Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION
G.R. No. L-37453 May 25, 1979
RIZALINA GABRIEL GONZALES, petitioner,
vs.
HONORABLE COURT OF APPEALS and LUTGARDA SANTIAGO, respondents.
Francisco D. Rilloraza, Jr. for petitioners.
Angel A. Sison for private respondent.

GUERRERO, J.:
This is a petition for review of the decision of the Court of Appeals, First
Division, 1 promulgated on May 4, 1973 in CA G.R. No. 36523-R which reversed the decision of the
Court of First Instance of Rizal dated December 15, 1964 and allowed the probate of the last will and
testament of the deceased Isabel Gabriel. *

It appears that on June 24, 1961, herein private respondent Lutgarda Santiago filed a
petition with the Court of First Instance of Rizal docketed as Special Proceedings No. 3617,
for the probate of a will alleged to have been executed by the deceased Isabel Gabriel and
designating therein petitioner as the principal beneficiary and executrix.
There is no dispute in the records that the late Isabel Andres Gabriel died as a widow and
without issue in the municipality of Navotas, province of Rizal her place of residence, on
June 7, 1961 at the age of eighty-five (85), having been born in 1876. It is likewise not
controverted that herein private respondent Lutgarda Santiago and petitioner Rizalina
Gabriel Gonzales are nieces of the deceased, and that private respondent, with her
husband and children, lived with the deceased at the latters residence prior an- d up to the
time of her death.
The will submitted for probate, Exhibit "F", which is typewritten and in Tagalog, appears to
have been executed in Manila on the 15th day of April, 1961, or barely two (2) months prior
to the death of Isabel Gabriel. It consists of five (5) pages, including the pages whereon the
attestation clause and the acknowledgment of the notary public were written. The
signatures of the deceased Isabel Gabriel appear at the end of the will on page four and at

the left margin of all the pages. The attestation clause, which is found on page four, reads
as follows:
PATUNAY NG MGA SAKSI
Kaming mga nakalagdang mga saksi o testigo na ang aming mga tinitirahan
ay nakasulat sa gawing kanan at kahilira ng aming mga pangalan sa ibaba
nito, ay pagpapatutuo na ipinakilala ipinaalam at ipinahayag sa amin ni Isabel
Gabriel na ang kasulatang ito na binubuo ng Limang Dahon (Five Pages) pati
na ang dahong ito, na siya niyang TESTAMENTO AT HULING HABILIN,
ngayong ika 15 ng Abril, 1961, ay nilagdaan ng nasabing testadora na si
Isabel Gabriel ang nasabing testamento sa ibaba o ilalim ng kasulatan na
nasa ika apat na dahon (page four) at nasa itaas ng patunay naming ito, at sa
kaliwang panig ng lahat at bawat dahon (and on the left hand margin of each
and every page), sa harap ng lahat at bawat isa sa amin, at kami namang
mga saksi ay lumagda sa harap ng nasabing testadora, at sa harap ng lahat
at bawat isa sa amin, sa ilalim ng patunay ng mga saksi at sa kaliwang panig
ng lahat at bawa't dahon ng testamentong ito.
At the bottom thereof, under the heading "Pangalan", are written the signatures of Matilde
D. Orobia, Celso D. Gimpaya and Maria R. Gimpaya, and opposite the same, under the
heading "Tirahan", are their respective places of residence, 961 Highway 54, Philamlife, for
Miss Orobia, and 12 Dagala St., Navotas, Rizal, for the two Gimpayas. Their signatures
also appear on the left margin of all the other pages. The WW is paged by typewritten
words as follows: "Unang Dahon" and underneath "(Page One)", "Ikalawang Dahon" and
underneath "(Page Two)", etc., appearing at the top of each page.
The will itself provides that the testatrix desired to be buried in the Catholic Cemetery of
Navotas, Rizal in accordance with the rites of the Roman Catholic Church, all expenses to
be paid from her estate; that all her obligations, if any, be paid; that legacies in specified
amounts be given to her sister, Praxides Gabriel Vda. de Santiago, her brother Santiago
Gabriel, and her nephews and nieces, Benjamin, Salud, Rizalina (herein petitioner),
Victoria, Ester, Andres, all surnamed Gabriel, and Evangeline, Rudyardo Rosa, Andrea,
Marcial, Numancia, Verena an surnamed Santiago. To herein private respondent Lutgarda
Santiago, who was described in the will by the testatrix as "aking mahal na pamangkin na
aking pinalaki, inalagaan at minahal na katulad ng isang tunay na anak" and named as
universal heir and executor, were bequeathed all properties and estate, real or personal
already acquired, or to be acquired, in her testatrix name, after satisfying the expenses,
debts and legacies as aforementioned.
The petition was opposed by Rizalina Gabriel Gonzales, herein petitioner, assailing the
document purporting to be the will of the deceased on the following grounds:

1. that the same is not genuine; and in the alternative

2. that the same was not executed and attested as required by law;
3. that, at the time of the alleged execution of the purported wilt the decedent
lacked testamentary capacity due to old age and sickness; and in the second
alternative
4. That the purported WW was procured through undue and improper
pressure and influence on the part of the principal beneficiary, and/or of some
other person for her benefit.
Lutgarda Santiago filed her Answer to the Opposition on February 1, 1962. After trial, the
court a quo rendered judgment, the summary and dispositive portions of which read:
Passing in summary upon the grounds advanced by the oppositor, this Court
finds:
1. That there is no iota of evidence to support the contentio that the purported
will of the deceased was procured through undue and improper pressure and
influence on the part of the petitioner, or of some other person for her benefit;
2. That there is insufficient evidence to sustain the contention that at the time
of the alleged execution of the purported will, the deceased lacked
testamentary capacity due to old age and sickness;
3. That sufficient and abundant evidence warrants conclusively the fact that
the purported will of the deceased was not executed and attested as required
by law;
4. That the evidence is likewise conclusive that the document presented for
probate, Exhibit 'F' is not the purported win allegedly dictated by the
deceased, executed and signed by her, and attested by her three attesting
witnesses on April 15, 1961.
WHEREFORE, Exhibit "F", the document presented for probate as the last
wig and testament of the deceased Isabel Gabriel is here by DISALLOWED.
From this judgment of disallowance, Lutgarda Santiago appealed to respondent Court,
hence, the only issue decided on appeal was whether or not the will in question was
executed and attested as required by law. The Court of Appeals, upon consideration of the
evidence adduced by both parties, rendered the decision now under review, holding that the
will in question was signed and executed by the deceased Isabel Gabriel on April 15, 1961

in the presence of the three attesting witnesses, Matilde Orobia, Celso Gimpaya and Maria
Gimpaya, signing and witnessing the document in the presence of the deceased and of
each other as required by law, hence allow ed probate.
Oppositor Rizalina Gabriel Gonzales moved for reconsideration 3 of the aforesaid decision and
such motion was opposed 4 by petitioner-appellant Lutgarda Santiago. Thereafter. parties submitted their
respective Memoranda, 5 and on August 28, 1973, respondent Court, Former Special First Division, by
Resolution 6 denied the motion for reconsideration stating that:

