GAGO v MAMUYAC

49 Phil 902
JOHNSON; Jan 29, 1927
FACTS
- Miguel Mamuyac executed a last will and testament on July 27, 1918 (first will). On
Jan, 1922, Francisco Gago presented a petition in the CFI of La Union for the
probation of that will. This was opposed by Cornelio Mamuyac, Ambrosio Lariosa,
Feliciana Bauzon, and Catalina Mamuyac. The petition for probation was denied on
the ground that the deceased had executed a new will and testament on April 16,
1919 (second will). Miguel Mamuyac died on Jan 2, 1922.
- The present petition, filed on Feb 21, 1925, is intended to secure the probation of
the second will. 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.
- The CFI denied the probation of the second will, upon the ground that the same
had been cancelled and revoked in the year 1920.
- Gago 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by the law; that the same had been revoked and cancelled in 1920 before his death;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.
ISSUE
WON the CFI erred in not granting the probation of Miguel Mamuyacs second will
HELD
NO
- As to the cancellation of the will, 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. The fact that such cancellation or revocation has taken place must either
remain unproved or 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 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)

MALOTO v CA
153 SCRA 451
SARMIENTO; February 29, 1988
FACTS
- Oct.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 an intestate
proceeding for the settlement of their aunt's estate. However, while the case was
still in progress, the parties 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.
- 3 years later, Atty. Sulpicio Palma, a former associate of Adriana's counsel
(Att.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 CFI of Iloilo.
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, 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. We dismissed that petition

and advised that a separate proceeding for the probate of the alleged will would be
the appropriate vehicle.
- Significantly, the appellate court while finding as inconclusive the matter on WON
the document or papers allegedly burned by the househelp of Adriana, upon
instructions of the testatrix, was indeed the will, contradicted itself and found that the
will had been revoked. The CA 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.

ISSUES
1. WON the will was revoked by Adriana.
2. WON the case is barred by res judicata.
HELD
1. NO.
Ratio The provisions of the NCC pertinent to the issue can be found in Article 830. 1
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.

1 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.

Reasoning 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 was not satisfactorily established
to be a will at all, much less the will of Adriana. 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 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, 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
and Eladio, both illiterates, were unequivocably positive that the document burned
was indeed Adriana's will.
2. NO.
The respondents claim that this bar was brought about by the petitioners' failure to
appeal timely from the order of the trial court in the intestate proceeding denying
their (petitioners') motion to reopen the case, and their prayer to annul the previous
proceedings therein and to allow the last will and testament of the late Adriana.
The doctrine of res adjudicata finds no application in the present controversy. We do
not find here the presence of all the requisites of res judicata.
There is yet, strictly speaking, no final judgment rendered insofar as the probate of
Adriana Maloto's will is concerned. Neither is it a judgment on the merits of the
action for probate. There is likewise no Identity between the cause of action in
intestate proceeding and that in an action for probate.

MOLO v MOLO

90 PHIL 37
NATURE
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.

FACTS
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, and another executed on June 20,
1939. THE LATTER WILL CONTAINS A CLAUSE WHICH EXPRESSLY REVOKES
THE WILL EXECUTED IN 1918.
On February 7, 1941, Juana Juan Vda. de Molo filed in the Court of First Instance of
Rizal a petition, 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, in 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.
ISSUE

WON the declaration of nullity of a subsequent will by the probate court (the 1939
will in this case, which purports to revoke the 1918 will) would have the effect of
resurrecting the prior will.
HELD
YES
This is the DOCTRINE OF DEPENDENT RELATIVE REVOCATION. The failure of
the new testamentary disposition, upon whose validity the revocation depends, is
equivalent to the non-fulfillment of a suspensive condition, and HENCE PREVENTS
THE REVOCATION OF THE ORIGINAL WILL. But a mere intent to make at some
time a will in 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."
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 (Samson vs. Naval, 41 Phil., 838)..
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
OCCASIONS AND INSTITUTED HIS WIFE AS HIS UNIVERSAL HEIR. THERE
CAN THEREFORE BE NO MISTAKE AS TO HIS INTENTION OF DYING
TESTATE.
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 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 (1935)
229 Mo. App., 632, 78 S. W. (2d), 498."

