Isabel Cuntapay as null and void for its non-compliance with the formal requisites of the law on wills. The said matter cannot be resolved in an unlawful detainer case, which only involves the issue of material or physical possession of the disputed property. In any case, they maintain that the said will complied with the formal requirements of the law. It was allegedly also erroneous for the CA to consider in respondents favor the deed of sale and deed of donation covering portions of the subject lot, when these documents had already been passed upon by the RTC (Branch 3) of Tuguegarao City in Civil Case No. 4917 when it dismissed the respondents complaint for partition of the subject lot. The said order allegedly constituted res judicata and may no longer be reviewed by the CA. Petitioners emphasize that in an unlawful detainer case, the only issue to be resolved is who among the parties is entitled to the physical or material possession of the property in dispute. On this point, the MTCC held (and the same was affirmed by the RTC) that petitioners have a better right since the "merely tolerated" possession of the respondent had already expired upon the petitioners formal demand on her to vacate. In support of this claim, they point to the affidavit of Heliodoro Turingan, full brother of the respondent, attesting that the latters possession of the subject lot was by mere tolerance of Rosendo Lasam who inherited the same from Isabel Cuntapay. According to petitioners, respondents predecessors-in-interest from whom she derived her claim over the subject lot by donation and sale could not have conveyed portions thereof to her, as she had claimed, because until the present, it is still covered by OCT Nos. 196 and 1032 under the names of Pedro and Leona Cuntapay. Their respective estates have not been settled up to now. It is also the contention of petitioners that the CA should have dismissed outright respondents petition filed therewith for failure to comply with the technical requirements of the Rules of Court. Specifically, the petition was not allegedly properly verified, lacked statement of material dates and written explanation on why personal service was not made. This last contention of petitioners deserves scant consideration. The technical requirements for filing an appeal are not sacrosanct. It has been held that while the requirements for perfecting an appeal must be strictly followed as they are considered indispensable interdictions against needless delays and for orderly discharge of judicial business, the law does admit of exceptions when warranted by circumstances. 8 In the present case, the CA cannot be faulted in choosing to overlook the technical defects of respondents appeal. After all, technicality should not be Page 32 of 34
allowed to stand in the way of equitably and completely resolving the rights and obligations of the parties. 9
The Court shall now resolve the substantive issues raised by petitioners. It is well settled that in ejectment suits, the only issue for resolution is the physical or material possession of the property involved, independent of any claim of ownership by any of the party litigants. However, the issue of ownership may be provisionally ruled upon for the sole purpose of determining who is entitled to possession de facto. 10
In the present case, petitioners base their claim of right to possession on the theory that their father, Rosendo Lasam, was the sole owner of the subject lot by virtue of the newly discovered last will and testament of Isabel Cuntapay bequeathing the same to him. Respondent is allegedly holding the subject lot by mere tolerance of Rosendo Lasam and, upon the petitioners formal demand on her to vacate the same, respondents right to possess it has expired. On the other hand, respondent hinges her claim of possession on the legal conveyances made to her by the children of Isabel Cuntapay by her first husband, namely, Maria, Rufo, Sado and Abdon. These conveyances were made through the sale and donation by the said siblings of their respective portions in the subject lot to respondent as evidenced by the pertinent deeds. The CA correctly held that, as between the respective claims of petitioners and respondent, the latter has a better right to possess the subject lot. As earlier stated, petitioners rely on the last will and testament of Isabel Cuntapay that they had allegedly newly discovered. On the basis of this instrument, the MTCC and RTC ruled that petitioners have a better right to the possession of the subject lot because, following the law on succession, it should be respected and should prevail over intestate succession. However, contrary to the ruling of the MTCC and RTC, the purported last will and testament of Isabel Cuntapay could not properly be relied upon to establish petitioners right to possess the subject lot because, without having been probated, the said last will and testament could not be the source of any right. Article 838 of the Civil Code is instructive: Art. 838. No will shall pass either real or personal property unless it is proved and allowed in accordance with the Rules of Court. The testator himself may, during his lifetime, petition the court having jurisdiction for the allowance of his will. In such