The oppositor-appellee contends that the preponderance of evidence shows

that the supposed last wig and testament of Isabel Gabriel was not executed
in accordance with law because the same was signed on several occasions,
that the testatrix did not sign the will in the presence of all the instrumental
witnesses did not sign the will in the presence of each other.
The resolution of the factual issue raised in the motion for reconsideration
hinges on the appreciation of the evidence. We have carefully re-examined
the oral and documentary evidence of record, There is no reason to alter the
findings of fact in the decision of this Court sought to be set aside. 7
In her petition before this Court, oppositor Rizalina Gabriel Gonzales contends that
respondent Court abused its discretion and/or acted without or in excess of its jurisdiction in
reverssing the findings of fact and conclusions of the trial court. The Court, after deliberating
on the petition but without giving due course resolved, in the Resolution dated Oct. 11, 1973
to require the respondents to comment thereon, which comment was filed on Nov. 14, 1973.
Upon consideration of the allegations, the issues raised and the arguments adduced in the
petition, as well as the Comment 8 of private respondent thereon, We denied the petition by
Resolution on November 26, 1973, 9 the question raised being factual and for insufficient showing that the
findings of fact by respondent Court were unsupported by substantial evidence.

Subsequently, or on December 17, 1973, petitioner Rim Gabriel Goes fried a Motion for
Reconsideration 10 which private respondent answered by way of her Comment or Opposition 11 filed on
January 15, 1974. A Reply and Rejoinder to Reply followed. Finally, on March 27, 1974, We resolved to
give due course to the petition.

The petitioner in her brief makes the following assignment of errors:

I. The respondent Court of Appeals erred in holding that the document, Exhibit "F" was
executed and attested as required by law when there was absolutely no proof that the three
instrumental witnesses were credible witness
II. The Court of Appeals erred in reversing the finding of the lower court that the preparation
and execution of the win Exhibit "F", was unexpected and coincidental.

III. The Court of Appeals erred in finding that Atty, Paraiso was not previously furnished with
the names and residence certificates of the witnesses as to enable him to type such data
into the document Exhibit "F".
IV. The Court of Appeals erred in holding that the fact that the three typewritten lines under
the typewritten words "Pangalan" and "Tinitirahan" were left blank shows beyond cavil that
the three attesting witnesses were all present in the same occasion.
V. The Court of Appeals erred in reversing the trial court's finding that it was incredible that
Isabel Gabriel could have dictated the wilt Exhibit "F , without any note or document, to Atty.
Paraiso.
VI. The Court of Appeals erred in reversing the finding of the trial court that Matilde Orobia
was not physically present when the Will Exhibit "F" was allegedly signed on April 15, 1961
by the deceased Isabel Gabriel and the other witnesses Celso Gimpaya and Maria
Gimpaya.
VII. The Court of Appeals erred in holding that the trial court gave undue importance to the
picture takings as proof that the win was improperly executed.
VIII. The Court of Appeals erred in holding that the grave contradictions, evasions, and
misrepresentations of witnesses (subscribing and notary) presented by the petitioner had
been explained away, and that the trial court erred in rejecting said testimonies.
IX. The Court of Appeals acted in excess of its appellate jurisdiction or has so far departed
from the accepted and usual course of judicial proceedings, as to call for an exercise of the
power of supervision.
X. The Court of Appeals erred in reversing the decision of the trial court and admitting to
probate Exhibit "F", the alleged last will and testament of the deceased Isabel Gabriel.
It will be noted from the above assignments of errors that the same are substantially factual
in character and content. Hence, at the very outset, We must again state the oft-repeated
and well-established rule that in this jurisdiction, the factual findings of the Court of Appeals
are not reviewable, the same being binding and conclusive on this Court. This rule has been
stated and reiterated in a long line of cases enumerated in Chan vs. CA (L-27488, June 30,
1970, 33 SCRA 737, 743) 12 and Tapas vs. CA (L-22202, February 27; 1976, 69 SCRA 393), 13 and in
the more recent cases of Baptisia vs. Carillo and CA (L32192, July 30, 1976, 72 SCRA 214, 217)
and Vda. de Catindig vs. Heirs of Catalina Roque (L-25777, November 26, 1976, 74 SCRA 83, 88). In the
case of Chan vs. CA, this Court said:

... from Guico v. Mayuga, a 1936 decision, the opinion being penned by the then Justice
Recto, it has been well-settled that the jurisdiction of tills Court in cases brought to us from

the Court of Appeals is limited to reviewing and revising the errors of law imputed to it, its
findings of fact being conclusive. More specifically, in a decision exactly a month later, this
Court, speaking through the then Justice Laurel, it was held that the same principle is
applicable, even if the Court of Appeals was in disagreement with the lower court as to the
weight of the evidence with a consequent reversal of its findings of fact ...
Stated otherwise, findings of facts by the Court of Appeals, when supported by substantive
evidence are not reviewable on appeal by certiorari. Said findings of the appellate court are
final and cannot be disturbed by Us particularly because its premises are borne out by the
record or based upon substantial evidence and what is more, when such findings are
correct. Assignments of errors involving factual issues cannot be ventilated in a review of
the decision of the Court of Appeals because only legal questions may be raised. The
Supreme Court is not at liberty to alter or modify the facts as set forth in the decision of the
Court of Appeals sought to be reversed. Where the findings of the Court of Appeals are
contrary to those of the trial court, a minute scrutiny by the Supreme Court is in order, and
resort to duly-proven evidence becomes necessary. The general rule We have thus stated
above is not without some recognized exceptions.
Having laid down the above legal precepts as Our foundation, We now proceed to consider
petitioner's assignments of errors.
Petitioner, in her first assignment, contends that the respondent Court of Appeals erred in
holding that the document, Exhibit "F", was executed and attested as required by law when
there was absolutely no proof that the three instrumental witnesses were credible
witnesses. She argues that the require. ment in Article 806, Civil Code, that the witnesses
must be credible is an absolute requirement which must be complied with before an alleged
last will and testament may be admitted to probate and that to be a credible witness, there
must be evidence on record that the witness has a good standing in his community, or that
he is honest and upright, or reputed to be trustworthy and reliable. According to petitioner,
unless the qualifications of the witness are first established, his testimony may not be
favorably considered. Petitioner contends that the term "credible" is not synonymous with
"competent" for a witness may be competent under Article 820 and 821 of the Civil Code
and still not be credible as required by Article 805 of the same Code. It is further urged that
the term "credible" as used in the Civil Code should receive the same settled and wellknown meaning it has under the Naturalization Law, the latter being a kindred legislation
with the Civil Code provisions on wigs with respect to the qualifications of witnesses.
We find no merit to petitioner's first assignment of error. Article 820 of the Civil Code
provides the qualifications of a witness to the execution of wills while Article 821 sets forth
the disqualification from being a witness to a win. These Articles state:
Art. 820. Any person of sound mind and of the age of eighteen years or more,
and not blind, deaf or dumb, and able to read and write, may be a witness to