These treatise 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 abandoning it as now suggested
by counsel for the oppositors.
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 SOME
REASON. THE DOCTRINE IS NOT 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.:. 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 the 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 the new
testamentary disposition, upon whose validity the revocation depends, is equivalent
to the non-fulfillment of a suspensive condition, and hence prevents the revocation
of the original will. But a mere intent to make at some time a will in 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. 233.)

Ignacia Diaz vs. Ana De Leon

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.

Facts:

G.R. No. 17714, May 31, 1992

Jesus De Leon, the testator, executed 2 wills, shortly after

the execution of the first will, he asked it to be returned to
him and ordered his servant to tear the document. The first
will was destroyed in the presence of a nurse. After some
time, Dr. Cornelio Mapa asked the testator about the will,
the testator said that it had been destroyed.
The petitioner argued that there was no revocation of the
first will, while the contestant argued that the testator
revoked his will by destroying it, and by executing another
will expressly revoking the first will.
Issue:
Is the revocation of the first will made by the testator valid?
Held:
Yes. The Supreme Court ruled that the revocation made by
the testator was valid. Although the second will was found
to not have satisfied the requisites in order to constitute a
revocation, the destruction of a will animo revocandi
constitutes, in itself, a sufficient revocation (Sec.623, Code
of Civil Procedure). The testators intention of revoking the
will is also manifest from the fact that the testator was
anxious to withdraw or change the provisions he had made
in his first will.

In the matter of the will of Donata Manahan.

TIBURCIA MANAHAN, petitioner-appellee, vs.
ENGRACIA MANAHAN
G.R. No. 38050

September 22, 1933

Facts:
On August 29, 1930, Tiburcia Manahan instituted a
special proceeding, 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 May
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.

Issue:
(1) Whether 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) Whether the court, in its order of September 22,
1930, did not really probate the will but limited itself
to decreeing its authentication?; and
(3) Whether 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?
Held:
1. 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.
2. 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.
3. 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.
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 facie evidence
of the death of the testator or intestate; . . . .
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.

Gallanosa as executor. Judge Rivera specifically found that the testator executed
his last will "enjoying good health and mental faculties and not acting under threat,
fraud or undue influence " [1939 DECREE OF PROBATE]. The testator's legal
heirs did not appeal from the decree of probate (1939) and from the order of
partition and distribution (1941) of 61 parcels of land by Gallanosa spouses and
Fortajada.

GALLANOSA v ARCANGEL
83 SCRA 676
AQUINO; June 21, 1978
NATURE
Special civil action of certiorari
FACTS
- Florentino Hitosis executed a will in the Bicol dialect on June 19, 1938 when he
was 81 yo. He died on May 26, 1939 at Irosin, Sorsogon. A childless widower, he
was survived by his brother, Leon. On June 24, 1939 a petition for the probate of his
will was filed in CFI Sorsogon. The notice of hearing was duly published in that will.
Florentino bequeathed his share in the conjugal estate to his second wife, Tecla
Dollentas, and, should Tecla predecease him, as was the case, his 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 to his
protege Adolfo Fortajada, a minor. Opposition to the probate of the will was
registered by the testator's legal heirs, namely, Leon and his nephews and nieces.
After a hearing, wherein the oppositors did not present any evidence, Judge Rivera,
in his decision of October 27, 1939, admitted the will to probate and appointed

- On February 20, 1952, Leon Hitosis and nephews and nieces instituted an action
in CFI Sorsogon against Pedro Gallanosa for the recovery of the said 61 parcels of
land. They alleged that they had been in continuous possession of those lands en
concepto de dueo and that Gallanosa entered those lands in 1951 and asserted
ownership over the lands. They prayed that they be declared the owners of the
lands, be restored to the possession thereof and also claimed damages (Civil Case
No. 696). [1952 COMPAINT]
- CFI: Dismissed their opposition and Ordered the probate of his will because the
oppositors did not file any appeal within the period fixed by law, despite the fact that
they were duly thereof, so that the said decision had become final and it now
constitutes a bar to any action that the plaintiffs may institute for the purpose of
seeking a redetermination of their right to inherit the properties of the late Florentino
Hitosis. In other words, the said decision of this Court in 1939, which they
intervened as parties oppositors, constitutes a final judicial determination of the
issue that they have no legal rights to succeed to any of the properties of the late
Florentino Hitosis; consequently, their present claim to the ownership and
possession of the 61 parcels of land in question is without any legal merit or basis.
[1952 DISMISSAL OF COMPLAINT]
- On September 21, 1967, or fifteen years after the dismissal of Civil Case No. 696
and twenty-eight years after the probate of the will, another action in the same court
against the Gallanosa spouses and Adolfo Fortajada for the "annulment" of the will
of Florentino Hitosis and for the recovery of the same 61 parcels of land. They
prayed for the appointment of a receiver. [1967 COMPLAINT]
ISSUE
WON allowance of will (prayed for in 1967 complaint) is valid given the 1939 decree
of probate and the 1952 order of dismissal in Civil Case No. 696
HELD

NO
Ratio 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).
Reasoning
- 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 and
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 and 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).

