1.Casiano vs.

CA (158 SCRA 451)

-

In this case, while animus revocandi or the intention to revoke, may be conceded, for that is a
state of mind, yet the 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
documents or papers burned by Adrianas 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 be under the express direction of Adriana.

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, 1which 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 The trial court, after hearing, found the will to have already been revoked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 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') 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.
Yap (Chairman), Melencio-Herrera, and Paras JJ., concur.
Padilla, J., took no part.

2.Molo v. Molo Digest

-

This doctrine is known as that of dependent relative revocation, and is usually applied here
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 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.
Revocation of the first will, 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

Doctrine of Dependent Relative Revocation

Facts:
1. Marcos Molo executed 2 wills, one in August 1918 and another in June 1939. The
latter will contained a revocation clause which expressly revoked the will in 1918. He
died without any forced heirs but he was survived by his wife, herein petitioner Juana.
The oppositors to the probate were his nephews and nieces.
2. Only a carbon copy of the second will was found. The widow filed a petition for the
probate of the 1939 will. It was admitted to probate but subsequently set aside on ground
that the petitioner failed to prove its due execution.
3. As a result, the petitioner filed another petition for the probate of the 1918 will this
time. Again the oppositors alleged that said will had already been revoked under the 1939
will. They contended that despite the disallowance of the 1939 will, the revocation clause
is valid and thus effectively nullified the 1918 will.

Issue: Whether or not the 1918 will can still be valid despite the revocation in the
subsequent disallowed 1939 will
RULING: Yes.The court applied the doctrine laid down in Samson v. Naval that a
subsequent will,containing a clause revoking a previous will, having been disallowed for
the reason that it was not executed in accordance with law cannot produce the effect of
annulling the previous will, inasmuch as the said revocatory clause is void.
There was no valid revocation in this case. No evidence was shown that the testator
deliberately destroyed the original 1918 will because of his knowledge of the revocatory
clause contained in the will executed in 1939.The earlier will can still be probated
under the principle of dependent relative revocation.The doctrine applies when a
testator cancels or destroys a will or executes an instrument intended to revoke a
will with the intention to make a new testamentary disposition as substitute for the
old, and the new disposition fails of effect for some reason.

3.Rodelas v. Aranza Digest

- Pursuant to Art. 811 of the Civil Code, probate of holographic will is the allowance of the
will by the court after its due execution has been proved.
- The probate may be uncontested or not. If uncontested, at least one identifying witness is
required and, if not witness is available, experts may be resorted to. If contested, at least
three identifying witnesses are required.
- However, if the holographic will has been lost/destroyed and no other copy is available,
the will cannot be probated because the best and only evidence is the handwriting of the
testator in said will. It is necessary that there be a comparison between sample handwritten
statements of the testator and the handwritten will. But, a photostatic copy or xerox copy of
the holographic will may be allowed because comparison can be made with the standard
writings of the testator.

Facts:
1. The appellant filed a petition for the probate of the holographic will of Ricardo Bonilla
in 1977. The petition was opposed by the appellees on the ground that the deceased did
not leave any will, holographic or otherwise.

2. The lower court dismissed the petition for probate and held that since the original will
was lost, a photostatic copy cannot stand in the place of the original.
Issue: Whether or not a holographic will can be proved by means of a photocopy
RULING: Yes. A photocopy of the lost or destroyed holographic will may be admitted
because the authenticity of the handwriting of the deceased can be determined by the
probate court with the standard writings of the testator.

4.Federico Azaola v. Cesario Singson

G.R. No. L-14003; August 5, 1960
- Whether the will is contested/not contested, Art. 811 of the NCC cannot be interpreted as
to require the compulsory presentation of three witnesses to indentify the handwriting of the
testator, under penalty of having the probate denied.
- The three-witness rule in Art. 811 (when contested) can be considered mandatory only in
the case of ordinary testaments, precisely because the presence of at least three witnesses at
the execution of ordinary wills is made by law essential to their validity (Art. 805). Where the
will is holographic, no witness need be present (Art. 810), and the rule requiring production of
three witnesses must be deemed merely permissive if absurd results are to be avoided.