the execution of a will mentioned in article 806 of this Code. "Art. 821. The
following are disqualified from being witnesses to a will:
(1) Any person not domiciled in the Philippines,
(2) Those who have been convicted of falsification of a document, perjury or
false testimony.
Under the law, there is no mandatory requirement that the witness testify initially or at any
time during the trial as to his good standing in the community, his reputation for
trustworthythiness and reliableness, his honesty and uprightness in order that his testimony
may be believed and accepted by the trial court. It is enough that the qualifications
enumerated in Article 820 of the Civil Code are complied with, such that the soundness of
his mind can be shown by or deduced from his answers to the questions propounded to
him, that his age (18 years or more) is shown from his appearance, testimony , or
competently proved otherwise, as well as the fact that he is not blind, deaf or dumb and that
he is able to read and write to the satisfaction of the Court, and that he has none of the
disqualifications under Article 821 of the Civil Code. We reject petitioner's contention that it
must first be established in the record the good standing of the witness in the community,
his reputation for trustworthiness and reliableness, his honesty and uprightness, because
such attributes are presumed of the witness unless the contrary is proved otherwise by the
opposing party.
We also reject as without merit petitioner's contention that the term "credible" as used in the
Civil Code should be given the same meaning it has under the Naturalization Law where the
law is mandatory that the petition for naturalization must be supported by two character
witnesses who must prove their good standing in the community, reputation for
trustworthiness and reliableness, their honesty and uprightness. The two witnesses in a
petition for naturalization are character witnesses in that being citizens of the Philippines,
they personally know the petitioner to be a resident of the Philippines for the period of time
required by the Act and a person of good repute and morally irreproachable and that said
petitioner has in their opinion all the qualifications necessary to become a citizen of the
Philippines and is not in any way disqualified under the provisions of the Naturalization Law
(Section 7, Commonwealth Act No. 473 as amended).
In probate proceedings, the instrumental witnesses are not character witnesses for they
merely attest the execution of a will or testament and affirm the formalities attendant to said
execution. And We agree with the respondent that the rulings laid down in the cases cited
by petitioner concerning character witnesses in naturalization proceedings are not
applicable to instrumental witnesses to wills executed under the Civil Code of the
Philippines.

In the case at bar, the finding that each and everyone of the three instrumental witnesses,
namely, Matilde Orobia, Celso Gimpaya and Maria Gimpaya, are competent and credible is
satisfactorily supported by the evidence as found by the respondent Court of Appeals, which
findings of fact this Tribunal is bound to accept and rely upon. Moreover, petitioner has not
pointed to any disqualification of any of the said witnesses, much less has it been shown
that anyone of them is below 18 years of age, of unsound mind, deaf or dumb, or cannot
read or write.
It is true that under Article 805 of the New Civil Code, every will, other than a holographic
will, must be subscribed at the end thereof by the testator himself or by the testator's name
written by some other person in his presence, and by his express direction, and attested
and subscribed by three or more credible witnesses in the presence of the testator and of
one another, While the petitioner submits that Article 820 and 821 of the New Civil Code
speak of the competency of a witness due to his qualifications under the first Article and
none of the disqualifications under the second Article, whereas Article 805 requires the
attestation of three or more credible witnesses, petitioner concludes that the
term credible requires something more than just being competent and, therefore, a witness
in addition to being competent under Articles 820 and 821 must also be a credible witness
under Article 805.
Petitioner cites American authorities that competency and credibility of a witness are not
synonymous terms and one may be a competent witness and yet not a credible one. She
exacerbates that there is no evidence on record to show that the instrumental witnesses are
credible in themselves, that is, that they are of good standing in the community since one
was a family driver by profession and the second the wife of the driver, a housekeeper. It is
true that Celso Gimpaya was the driver of the testatrix and his wife Maria Gimpaya, merely
a housekeeper, and that Matilde Orobia was a piano teacher to a grandchild of the testatrix
But the relation of employer and employee much less the humble or financial position of a
person do not disqualify him to be a competent testamentary witness. (Molo Pekson and
Perez Nable vs. Tanchuco, et al., 100 Phil. 344; Testate Estate of Raymundo, Off. Gaz.,
March 18,1941, p. 788).
Private respondent maintains that the qualifications of the three or more credible witnesses
mentioned in Article 805 of the Civil Code are those mentioned in Article 820 of the same
Code, this being obvious from that portion of Article 820 which says "may be Q witness to
the execution of a will mentioned in Article 805 of this Code," and cites authorities that the
word "credible" insofar as witnesses to a will are concerned simply means " competent."
Thus, in the case of Suntay vs. Suntay, 95 Phil. 500, the Supreme Court held that "Granting
that a will was duly executed and that it was in existence at the time of, and not revoked
before, the death of the testator, still the provisions of the lost wig must be clearly and
distinctly proved by at least two credible witnesses. 'Credible witnesses' mean competent
witnesses and not those who testify to facts from or upon hearsay. " emphasis supplied).

In Molo Pekson and Perez Nable vs. Tanchuco, et al., 100 Phil. 344, the Supreme Court
held that "Section 620 of the same Code of Civil Procedure provides that any person of
sound mind, and of the age of eighteen years or more, and not blind, deaf, or dumb and
able to read and write, may be a witness to the execution of a will. This same provision is
reproduced in our New Civil Code of 1950, under Art. 820. The relation of employer and
employee, or being a relative to the beneficiary in a win, does not disqualify one to be a
witness to a will. The main qualification of a witness in the attestation of wills, if other
qualifications as to age, mental capacity and literacy are present, is that said witness must
be credible, that is to say, his testimony may be entitled to credence. There is a long line of
authorities on this point, a few of which we may cite:
A 'credible witness is one who is not is not to testify by mental incapacity,
crime, or other cause. Historical Soc of Dauphin County vs. Kelker 74 A. 619,
226 Pix 16, 134 Am. St. Rep. 1010. (Words and Phrases, Vol. 10, p. 340).
As construed by the common law, a 'credible witness' to a will means a
'competent witness.' Appeal of Clark, 95 A. 517, 114 Me. 105, Ann. Cas.
1917A, 837. (lbid, p. 341).
Expression 'credible witness' in relation to attestation of wins means
'competent witness that is, one competent under the law to testify to fact of
execution of will. Vernon's Ann. Civ St. art. 8283. Moos vs. First State Bank of
Uvalde, Tex . Civ. App. 60 S.W. 2nd 888, 889. (Ibid, p. 342)
The term 'credible', used in the statute of wills requiring that a will shall be
attested by two credible witnesses means competent; witnesses who, at the
time of attesting the will, are legally competent to testify, in a court of justice,
to the facts attested by subscribing the will, the competency being determined
as of the date of the execution of the will and not of the timr it is offered for
probate, Smith vs. Goodell 101 N.E. 255, 256, 258 111. 145. (Ibid.)
Credible witnesses as used in the statute relating to wills, means competent
witnesses that is, such persons as are not legally disqualified from
testifying in courts of justice, by reason of mental incapacity, interest, or the
commission of crimes, or other cause excluding them from testifying
generally, or rendering them incompetent in respect of the particular subject
matter or in the particular suit. Hill vs. Chicago Title & Trust co 152 N.E. 545,
546, 322 111. 42. (Ibid. p, 343)
In the strict sense, the competency of a person to be an instrumental witness to a will is
determined by the statute, that is Art. 820 and 821, Civil Code, whereas his credibility
depends On the appreciation of his testimony and arises from the belief and conclusion of
the Court that said witness is telling the truth. Thus, in the case of Vda. de Aroyo v. El