DE LA CERNA v POTOT
12 SCRA 576
REYES

-Austria vs. Ventenilla > a "petition for annulment of a will" was not entertained
after the decree of probate had become final.
"Wills; Probate; Alleged 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 and 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 practiced upon the
deceased in the making of his will.
"Held: That under section 625 of Act No. 190, the only time given parties who are
displeased with the order admitting to probate a will, for an appeal is the time
given for appeals in ordinary actions; but without deciding whether or not an order
admitting a will to probate will be opened for fraud, after the time allowed for an
appeal has expired, when no appeal is taken from an order probating a will, the
heirs can not, in subsequent litigation in the same proceedings, raise questions
relating to its due execution. The probate of a will is conclusive as to its due
execution and as to the testamentary capacity of the testator." (See Austria vs.
Heirs of Ventenilla, 99 Phil. 1069).

NATURE
Appeal from the CA decision reversing Cebu CFI
FACTS
- Spouses Bernabe de la Cerna and Gervasia Rebaca executed a joint last will and
testament in their local dialect willing two parcels of land together with all the
improvements thereon to their niece, Manuela Rebaca. The couple were childless.
As a condition on the joint will, the fruits of the two parcels shall be enjoyed by either
the testators while he or she is yet living.
- Upon the death of Bernabe de la Cerna in 1939 the will was submitted for probate
before the CFI of Cebu which declared said will to be legal and valid. When
Gervasia died in 1952, another petition for the probate of the same will was
submitted before the same Cebu CFI. This time, however, the testament ws
declared null and void for being executed contrary to the prohibition of joint wills in
Article 669 of the Old Civil Code and Article 818 of the New Civil Code.
- On appeal, the CA reversed the ruling of the Cebu CFI on the ground that the
decree of probate in 1939 was conclusive on the due execution of the testament.

The CA 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'."

Gervasia who died much later than her husband. Hence, in so far as the estate of
the wife is concerned, the joint will must be reesamined and adjudicated de novo
since the joint will is considered a separate will of each testator. Thus regarded, the
holding of the Court of First Instance of Cebu that the joint will is one prohibited by
law was correct as to the participation of the deceased Gervasia Rebaca in the
properties in question, for the reasons extensively discussed in our decision in
Bilbao vs. Bilbao, 87 Phil. 144, that explained the previous holding in Macrohon vs.
Saavedra, 51 Phil., 267. Therefore, the undivided interest of Gervasia Rebaca
should pass upon her death to her heirs intestate, and not exclusively to the
testamentary heir, unless some other valid will in her favor is shown to exist,
or unless she be the only heir intestate of said Gervasia.

NEPOMUCENO v CA (GOMEZ)
139 SCRA 206
October 9, 1985; GUTIERREZ

- Hence this appeal by the heirs intestate of the deceased husband, Bernabe de la
Cerna
ISSUE/S
1. WON the joint will is legal and valid in so far as Bernabe de la Cerna is concerned

NATURE
Petition for certiorari

2. WON the joint will is legal and valid in so far as Gervasia Rebaca is concerned
HELD
1. Yes. The SC ruled that the final decree of probate entered in 1939 by the Cebu
CFI has conclusive effect as to the last will and testament of Bernabe de la Cerna
despite the fact that the Civil Code already decredd the invalidity of joint wills,
whether in favor of the joint testators, reciprocally, or in favor of a third party. The
error committed by the probate court was an error of law that should have been
corrected by appeal. 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
Estate 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 sit
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). The dismissal of the action
by the heirs and successors of De la Cerna was correct.
2. No. The present subject matter of the probate is the last will and testament of