FACTS:
When Fortunata Vda de Yance died, Francisco Azaola filed a petition for the probate of the
formers will, whereby Maria Milgaros Azaola was made the sole heir as against the nephew
of the deceased Cesario Singson. Francisco witnessed that one month before the death of the
testator, the same was handed to him and his wife.
The opposition to the probate was on the ground that (1) the execution of the will was
procured by undue and improper pressure and influence on the part of the petitioner and his
wife, and (2) that the testatrix did not seriously intend the instrument to be her last will, and
that the same was actually written either on the 5th or 6th day of August 1957and not on
November 20, 1956 as appears on the will.
The probate was denied on the ground that under Article 811 of the Civil Code, the proponent
must present three witnesses who could declare that the will and the signature are in the
writing of the testatrix, the probate being contested.
ISSUE/S:
1. WON the proponent
2. WON 811 is mandatory

was

bound

to

produce

more

than

one

witness

HELD:
1. No. Since the authenticity of the will was not being contested. But even if the genuineness
of the holographic will were contested, we are of the opinion that Article 811 of our present
Civil Code cannot be interpreted as to require the compulsory presentation of three witnesses
to identify the handwriting of the testator, under penalty of having the probate denied. Since
no witness may have been present at the execution of a holographic will, none being required
by law (Art. 810, new Civil Code), it becomes obvious that the existence of witness
possessing the requisite qualifications is a matter beyond the control of the proponent.
It may be true that the rule of this article (requiring that three witnesses be presented if the
will is contested and only one if no contest is had) was derived from the rule established for
ordinary testaments. But it cannot be ignored that the requirement can be considered
mandatory only in the case of ordinary testaments, precisely because the presence of at least
three witnesses at the execution of ordinary wills is made by law essential to their validity

(Art. 805). Where the will is holographic, no witness need be present (Art. 10), and the rule
requiring production of three witnesses must be deemed merely permissive if absurd results
are to be avoided.
Again, under Article 811, the resort to expert evidence is conditioned by the words if the
Court deem it necessary, which reveal that what the law deems essential is that the Court
should be convinced of the wills authenticity. Where the prescribed number of witnesses is
produced and the court is convinced by their testimony that the ill is genuine, it may consider
it unnecessary to call for expert evidence. On the other hand, if no competent witness is
available, or none of those produced is convincing, the Court may still, and in fact it should,
resort to handwriting experts. The duty of the Court, in fine, is to exhaust all available lines of
inquiry, for the state is as much interested as the proponent that the true intention of the
testator be carried into effect.
2. The rule of the first paragraph of Article 811 of the Civil Code is merely directory and is
not mandatory.
Considering, however, that this is the first occasion in which this Court has been called upon
to construe the import of said article, the interest of justice would be better served, in our
opinion, by giving the parties ample opportunity to adduce additional evidence, including
expert witnesses, should the Court deem them necessary.

5.CODOY V. CALUGAY (312 SCRA 333)

- Art. 811 is mandatory. The word shall in a statute commonly denotes an imperative
obligation and is inconsistent with the idea of discretion and that the presumption is that the
word shall, when used in a statute is mandatory.

FACTS:
On 6 April 1990, Evangeline Calugay, Josephine Salcedo and Eufemia Patigas,
devisees and legatees of the holographic will of the deceased Matilde Seo Vda. de
Ramonal, filed a petition for probate of the said will. They attested to the
genuineness and due execution of the will on 30 August 1978.
Eugenio Ramonal Codoy and Manuel Ramonal filed their opposition claiming that
the will was a forgery and that the same is even illegible. They raised doubts as
regards the repeated appearing on the will after every disposition, calling the same
out of the ordinary. If the will was in the handwriting of the deceased, it was
improperly procured.
Evangeline Calugay, etc. presented 6 witnesses and various documentary evidence.
The first witness was the clerk of court of the probate court who produced and
identified the records of the case bearing the signature of the deceased.

The second witness was election registrar who was made to produce and identify the
voters affidavit, but failed to as the same was already destroyed and no longer
available.
The third, the deceaseds niece, claimed that she had acquired familiarity with the
deceaseds signature and handwriting as she used to accompany her in collecting
rentals from her various tenants of commercial buildings and the deceased always
issued receipts. The niece also testified that the deceased left a holographic will
entirely written, dated and signed by said deceased.
The fourth witness was a former lawyer for the deceased in the intestate proceedings
of her late husband, who said that the signature on the will was similar to that of the
deceased but that he can not be sure.
The fifth was an employee of the DENR who testified that she was familiar with the
signature of the deceased which appeared in the latters application for pasture
permit. The fifth, respondent Evangeline Calugay, claimed that she had lived with the
deceased since birth where she had become familiar with her signature and that the
one appearing on the will was genuine.
Codoy and Ramonals demurrer to evidence was granted by the lower court. It was
reversed on appeal with the Court of Appeals which granted the probate.
ISSUE:
1. W/N Article 811 of the Civil Code, providing that at least three witnesses explicitly
declare the signature in a contested will as the genuine signature of the testator, is
mandatory or directory.
2. Whether or not the witnesses sufficiently establish the authenticity and due
execution of the deceaseds holographic will.
HELD:
1. YES. The word shall connotes a mandatory order, an imperative obligation and is
inconsistent with the idea of discretion and that the presumption is that the word
shall, when used in a statute, is mandatory.
In the case at bar, the goal to be achieved by the law, is to give effect to the wishes of
the deceased and the evil to be prevented is the possibility that unscrupulous