Beaterio del Santissimo Rosario de Molo, No. L-22005, May 3, 1968, the Supreme Court
held and ruled that: "Competency as a witness is one thing, and it is another to be a
credible witness, so credible that the Court must accept what he says. Trial courts may
allow a person to testify as a witness upon a given matter because he is competent, but
may thereafter decide whether to believe or not to believe his testimony." In fine, We state
the rule that the instrumental witnesses in Order to be competent must be shown to have
the qualifications under Article 820 of the Civil Code and none of the disqualifications under
Article 821 and for their testimony to be credible, that is worthy of belief and entitled to
credence, it is not mandatory that evidence be first established on record that the witnesses
have a good standing in the community or that they are honest and upright or reputed to be
trustworthy and reliable, for a person is presumed to be such unless the contrary is
established otherwise. In other words, the instrumental witnesses must be competent and
their testimonies must be credible before the court allows the probate of the will they have
attested. We, therefore, reject petitioner's position that it was fatal for respondent not to
have introduced prior and independent proof of the fact that the witnesses were "credible
witnesses that is, that they have a good standing in the community and reputed to be
trustworthy and reliable.
Under the second, third, fourth, fifth, sixth, seventh and eighth assignments of errors,
petitioner disputes the findings of fact of the respondent court in finding that the preparation
and execution of the will was expected and not coincidental, in finding that Atty. Paraiso was
not previously furnished with the names and residence certificates of the witnesses as to
enable him to type such data into the document Exhibit "F", in holding that the fact that the
three typewritten lines under the typewritten words "pangalan" and "tinitirahan" were left
blank shows beyond cavil that the three attesting witnesses were all present in the same
occasion, in holding credible that Isabel Gabriel could have dictated the will without note or
document to Atty. Paraiso, in holding that Matilde Orobia was physically present when the
will was signed on April 15, 1961 by the deceased Isabel Gabriel and the other witnesses
Celso Gimpaya and Maria Gimpaya, in holding that the trial court gave undue importance to
the picture takings as proof that the will was improperly executed, and in holding that the
grave contradictions, evasions and misrepresentations of the witnesses (subscribing and
notary) presented by the petitioner had been explained away.
Since the above errors are factual We must repeat what We have previously laid down that
the findings of fact of the appellate court are binding and controlling which We cannot
review, subject to certain exceptions which We win consider and discuss hereinafter. We
are convinced that the appellate court's findings are sufficiently justified and supported by
the evidence on record. Thus, the alleged unnaturalness characterizing the trip of the
testatrix to the office of Atty. Paraiso and bringing all the witnesses without previous
appointment for the preparation and execution of the win and that it was coincidental that
Atty. Paraiso was available at the moment impugns the finding of the Court of Appeals that
although Atty. Paraiso admitted the visit of Isabel Gabriel and of her companions to his
office on April 15, 1961 was unexpected as there was no prior appointment with him, but he

explained that he was available for any business transaction on that day and that Isabel
Gabriel had earlier requested him to help her prepare her will. The finding of the appellate
court is amply based on the testimony of Celso Gimpaya that he was not only informed on
the morning of the day that he witnessed the will but that it was the third time when Isabel
Gabriel told him that he was going to witness the making of her will, as well as the testimony
of Maria Gimpaya that she was called by her husband Celso Gimpaya to proceed to Isabel
Gabriel's house which was nearby and from said house, they left in a car to the lawyer's
office, which testimonies are recited in the respondent Court's decision.
The respondent Court further found the following facts: that Celso Gimpaya and his wife
Maria Gimpaya obtained residence certificates a few days before Exhibit "F" was executed.
Celso Gimpaya's residence certificate No. A-5114942 was issued at Navotas, Rizal on April
13, 1961 while Maria Gimpaya's residence certificate No. A-5114974 was issued also at
Navotas, Rizal on April 14, 1961. The respondent Court correctly observed that there was
nothing surprising in these facts and that the securing of these residence certificates two
days and one day, respectively, before the execution of the will on April 15, 1961, far from
showing an amazing coincidence, reveals that the spouses were earlier notified that they
would be witnesses to the execution of Isabel Gabriel's will.
We also agree with the respondent Court's conclusion that the excursion to the office of Atty.
Paraiso was planned by the deceased, which conclusion was correctly drawn from the
testimony of the Gimpaya spouses that they started from the Navotas residence of the
deceased with a photographer and Isabel Gabriel herself, then they proceeded by car to
Matilde Orobia's house in Philamlife, Quezon City to fetch her and from there, all the three
witnesses (the Gimpayas and Orobia) passed by a place where Isabel Gabriel stayed for
about ten to fifteen minutes at the clinic of Dr. Chikiamco before they proceeded to Atty.
Cipriano Paraiso's office.
It is also evident from the records, as testified to by Atty. Paraiso, that previous to the day
that. the will was executed on April 15, 1961, Isabel Gabriel had requested him to help her
in the execution of her will and that he told her that if she really wanted to execute her will,
she should bring with her at least the Mayor of Navotas, Rizal and a Councilor to be her
witnesses and that he (Atty. Paraiso) wanted a medical certificate from a physician
notwithstanding the fact that he believed her to be of sound and disposition mind. From this
evidence, the appellate court rightly concluded, thus: "It is, therefore, clear that the
presence of Isabel Gabriel and her witnesses Matilde Orobia, Celso Gimpaya and Maria
Gimpaya including the photographer in the law office of Atty. Paraiso was not coincidental
as their gathering was pre-arranged by Isabel Gabriel herself."
As to the appellate court's finding that Atty. Paraiso was not previously furnished with the
names and residence certificates of the witnesses as to enable him to type such data into
the document Exhibit ' L which the petitioner assails as contradictory and irreconcilable with
the statement of the Court that Atty. Paraiso was handed a list (containing the names of the