FACTS
Martin Jugo died with last Will and Testament with all the formalities required by
law. 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 petitioner filed a petition for the probate of the last Will and Testament of the
deceased Martin Jugo in the CFI Rizal and asked for the issuance to her of letters
testamentary.
The legal wife of the testator, Rufina Gomez and her children filed an opposition.
The lower court denied the probate of the Will on the ground that as the testator
admitted in his Will to cohabiting with the petitioner from December 1952 until his

death on July 16, 1974, the Will's admission to probate will be an idle exercise
because on the face of the Will, the invalidity of its intrinsic provisions is evident.
The case reached the CA and the respondent court set aside the decision of the CFI
of Rizal denying the probate of the will. The CA declared the Will to be valid except
that the devise in favor of the petitioner is null and void pursuant to Article 739 2 in
relation with Article 10283.

person with whom he had been living in concubinage. (Note: The defense
of Nepomuceno that she was not aware that Jugo was married was not
believed by the court.)

ISSUE
WON 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.
HELD
NO. 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, 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.
Reasoning:
a. In Nuguid v. Nuguid, 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.
b. 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

2 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.

3 "The prohibitions mentioned in Article 739, concerning donations inter vivos shall apply to testamentary provisions."

GUEVARA v GUEVARA
74 Phil 479
OZAETA; December 29, 1943
FACTS
-In 1931, Victorino L. Guevara executed a will with all the formalities of the law,
wherein he made bequests to his legitimate son, natural daughter and stepchildren
and wife of 2nd marriage.
-On July 12, 1933, Victorino L. Guevara executed a deed of sale in favor of Ernesto
M. Guevara conveying to him the southern half of a large parcel of land in
consideration of the sum of P1 and other valuable considerations.On September 27,
1933 a final decree of registration was issued in favor of Ernesto M. Guevara over
the whole parcel of land described in the deed of sale above referred to. The
registration proceeding had been commenced by Victorino L. Guevara and Ernesto
M. Guevara as applicants, with Rosario, among others, as oppositor; but before the
trial of the case Victorino L. Guevara withdrew as applicant and Rosario Guevara
and her co-oppositors also withdrew their opposition, thereby facilitating the
issuance of the title in the name of Ernesto M. Guevara alone.
On September 27, 1933, Victorino L. Guevara died. His last will and testament,
however, was never presented to the court for probate, nor has any administration
proceeding ever been instituted for the settlement of his estate. Whether the various
legatees mentioned in the will have received their respective legacies or have even
been given due notice of the execution of said will and of the dispositions therein
made in their favor, does not affirmatively appear from the record of this case. Ever

since the death of Victorino L. Guevara, his only legitimate son Ernesto M. Guevara
appears to have possessed the land adjudicated to him in the registration
proceeding and to have disposed of various portions thereof for the purpose of
paying the debts left by his father.
-Rosario Guevara, who had her father's last will and testament in her custody, did
nothing judicially to invoke the testamentary dispositions made therein in her favor,
whereby the testator acknowledged her as his natural daughter and, aside from
certain legacies and bequests, devised to her a portion of 21.6171 hectares of the
large parcel of land described in the will. But a little over four years after the
testator's demise, she commenced the present action against Ernesto M. Guevara
alone for the purpose hereinbefore indicated; and it was only during the trial of this
case that she presented the will to the court, not for the purpose of having it
probated but only to prove that the deceased Victorino L. Guevara had
acknowledged her as his natural daughter. Upon that proof of acknowledgment she
claimed her share of the inheritance from him, but on the theory or assumption that
he died intestate, because the will had not been probated, for which reason, she
asserted, the betterment therein made by the testator in favor of his legitimate son
Ernesto M. Guevara should be disregarded. Both the trial court and the Court of
Appeals sustained that theory.
ISSUE
WON the procedure adopted by the Rosario Guevara is sanctioned by law
HELD
No. We cannot sanction the procedure adopted by the respondent Rosario
Guevara, it being in violation of procedural law and an attempt to circumvent and
disregard the last will and testament of the decedent. The Code of Civil Procedure,
which was in force up to the time this case was decided by the trial court, contains
the following pertinent provisions:
"Sec. 625.Allowance Necessary, and Conclusive as to Execution. No will shall
pass either the real or personal estate, unless it is proved and allowed in the Court
of First Instance, or by appeal to the Supreme Court; and the allowance by the court
of a will of real and personal estate shall be conclusive as to its due execution.