case, the pertinent provisions of the Rules of Court for the allowance of wills after the testators death shall govern. The Supreme Court shall formulate such additional Rules of Court as may be necessary for the allowance of wills on petition of the testator. Subject to the right of appeal, the allowance of the will, either during the lifetime of the testator or after his death, shall be conclusive as to its due execution. In Caiza v. Court of Appeals, 11 the Court ruled that: "[a] will is essentially ambulatory; at any time prior to the testators death, it may be changed or revoked; and until admitted to probate, it has no effect whatever and no right can be claimed thereunder, the law being quite explicit: No will shall pass either real or personal property unless it is proved and allowed in accordance with the Rules of Court." 12
Dr. Tolentino, an eminent authority on civil law, also explained that "[b]efore any will can have force or validity it must be probated. To probate a will means to prove before some officer or tribunal, vested by law with authority for that purpose, that the instrument offered to be proved is the last will and testament of the deceased person whose testamentary act it is alleged to be, and that it has been executed, attested and published as required by law, and that the testator was of sound and disposing mind. It is a proceeding to establish the validity of the will." 13 Moreover, the presentation of the will for probate is mandatory and is a matter of public policy. 14
Following the above truisms, the MTCC and RTC, therefore, erroneously ruled that petitioners have a better right to possess the subject lot on the basis of the purported last will and testament of Isabel Cuntapay, which, to date, has not been probated. Stated in another manner, Isabel Cuntapays last will and testament, which has not been probated, has no effect whatever and petitioners cannot claim any right thereunder. Hence, the CA correctly held that, as against petitioners claim, respondent has shown a better right of possession over the subject lot as evidenced by the deeds of conveyances executed in her favor by the children of Isabel Cuntapay by her first marriage. Contrary to the claim of petitioners, the dismissal of respondents action for partition in Civil Case No. 4917 before the RTC (Branch 3) of Tuguegarao City does not constitute res judicata on the matter of the validity of the said conveyances or even as Page 33 of 34
to the issue of the ownership of the subject lot. The order dismissing respondents action for partition in Civil Case No. 4917 stated thus: For resolution is a motion to dismiss based on defendants [referring to the petitioners herein] affirmative defenses consisting inter alia in the discovery of a last will and testament of Isabel Cuntapay, the original owner of the land in dispute. x x x It appears, however, that the last will and testament of the late Isabel Cuntapay has not yet been allowed in probate, hence, there is an imperative need to petition the court for the allowance of said will to determine once and for all the proper legitimes of legatees and devisees before any partition of the property may be judicially adjudicated. It is an elementary rule in law that testate proceedings take precedence over any other action especially where the will evinces the intent of the testator to dispose of his whole estate. With the discovery of the will of the late Isabel Cuntapay in favor of the defendants, the Court can order the filing of a petition for the probate of the same by the interested party. WHEREFORE, in light of the foregoing considerations, let the above- entitled case be as it is hereby DISMISSED. SO ORDERED. 15
For there to be res judicata, the following elements must be present: (1) finality of the former judgment; (2) the court which rendered it had jurisdiction over the subject matter and the parties; (3) it must be a judgment on the merits; and (4) there must be, between the first and second actions, identity of parties, subject matter and causes of action. 16 The third requisite, i.e., that the former judgment must be a judgment on the merits, is not present between the action for partition and the complaint a quo for unlawful detainer. As aptly observed by the CA: Our reading of the Orders (dated June 16, 1997 and October 13, 1997) in Civil Case No. 4917 reveals that the RTC, Branch 3, Tuguegarao, Cagayan, dismissed the complaint for partition because of the discovery of the alleged last will and testament of Isabel Cuntapay. The court did not declare respondents [referring to the petitioners herein] the owners of the disputed property. It simply ordered them to petition the court for the allowance of the will to determine the proper legitimes of the heirs prior to any partition. Instead of filing the appropriate petition for the probate of Isabel Cuntapays will, the respondents filed the present complaint for unlawful detainer. Viewed from this perspective, we have no doubt that the courts Orders cited by the respondents are not "judgments on the merits" that would result in the application of the principle of res judicata. Where the trial court merely refrained from proceeding with the case and granted the motion to dismiss with some clarification without conducting a trial on the merits, there is no res judicata. 17