witnesses and their respective residence certificates) immediately upon their arrival in the
law office by Isabel Gabriel and this was corroborated by Atty. Paraiso himself who testified
that it was only on said occasion that he received such list from Isabel Gabriel, We cannot
agree with petitioner's contention. We find no contradiction for the, respondent Court held
that on the occasion of the will making on April 15, 1961, the list was given immediately to
Atty. Paraiso and that no such list was given the lawyer in any previous occasion or date
prior to April 15, 1961.
But whether Atty. Paraiso was previously furnished with the names and residence
certificates of the witnesses on a prior occasion or on the very occasion and date in April 15,
1961 when the will was executed, is of no moment for such data appear in the notarial
acknowledgment of Notary Public Cipriano Paraiso, subscribed and sworn to by the
witnesses on April 15, 1961 following the attestation clause duly executed and signed on
the same occasion, April 15, 1961. And since Exhibit "F" is a notarial will duly acknowledged
by the testatrix and the witnesses before a notary public, the same is a public document
executed and attested through the intervention of the notary public and as such public
document is evidence of the facts in clear, unequivocal manner therein expressed. It has in
its favor the presumption of regularity. To contradict all these, there must be evidence that is
clear, convincing and more than merely preponderant. (Yturalde vs. Azurin, 28 SCRA 407).
We find no such evidence pointed by petitioner in the case at bar.
Likewise, the conclusion of the Court of Appeals in holding that the fact that the three
typewritten lines under the typewritten words "pangalan ' and "tinitirahan" were left blank
shows beyond cavil that the three attesting witnesses were all present in the same occasion
merits Our approval because tills conclusion is supported and borne out by the evidence
found by the appellate court, thus: "On page 5 of Exhibit "F", beneath the typewritten words
"names", "Res. Tax Cert. date issued" and place issued the only name of Isabel Gabriel with
Residence Tax certificate No. A-5113274 issued on February 24, 1961 at Navotas Rizal
appears to be in typewritten form while the names, residence tax certificate numbers, dates
and places of issuance of said certificates pertaining to the three (3) witnesses were
personally handwritten by Atty. Paraiso. Again, this coincides with Atty. Paraiso's even the
sale must be made to close relatives; and the seventh was the appointment of the appellant
Santiago as executrix of the will without bond. The technical description of the properties in
paragraph 5 of Exhibit F was not given and the numbers of the certificates of title were only
supplied by Atty. Paraiso. "
It is true that in one disposition, the numbers of the Torrens titles of the properties disposed
and the docket number of a special proceeding are indicated which Atty. Paraiso candidly
admitted were supplied by him, whereupon petitioner contends that it was incredible that
Isabel Gabriel could have dictated the will Exhibit "F" without any note or document to Atty.
Paraiso, considering that Isabel Gabriel was an old and sickly woman more than eighty-one
years old and had been suffering from a brain injury caused by two severe blows at her
head and died of terminal cancer a few weeks after the execution of Exhibit "F". While we

can rule that this is a finding of fact which is within the competency of the respondent
appellate court in determining the testamentary capacity of the testatrix and is, therefore,
beyond Our power to revise and review, We nevertheless hold that the conclusion reached
by the Court of Appeals that the testatrix dictated her will without any note or memorandum
appears to be fully supported by the following facts or evidence appearing on record. Thus,
Isabel Gabriel, despite her age, was particularly active in her business affairs as she
actively managed the affairs of the movie business ISABELITA Theater, paying the
aparatistas herself until June 4, 1961, 3 days before her death. She was the widow of the
late Eligio Naval, former Governor of Rizal Province and acted as coadministratrix in the
Intestate Estate of her deceased husband Eligio Naval. The text of the win was in Tagalog,
a dialect known and understood by her and in the light of all the circumstances, We agree
with the respondent Court that the testatrix dictated her will without any note or
memorandum, a fact unanimously testified to by the three attesting witnesses and the
notary public himself.
Petitioner's sixth assignment of error is also bereft of merit. The evidence, both testimonial
and documentary is, according to the respondent court, overwhelming that Matilde Orobia
was physically present when the will was signed on April 15, 1961 by the testatrix and the
other two witnesses, Celso Gimpaya and Maria Gimpaya. Such factual finding of the
appellate court is very clear, thus: "On the contrary, the record is replete with proof that
Matilde Orobia was physically present when the will was signed by Isabel Gabriel on April
'15, 1961 along with her co-witnesses Celso Gimpaya and Maria Gimpaya. The trial court's
conclusion that Orobia's admission that she gave piano lessons to the child of the appellant
on Wednesdays and Saturdays and that April 15, 1961 happened to be a Saturday for
which reason Orobia could not have been present to witness the will on that day is purely
conjectural. Witness Orobia did not admit having given piano lessons to the appellant's child
every Wednesday and Saturday without fail. It is highly probable that even if April 15, 1961
were a Saturday, she gave no piano lessons on that day for which reason she could have
witnessed the execution of the will. Orobia spoke of occasions when she missed giving
piano lessons and had to make up for the same. Anyway, her presence at the law office of
Atty. Paraiso was in the morning of April 15, 1961 and there was nothing to preclude her
from giving piano lessons on the afternoon of the same day in Navotas, Rizal."
In addition to the testimony of Matilde Orobia, Celso Gimpaya and Maria Gimpaya that
Matilde was present on April 15, 1961 and that she signed the attestation clause to the will
and on the left-hand margin of each of the pages of the will, the documentary evidence
which is the will itself, the attestation clause and the notarial acknowledgment
overwhelmingly and convincingly prove such fact that Matilde Orobia was present on that
day of April 15, 1961 and that she witnessed the will by signing her name thereon and
acknowledged the same before the notary public, Atty. Cipriano P. Paraiso. The attestation
clause which Matilde Orobia signed is the best evidence as to the date of signing because it
preserves in permanent form a recital of all the material facts attending the execution of the
will. This is the very purpose of the attestation clause which is made for the purpose of