individuals who for their benefit will employ means to defeat the wishes of the
testator.
The paramount consideration in the present petition is to determine the true intent
of the deceased.
2. NO. We cannot be certain that the holographic will was in the handwriting of the
deceased.
The clerk of court was not presented to declare explicitly that the signature appearing
in the holographic will was that of the deceased.
The election registrar was not able to produce the voters affidavit for verification as
it was no longer available.
The deceaseds niece saw pre-prepared receipts and letters of the deceased and did
not declare that she saw the deceased sign a document or write a note.
The will was not found in the personal belongings of the deceased but was in the
possession of the said niece, who kept the fact about the will from the children of the
deceased, putting in issue her motive.
Evangeline Calugay never declared that she saw the decreased write a note or sign a
document.
The former lawyer of the deceased expressed doubts as to the authenticity of the
signature in the holographic will.
(As it appears in the foregoing, the three-witness requirement was not complied
with.)
A visual examination of the holographic will convinces that the strokes are different
when compared with other documents written by the testator.
The records are remanded to allow the oppositors to adduce evidence in support of
their opposition.
The object of solemnities surrounding the execution of wills is to close the door
against bad faith and fraud, to avoid substitution of wills and testaments and to
guaranty their truth and authenticity. Therefore, the laws on this subject should be
interpreted in such a way as to attain these primordial ends. But, on the other hand,

also one must not lose sight of the fact that it is not the object of the law to restrain
and curtail the exercise the right to make a will.
However, we cannot eliminate the possibility of a false document being adjudged as
the will of the testator, which is why if the holographic will is contested, the law
requires three witnesses to declare that the will was in the handwriting of the
deceased.
Article 811, paragraph 1. provides: In the probate of a holographic will, it shall be
necessary that at least one witness who knows the handwriting and signature of the
testator explicitly declare that the will and the signature are in the handwriting of the
testator. If the will is contested, at least three of such witnesses shall be required.
The word shall connotes a mandatory order, an imperative obligation and is
inconsistent with the idea of discretion and that the presumption is that the word
shall, when used in a statute, is mandatory.
6.
129 SCRA 754

Roberts

v.

Leonidas

- The probate of the will is mandatory. It is anomalous that the estate of a

person who died testate should be settled in an intestate proceeding. Therefore,
the intestate case should be consolidated with the testate proceeding and the
judge assigned to the testate proceeding should continue hearing two case.

FACTS:
Grimm, an American resident of Manila, died in 1977. He was survived by his second
wife (Maxine), their two children (Pete and Linda), and by his two children by a first
marriage (Juanita and Ethel) which ended by divorce.
Grimm executed two wills in San Francisco, California on January 23, 1959. One will
disposed of his Philippine estate described as conjugal property of himself and his
second wife. The second will disposed of his estate outside the Philippines. The two
wills and a codicil were presented for probate in Utah by Maxine on March 1978.
Maxine admitted that she received notice of the intestate petition filed in Manila by
Ethel in January 1978. The Utah Court admitted the two wills and codicil to probate
on April 1978 and was issued upon consideration of the stipulation between the
attorneys for Maxine and Ethel.
Also in April 1978, Maxine and Ethel, with knowledge of the intestate proceeding in
Manila, entered into a compromise agreement in Utah regarding the estate.

As mentioned, in January 1978, an intestate proceeding was instituted by Ethel. On