Further, it is not quite correct for petitioners to contend that the children of Isabel Cuntapay by her first marriage could not have conveyed portions of the subject lot to respondent, as she had claimed, because until the present, it is still covered by OCT Nos. 196 and 1032 under the names of Pedro and Leona Cuntapay. To recall, it was already agreed by the heirs of the said spouses in a Partition Agreement dated December 28, 1979 that the subject lot would belong to Isabel Cuntapay. The latter died leaving her six children by both marriages as heirs. Considering that her purported last will and testament has, as yet, no force and effect for not having been probated, her six children are deemed to be co-owners of the subject lot having their respective pro indivisoshares. The conveyances made by the children of Isabel Cuntapay by her first marriage of their respective pro indiviso shares in the subject lot to respondent are valid because the law recognizes the substantive right of heirs to dispose of their ideal share in the co-heirship and/co-ownership among the heirs. The Court had expounded the principle in this wise: This Court had the occasion to rule that there is no doubt that an heir can sell whatever right, interest, or participation he may have in the property under administration. This is a matter which comes under the jurisdiction of the probate court. The right of an heir to dispose of the decedents property, even if the same is under administration, is based on the Civil Code provision stating that the possession of hereditary property is deemed transmitted to the heir without interruption and from the moment of the death of the decedent, in case the inheritance is accepted. Where there are however, two or more heirs, the whole estate of the decedent is, before its partition, owned in common by such heirs. The Civil Code, under the provisions of co-ownership, further qualifies this right. Although it is mandated that each co-owner shall have the full ownership of his part and of the fruits and benefits pertaining thereto, and thus may alienate, assign or mortgage it, and even substitute another person Page 34 of 34
in its enjoyment, the effect of the alienation or the mortgage, with respect to the co-owners, shall be limited to the portion which may be allotted to him in the division upon the termination of the co-ownership. In other words, the law does not prohibit a co-owner from selling, alienating or mortgaging his ideal share in the property held in common. As early as 1942, this Court has recognized said right of an heir to dispose of property under administration. In the case of Teves de Jakosalem vs. Rafols, et al., it was said that the sale made by an heir of his share in an inheritance, subject to the result of the pending administration, in no wise, stands in the way of such administration. The Court then relied on the provision of the old Civil Code, Article 440 and Article 399 which are still in force as Article 533 and Article 493, respectively, in the new Civil Code. The Court also cited the words of a noted civilist, Manresa: "Upon the death of a person, each of his heirs becomes the undivided owner of the whole estate left with respect to the part or portion which might be adjudicated to him, a community of ownership being thus formed among the co-owners of the estate which remains undivided." 18
Contrary to the assertion of petitioners, therefore, the conveyances made by the children of Isabel Cuntapay by her first marriage to respondent are valid insofar as their pro indiviso shares are concerned. Moreover, the CA justifiably held that these conveyances, as evidenced by the deed of donation and deed of sale presented by respondent, coupled with the fact that she has been in possession of the subject lot since 1955, establish that respondent has a better right to possess the same as against petitioners whose claim is largely based on Isabel Cuntapays last will and testament which, to date, has not been probated; hence, has no force and effect and under which no right can be claimed by petitioners. Significantly, the probative value of the other evidence relied upon by petitioners to support their claim, which was the affidavit of Heliodoro Turingan, was not passed upon by the MTCC and the RTC. Their respective decisions did not even mention the same. In conclusion, it is well to stress the CAs admonition that x x x our ruling on the issue of physical possession does not affect title to the property nor constitute a binding and conclusive adjudication on the merits on the issue of ownership. The parties are not precluded from filing the appropriate action directly contesting the ownership of or the title to the property. 19
Likewise, it is therefore in this context that the CAs finding on the validity of Isabel Cuntapays last will and testament must be considered. Such is merely a provisional ruling thereon for the sole purpose of determining who is entitled to possession de facto. WHEREFORE, premises considered, the petition is DENIED. The assailed Decision dated February 16, 2005 and the Resolution dated May 17, 2005 of the Court of Appeals in CA-G.R. SP No. 80032 are AFFIRMED. SO ORDERED.