preserving in permanent form a record of the facts attending the execution of the will, so
that in case of failure in the memory of the subscribing witnesses, or other casualty they
may still be proved. (Thompson on Wills, 2nd ed., Sec. 132; Leynez vs. Leynez, 68 Phil.
745).
As to the seventh error assigned by petitioner faulting the Court of Appeals in holding that
the trial court gave undue importance to the picture-takings as proof that the win was
improperly executed, We agree with the reasoning of the respondent court that: "Matilde
Orobia's Identification of the photographer as "Cesar Mendoza", contrary to what the other
two witnesses (Celso and Maria Gimpaya) and Atty. Paraiso said that the photographer was
Benjamin Cifra, Jr., is at worst a minor mistake attributable to lapse of time. The law does
not require a photographer for the execution and attestation of the will. The fact that Miss
Orobia mistakenly Identified the photographer as Cesar Mendoza scarcely detracts from her
testimony that she was present when the will was signed because what matters here is not
the photographer but the photograph taken which clearly portrays Matilde Orobia herself,
her co-witnesses Celso Gimpaya. " Further, the respondent Court correctly held: "The trial
court gave undue importance to the picture takings, jumping therefrom to the conclusion
that the will was improperly executed. The evidence however, heavily points to only one
occasion of the execution of the will on April 15, 1961 which was witnessed by Matilde
Orobia, Celso Gimpaya and Maria Gimpaya. These witnesses were quite emphatic and
positive when they spoke of this occasion. Hence, their Identification of some photographs
wherein they all appeared along with Isabel Gabriel and Atty. Paraiso was superfluous."
Continuing, the respondent Court declared: "It is true that the second picture-taking was
disclosed at the cross examination of Celso Gimpaya. But this was explained by Atty.
Paraiso as a reenactment of the first incident upon the insistence of Isabel Gabriel. Such
reenactment where Matilde Orobia was admittedly no longer present was wholly
unnecessary if not pointless. What was important was that the will was duly executed and
witnessed on the first occasion on April 15, 1961 , " and We agree with the Court's
rationalization in conformity with logic, law and jurisprudence which do not require picturetaking as one of the legal requisites for the execution or probate of a will.
Petitioner points to alleged grave contradictions, evasions and misrepresentations of
witnesses in their respective testimonies before the trial court. On the other hand, the
respondent Court of Appeals held that said contradictions, evasions and misrepresentations
had been explained away. Such discrepancies as in the description of the typewriter used
by Atty. Paraiso which he described as "elite" which to him meant big letters which are of the
type in which the will was typewritten but which was Identified by witness Jolly Bugarin of
the N.B.I. as pica the mistake in mentioning the name of the photographer by Matilde
Orobia to be Cesar Mendoza when actually it was Benjamin Cifra, Jr. these are indeed
unimportant details which could have been affected by the lapse of time and the treachery
of human memory such that by themselves would not alter the probative value of their
testimonies on the true execution of the will, (Pascual vs. dela Cruz, 28 SCRA 421, 424) for

it cannot be expected that the testimony of every person win be Identical and coinciding
with each other with regard to details of an incident and that witnesses are not expected to
remember all details. Human experience teach us "that contradictions of witnesses
generally occur in the details of certain incidents, after a long series of questionings, and far
from being an evidence of falsehood constitute a demonstration of good faith. In as much as
not all those who witness an incident are impressed in like manner, it is but natural that in
relating their impressions, they should not agree in the minor details; hence the
contradictions in their testimony." (Lopez vs. Liboro, 81 Phil. 429).
It is urged of Us by the petitioner that the findings of the trial court should not have been
disturbed by the respondent appellate court because the trial court was in a better position
to weigh and evaluate the evidence presented in the course of the trial. As a general rule,
petitioner is correct but it is subject to well-established exceptions. The right of the Court of
Appeals to review, alter and reverse the findings of the trial court where the appellate court,
in reviewing the evidence has found that facts and circumstances of weight and influence
have been ignored and overlooked and the significance of which have been misinterpreted
by the trial court, cannot be disputed. Findings of facts made by trial courts particularly
when they are based on conflicting evidence whose evaluation hinges on questions of
credibility of contending witnesses hes peculiarly within the province of trial courts and
generally, the appellate court should not interfere with the same. In the instant case,
however, the Court of Appeals found that the trial court had overlooked and misinterpreted
the facts and circumstances established in the record. Whereas the appellate court said that
"Nothing in the record supports the trial court's unbelief that Isabel Gabriel dictated her will
without any note or document to Atty. Paraiso;" that the trial court's conclusion that Matilde
Orobia could not have witnessed anybody signing the alleged will or that she could not have
witnessed Celso Gimpaya and Maria Gimpaya sign the same or that she witnessed only the
deceased signing it, is a conclusion based not on facts but on inferences; that the trial court
gave undue importance to the picture-takings, jumping therefrom to the conclusion that the
will was improperly executed and that there is nothing in the entire record to support the
conclusion of the court a quo that the will signing occasion was a mere coincidence and that
Isabel Gabriel made an appointment only with Matilde Orobia to witness the signing of her
will, then it becomes the duty of the appellate court to reverse findings of fact of the trial
court in the exercise of its appellate jurisdiction over the lower courts.
Still the petitioner insists that the case at bar is an exception to the rule that the judgment of
the Court of Appeals is conclusive as to the facts and cannot be reviewed by the Supreme
Court. Again We agree with the petitioner that among the exceptions are: (1) when the
conclusion is a finding grounded entirely on speculations, surmises or conjectures; (2) when
the inference is manifestly mistaken, absurd or impossible; (3) when there is a grave abuse
of discretion; (4) when the presence of each other as required by law. " Specifically, We
affirm that on April 15, 1961 the testatrix Isabel Gabriel, together with Matilde Orobia, Celso
Gimpaya and his wife Maria Gimpaya, and a photographer proceeded in a car to the office
of Atty. Cipriano Paraiso at the Bank of P.I. Building, Manila in the morning of that day; that

on the way, Isabel Gabriel obtained a medical certificate from one Dr. Chikiamko which she
gave to Atty. Paraiso upon arriving at the latter's office and told the lawyer that she wanted
her will to be made; that Atty. Paraiso asked Isabel Gabriel to dictate what she wanted to be
written in the will and the attorney wrote down the dictation of Isabel Gabriel in Tagalog, a
language known to and spoken by her; that Atty. Paraiso read back to her what he wrote as
dictated and she affirmed their correctness; the lawyer then typed the will and after finishing
the document, he read it to her and she told him that it was alright; that thereafter, Isabel
Gabriel signed her name at the end of the will in the presence of the three witnesses
Matilde Orobia, Celso Gimpaya and Maria Gimpaya and also at the left-hand margin of
each and every page of the document in the presence also of the said three witnesses; that
thereafter Matilde Orobia attested the will by signing her name at the end of the attestation
clause and at the left-hand margin of pages 1, 2, 3 and 5 of the document in the presence
of Isabel Gabriel and the other two witnesses, Celso Gimpaya and Maria Gimpaya; then,
Celso Gimpaya signed also the will at the bottom of the attestation clause and at the lefthand margin of the other pages of the document in the presence of Isabel Gabriel, Matilde
Orobia and Maria Gimpaya; that Maria Gimpaya followed suit, signing her name at the foot
of the attestation clause and at the left-hand margin of every page in the presence of Isabel
Gabriel, Matilde Orobia and Celso Gimpaya; that thereafter, Atty. Paraiso notarized the will
as Page No. 94, Book No. IV, Series of 1961, in his Notarial Register. On the occasion of
the execution and attestation of the will, a photographer took pictures, one Exhibit "G",
depicting Matilde Orobia, the testatrix Isabel Gabriel, Celso Gimpaya, Maria Gimpaya and
Atty. Paraiso, taken on said occasion of the signing of the will, and another, Exhibit "H",
showing Matilde Orobia signing testimony that he had earlier advised Isabel Gabriel to bring
with her at least the Mayor and a Councilor of Navotas, Rizal to be her witnesses for he did
not know beforehand the Identities of the three attesting witnesses until the latter showed
up at his law office with Isabel Gabriel on April 15, 1961. Atty. Paraiso's claim which was not
controverted that he wrote down in his own hand the date appearing on page 5 of Exhibit
"F" dissipates any lingering doubt that he prepared and ratified the will on the date in
question."
It is also a factual finding of the Court of Appeals in holding that it was credible that Isabel
Gabriel could have dictated the will, Exhibit "F", without any note or document to Atty.
Paraiso as against the contention of petitioner that it was incredible. This ruling of the
respondent court is fully supported by the evidence on record as stated in the decision
under review, thus: "Nothing in the record supports the trial court's unbelief that Isabel
Gabriel dictated her will without any note or document to Atty. Paraiso. On the contrary, all
the three attesting witnesses uniformly testified that Isabel Gabriel dictated her will to Atty.
Paraiso and that other than the piece of paper that she handed to said lawyer she had no
note or document. This fact jibes with the evidence which the trial court itself believed
was unshaken that Isabel Gabriel was of sound disposing memory when she executed
her will.