"Sec. 626.Custodian of Will to Deliver. The person who has the custody of a will
shall, within thirty days after he knows of the death of the testator, deliver the will
into the court which has jurisdiction, or to the executor named in the will.
"Sec. 627.Executor to Present Will and Accept or Refuse Trust. A person named
as executor in a will, shall within thirty days after he knows of the death of the
testator, or within thirty days after he knows that he is named executor, if he
obtained such knowledge after knowing of the death of the testator, present such
will to the court which has jurisdiction, unless the will has been otherwise returned to
said court, and shall, within such period, signify to the court his acceptance of the
trust, or make known in writing his refusal to accept it.
"Sec. 628.Penalty. A person who neglects any of the duties required in the two
preceding sections, unless he gives a satisfactory excuse to the court, shall be
subject to a fine not exceeding one thousand dollars.
"Sec. 629.Person Retaining Will may be Committed. If a person having custody
of a will after the death of the testator neglects without reasonable cause to deliver
the same to the court having jurisdiction, after notice by the court so to do, he may
be committed to the prison of the province by a warrant issued by the court, and
there kept in close confinement until he delivers the will."
-The proceeding for the probate of a will is one in rem, with notice by publication to
the whole world and with personal notice to each of the known heirs, legatees, and
devisees of the testator. Although not contested (section 5, Rule 77), the due
execution of the will and the fact that the testator at the time of its execution was of
sound and disposing mind and not acting under duress, menace, and undue
influence or fraud, must be proved to the satisfaction of the court, and only then may
the will be legalized and given effect by means of a certificate of its allowance,
signed by the judge and attested by the seal of the court; and when the will devises
real property, attested copies thereof and of the certificate of allowance must be
recorded in the register of deeds of the province in which the land lies. (Section 12,
Rule 77, and section 624, C. C. P.)
-It will readily be seen from the above provisions of the law that the presentation of a
will to the court for probate is mandatory and its allowance by the court is essential
and indispensable to its efficacy. To assure and compel the probate of a will, the law
punishes a person who neglects his duty to present it to the court with a fine not

exceeding P2,000, and if he should persist in not presenting it, he may be

committed to prison and kept there until he delivers the will.
-We hold that 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.

HEIRS OF ROSENDO LASAM, Represented by Rogelio

Lasam and Atty. Edward P. Llonillo, petitioners, vs.
VICENTA UMENGAN, respondent.
G.R. No. 168156

December 6, 2006

spouses Pedro Cuntapay and Leona Bunagan Owner of the

Lot:
1st marriage: Isabel Cuntapay + Domingo Turingan=
i.
ii.
iii.
iv.

Abdon: Vicenta Umengan is the daughter of

Abdon Turingan
Sado (deceased),
Rufo and
Maria

2nd marriage: Isabel Cuntapay + Mariano Lasam=

i.
ii.

Trinidad and
Rosendo: His heirs filed a complaint for
unlawful detairner

Facts:
Sometime in January, the heirs of Rosendo Lasam filed with
the MTCC a complaint for unlawful detainer against Vicenta
Umengan, who was then occupying the subject lot.
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).

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.
In her (Vicenta Umengan) Answer with Counterclaim, 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 indiviso share 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, allegedly
evidenced by the Deed of Sale.
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.
According to Vicenta Umengan, the children of Isabel
Cuntapay by her second husband own only 2/6 portion of
the subject lot. She thus prayed that the complaint be
dismissed and that the heirs of Rosendo Lasam be ordered
to pay her damages.
MTCC: The MTCC rendered judgment in favor of the heirs of
Rosendo Lasam and directed the ejectment of Vicenta
Umengan.
The MTCC gave credence to the newly discovered
last will and testament.
RTC: On appeal, the RTC affirmed in toto the decision of the
MTCC.
CA: The CA reversed and set aside the decision of the RTC.

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.
The CA found that:
1. The pages of the purported last will and testament
were not numbered in accordance with the law.
2. Neither did it contain the requisite attestation
clause.
3. Isabel Cuntapay as testator and the witnesses to the
will did not affix their respective signatures on the
second page thereof.
4. The said instrument was likewise not acknowledged
before a notary public by the testator and the
witnesses.
5. 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.
The heirs of Rosendo Lasam sought the reconsideration
thereof but their motion was denied by the CA.
Issue: Whether an Unprobated Will pass any rights
following the law on succession?
Held:
In upholding the CAs ruling the SC.
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.
The Last Will and Testament cannot be relied upon to
establish the right of possession 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.
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 that the subject lot would belong to Isabel
Cuntapay.
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.
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.