March 1978, Maxine filed an opposition and motion to dismiss the intestate
proceeding on the ground of pendency of the Utah probate proceedings. She
submitted to the court a copy of Grimms will. However, pursuant to the compromise
agreement, Maxine withdrew the opposition and the motion to dismiss. The court
ignored the will found in the record.The estate was partitioned.
In 1980, Maxine filed a petition praying for the probate of the two wills (already
probated in Utah), that the partition approved by the intestate court be set aside and
the letters of administration revoked, that Maxine be appointed executrix and Ethel
be ordered to account for the properties received by them and return the same to
Maxine. Maxine alleged that they were defrauded due to the machinations of Ethel,
that the compromise agreement was illegal and the intestate proceeding was void
because Grimm died testate so partition was contrary to the decedents wills.
Ethel filed a motion to dismiss the petition which was denied by Judge Leonidas for
lack of merit.
ISSUE:
Whether the judge committed grave abuse of discretion amounting to lack of
jurisdiction in denying Ethels motion to dismiss.
HELD:
We hold that respondent judge did not commit any grave abuse of discretion,
amounting to lack of jurisdiction, in denying Ethels motion to dismiss.
A testate proceeding is proper in this case because Grimm died with two wills and
no will shall pass either real or personal property unless it is proved and allowed
(Art. 838, Civil Code; sec. 1, Rule 75, Rules of Court).
The probate of the will is mandatory. It is anomalous that the estate of a person who
died testate should be settled in an intestate proceeding. Therefore, the intestate case
should be consolidated with the testate proceeding and the judge assigned to the
testate proceeding should continue hearing the two cases.

7.Nepomuceno v. Court of Appeals

- Citing Nuguid v. Nuguid: 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, the trial court acted correctly in passing upon the wills intrinsic
validity even before its formal validity had been established. Thex` 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.

Facts:
1. Martin Hugo died on 1974 and he left a will wherein he instituted Sofia Nepomuceno
as the sole and only executor. It was also provided therein that he was married to Rufina
Gomez with whom he had 3 children.
2. Petitioner (Sofia) filed for the probate of the will but the legal wife and her children
opposed alleging that the will was procured through improper and undue influence and
that there was an admission of concubinage with the petitioner.
3. The lower court denied the probate on the ground of the testator's admission of
cohabitation, hence making the will invalid on its face. The Court of Appeals reversed
and held that the will is valid except the devise in favor of the petitioner which is null and
void in violation of Art. 739 and 1028.
Issue: Whether or not the court can pass on the intrinsic validity of a will
RULING: Yes, as an exception. But the general rule is that the court's area of inquiry is
limited to the an examination and resolution of the extrinsic validity of the will. This
general rule is however not inflexible and absolute. Given exceptional circumstances, the
probate court is not powerless to do what the situation constrains it to do and may pass
upon certain provisions of the will. The will itself admitted on its face the relationship
between the testator and the petitioner.
The will was validly executed in accordance with law but the court didn't find it to serve a
practical purpose to remand the nullified provision in a separate action for that purpose
only since in the probate of a will, the court does not ordinarily look into the intrinsic
validity of its provisions.
The devisee is invalid by virtue of Art. 739 which voids a donation made between persons
guilty of adultery/concubinage at the time of the donations. Under Art, 1028 it is also
prohibited.

8. Nuguid vs Nuguid
The declaration of a universal heir and the preterition of other heirs shall result in the nullification of
the institution of heirs. However, if the will does not contain any legacies or devises, then the will shall
be a complete nullity as well.

Facts: Rosario died without descendants, legitimate or illegitimate. Surviving her

were her legitimate parents Felix and Paz, and 6 brothers and sisters.
Remedios, one of the sister filed in court a holographic will allegedly executed by
Rosario instituting the former as the sole, universal heir of all her properties. She
prayed that said will be admitted to probate and that letter of administration be
issued to her.
Felix and Paz opposed to the probate of the will on the ground that by the institution
of Remedios as universal heir of the deceased, oppositors who are compulsory
heirs in the direct ascending line were illegally preterited and that in consequence,
the institution is void.
Article 854 provides that preterition of one, some or all of the compulsory heirs in
the direct line, whether living at the time of the execution of the will or born after the
death of the testator, shall annul the institution of heir.
Petitioners contention is that the present is a case of ineffective disinheritance rather
than one of preterition drawing the conclusion that Article 854 does not apply in the
case at bar.
Issue: WON the institution of one of the sister of the deceased as the sole, universal
heir preterited the compulsory heirs.
Held: Yes. Where the deceased left no descendants, legitimate or illegitimate, but
she left forced heirs in the direct ascending line her parents, and her holographic
will does not explicitly disinherit them but simply omits their names altogether, the
case is one of preterition of the parents, not a case of ineffective disinheritance.
Preterition consists in the omission in the testators will of the forced heirs or
anyone of them, either because they are not mentioned therein, or, through
mentioned, they are neither instituted as heirs nor are expressly disinherited.
Disinheritance, in turn, is a testamentary disposition depriving any compulsory heir
of his share in the legitime for a cause authorized by law.

Where the one sentence will institutes the petitioner as the sole, universal heir and
preterits the parents of the testatrix, and it contains no specific legacies or bequests,
such universal institution of petitioner, by itself, is void. And intestate succession
ensues.