Exhibit "F" reveals only seven (7) dispositions which are not complicated but quite simple.
The first was Isabel Gabriel's wish to be interred according to Catholic rites the second was
a general directive to pay her debts if any; the third provided for P1,000.00 for her sister
Praxides Gabriel Vda. de Santiago and P2,000.00 for her brother Santiago Gabriel; the
fourth was a listing of her 13 nephews and nieces including oppositor-appellee Rizalina
Gabriel and the amount for each legatee the fifth was the institution of the petitionerappellant, Lutgarda Santiago as the principal heir mentioning in general terms seven (7)
types of properties; the sixth disposed of the remainder of her estate which she willed in
favor of appellant Lutgarda Santiago but prohibiting the sale of such properties to anyone
except in extreme situations in which judgment is based on a misapprehension of facts; (5)
when the findings of fact are conflicting, (6) when the Court of Appeals, in making its
findings, went beyond the issues of the case and the same is contrary to the admissions of
both appellant and appellee. (Roque vs. Buan, et al., G.R. No. L-22459, Oct. 31, 1967;
Ramos vs. Pepsi Cola Bottling Co., G.R. No. L-22533, Feb. 9, 1967; Hilarion Jr. vs. City of
Manila, G.R. No. L-19570; Sept. 14, 1967).
Petitioner's insistence is without merit. We hold that the case at bar does not fall within any
of the exceptions enumerated above. We likewise hold that the findings of fact of the
respondent appellate court are fully supported by the evidence on record. The conclusions
are fully sustained by substantial evidence. We find no abuse of discretion and We discern
no misapprehension of facts. The respondent Court's findings of fact are not conflicting.
Hence, the well-established rule that the decision of the Court of Appeals and its findings of
fact are binding and conclusive and should not be disturbed by this Tribunal and it must be
applied in the case at bar in its full force and effect, without qualification or reservation. The
above holding simply synthesize the resolutions we have heretofore made in respect ' to
petitioner's previous assignments of error and to which We have disagreed and, therefore,
rejected.
The last assignments of error of petitioner must necessarily be rejected by Us as We find
the respondent Court acted properly and correctly and has not departed from the accepted
and usual course of judicial proceedings as to call for the exercise of the power of
supervision by the Supreme Court, and as We find that the Court of Appeals did not err in
reversing the decision of the trial court and admitting to probate Exhibit "F", the last will and
testament of the deceased Isabel Gabriel.
We rule that the respondent Court's factual findings upon its summation and evaluation of
the evidence on record is unassailable that: "From the welter of evidence presented, we are
convinced that the will in question was executed on April 15, 1961 in the presence of
Matilde Orobia, Celso Gimpaya and Maria Gimpaya signing and witnessing the same in the
the will on a table with Isabel Gabriel, Celso Gimpaya and Maria Gimpaya sitting around the
table. Atty. Paraiso, after finishing the notarial act, then delivered the original to Isabel
Gabriel and retained the other copies for his file and notarial register. A few days following
the signing of the will, Isabel Gabriel, Celso Gimpaya and another photographer arrived at

the office of Atty. Paraiso and told the lawyer that she wanted another picture taken because
the first picture did not turn out good. The lawyer told her that this cannot be done because
the will was already signed but Isabel Gabriel insisted that a picture be taken, so a
simulated signing was performed during which incident Matilde Orobia was not present.
Petitioner's exacerbation centers on the supposed incredibility of the testimonies of the
witnesses for the proponent of the will, their alleged evasions, inconsistencies and
contradictions. But in the case at bar, the three instrumental witnesses who constitute the
best evidence of the will making have testified in favor of the probate of the will. So has the
lawyer who prepared it, one learned in the law and long in the practice thereof, who
thereafter notarized it. All of them are disinterested witnesses who stand to receive no
benefit from the testament. The signatures of the witnesses and the testatrix have been
identified on the will and there is no claim whatsoever and by anyone, much less the
petitioner, that they were not genuine. In the last and final analysis, the herein conflict is
factual and we go back to the rule that the Supreme Court cannot review and revise the
findings of facts of the respondent Court of Appeals.
WHEREFORE, IN VIEW OF THE FOREGOING, the judgment appealed from is hereby
AFFIRMED, with costs against the petitioner.
SO ORDERED.
SECOND DIVISION
[G.R. No. 26317. January 29, 1927.]
Estate of Miguel Mamuyac, deceased. FRANCISCO GAGO, Petitioner-Appellant, v. CORNELIO
MAMUYAC, AMBROSIO LARIOSA, FELICIANA BAUZON, and CATALINA MAMUYAC,
opponents-appellees.
Nicanor Tavora for Appellant.
Jose Rivera for Appellees.
SYLLABUS
1. WILLS, CANCELLATION OF; PRESUMPTION. The law does not require any evidence of the
revocation or cancellation of the will to be preserved. It therefore becomes difficult at times to prove
the cancellation or revocation of wills. 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.

DECISION

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 Anastasio 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:

jgc:chanroble s.com.ph

"That Exhibit A is a mere carbon copy of its original which remained in the possession of the deceased
testator Miguel Mamuyac, who revoked it before his death as per testimony of witnesses Jose Fenoy,
who typed the will of the testator on April 16, 1919, and Carlos Bejar, who saw on December 30,
1920, the original of 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 crossexamined by attorney for the opponents, testified that the original of 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 the 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 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 view of the fact 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 court are in accordance with the weight of the
evidence. In a proceeding to probate a will the burden of proof 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, 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 v. Casquijo, G.R. No. 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.
Street, Malcolm, Villamor, Ostrand, Romualdez and Villa-Real, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
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 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 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:
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 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.
G.R. No. 17714

1wphl.nt

May 31, 1922

In the mater of the estate of Jesus de Leon.

IGNACIA DIAZ, petitioner-appellant,
vs.
ANA DE LEON, opponent-appellee.
Montinola, Montinola & Hontiveros and Jose Lopez Vito for appellant.
Francisco A. Delgado, Powell & Hill and Padilla & Treas for appellee.
ROMUALDEZ, J.:
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.
But according to the statute governing the subject in this jurisdiction, the destruction of a
will animo revocandiconstitutes, in itself, a sufficient revocation. (Sec. 623, Code of Civil
Procedure.)
lvvph1n+

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.
G.R. No. 108581 December 8, 1999
LOURDES L. DOROTHEO, petitioner,
vs.
COURT OF APPEALS, NILDA D. QUINTANA, for Herself and as Attorney-in-Fact of
VICENTE DOROTHEO and JOSE DOROTHEO, respondents.

YNARES-SANTIAGO, J.:
May a last will and testament admitted to probate but declared intrinsically void in an order
that has become final and executory still be given effect? This is the issue that arose from
the following antecedents:
Private respondents were the legitimate children of Alejandro Dorotheo and Aniceta Reyes.
The latter died in 1969 without her estate being settled. Alejandro died thereafter. Sometime
in 1977, after Alejandro's death, petitioner, who claims to have taken care of Alejandro
before he died, filed a special proceeding for the probate of the latter's last will and
testament. In 1981, the court issued an order admitting Alejandro's will to probate. Private
respondents did not appeal from said order. In 1983, they filed a "Motion To Declare The
Will Intrinsically Void." The trial court granted the motion and issued an order, the dispositive
portion of which reads:
WHEREFORE, in view of the foregoing, Order is hereby issued declaring
Lourdes Legaspi not the wife of the late Alejandro Dorotheo, the provisions of
the last will and testament of Alejandro Dorotheo as intrinsically void, and
declaring the oppositors Vicente Dorotheo, Jose Dorotheo and Nilda
Dorotheo Quintana as the only heirs of the late spouses Alejandro Dorotheo
and Aniceta Reyes, whose respective estates shall be liquidated and

distributed according to the laws on intestacy upon payment of estate and

other taxes due to the government. 1
Petitioner moved for reconsideration arguing that she is entitled to some compensation
since she took care of Alejandro prior to his death although she admitted that they were not
married to each other. Upon denial of her motion for reconsideration, petitioner appealed to
the Court of Appeals, but the same was dismissed for failure to file appellant's brief within
the extended period
granted. 2 This dismissal became final and executory on February 3, 1989 and a corresponding entry of
judgment was forthwith issued by the Court of Appeals on May 16, 1989. A writ of execution was issued
by the lower court to implement the final and executory Order. Consequently, private respondents filed
several motions including a motion to compel petitioner to surrender to them the Transfer Certificates of
Titles (TCT) covering the properties of the late Alejandro. When petitioner refused to surrender the TCT's,
private respondents filed a motion for cancellation of said titles and for issuance of new titles in their
names. Petitioner opposed the motion.

An Order was issued on November 29, 1990 by Judge Zain B. Angas setting aside the final
and executory Order dated January 30, 1986, as well as the Order directing the issuance of
the writ of execution, on the ground that the order was merely "interlocutory", hence not final
in character. The court added that the dispositive portion of the said Order even directs the
distribution of the estate of the deceased spouses. Private respondents filed a motion for
reconsideration which was denied in an Order dated February 1, 1991. Thus, private
respondents filed a petition before the Court of Appeals, which nullified the two assailed
Orders dated November 29, 1990 and February 1, 1991.
Aggrieved, petitioner instituted a petition for review arguing that the case filed by private
respondents before the Court of Appeals was a petition under Rule 65 on the ground of
grave abuse of discretion or lack of jurisdiction. Petitioner contends that in issuing the two
assailed orders, Judge Angas cannot be said to have no jurisdiction because he was
particularly designated to hear the case. Petitioner likewise assails the Order of the Court of
Appeals upholding the validity of the January 30, 1986 Order which declared the intrinsic
invalidity of Alejandro's will that was earlier admitted to probate.
Petitioner also filed a motion to reinstate her as executrix of the estate of the late Alejandro
and to maintain thestatus quo or lease of the premises thereon to third parties. 3 Private
respondents opposed the motion on the ground that petitioner has no interest in the estate since she is
not the lawful wife of the late Alejandro.

The petition is without merit. A final and executory decision or order can no longer be
disturbed or reopened no matter how erroneous it may be. In setting aside the January 30,
1986 Order that has attained finality, the trial court in effect nullified the entry of judgment
made by the Court of Appeals. It is well settled that a lower court cannot reverse or set
aside decisions or orders of a superior court, for to do so would be to negate the hierarchy

of courts and nullify the essence of review. It has been ruled that a final judgment on
probated will, albeit erroneous, is binding on the whole world. 4
It has been consistently held that if no appeal is taken in due time from a judgment or order
of the trial court, the same attains finality by mere lapse of time. Thus, the order allowing the
will became final and the question determined by the court in such order can no longer be
raised anew, either in the same proceedings or in a different motion. The matters of due
execution of the will and the capacity of the testator acquired the character ofres
judicata and cannot again be brought into question, all juridical questions in connection
therewith being for once and forever closed. 5 Such final order makes the will conclusive against the
whole world as to its extrinsic validity and due execution. 6

It should be noted that probate proceedings deals generally with the extrinsic validity of the
will sought to be probated, 7 particularly on three aspects:
n whether the will submitted is indeed, the
decedent's last will and testament;
n compliance with the prescribed formalities for
the execution of wills;
n the testamentary capacity of the testator;

n and the due execution of the last will and testament. 9

Under the Civil Code, due execution includes a determination of whether the testator was of
sound and disposing mind at the time of its execution, that he had freely executed the will
and was not acting under duress, fraud, menace or undue influence and that the will is
genuine and not a forgery, 10 that he was of the proper testamentary age and that he is a person not
expressly prohibited by law from making a will.

11

The intrinsic validity is another matter and questions regarding the same may still be raised
even after the will has been authenticated. 12 Thus, it does not necessarily follow that an
extrinsically valid last will and testament is always intrinsically valid. Even if the will was validly executed,
if the testator provides for dispositions that deprives or impairs the lawful heirs of their legitime or rightful
inheritance according to the laws on succession, 13 the unlawful provisions/dispositions thereof cannot be
given effect. This is specially so when the courts had already determined in a final and executory decision
that the will is intrinsically void. Such determination having attained that character of finality is binding on
this Court which will no longer be disturbed. Not that this Court finds the will to be intrinsically valid, but
that a final and executory decision of which the party had the opportunity to challenge before the higher
tribunals must stand and should no longer be reevaluated. Failure to avail of the remedies provided by
law constitutes waiver. And if the party does not avail of other remedies despite its belief that it was
aggrieved by a decision or court action, then it is deemed to have fully agreed and is satisfied with the
decision or order. As early as 1918, it has been declared that public policy and sound practice demand
that, at the risk of occasional errors, judgments of courts must at some point of time fixed by

law 14 become final otherwise there will be no end to litigation. Interes rei publicae ut finis sit litium the
very object of which the courts were constituted was to put an end to controversies. 15 To fulfill this
purpose and to do so speedily, certain time limits, more or less arbitrary, have to be set up to spur on the
slothful. 16 The only instance where a party interested in a probate proceeding may have a final liquidation
set aside is when he is left out by reason of circumstances beyond his control or through mistake or
inadvertence not imputable to negligence, 17 which circumstances do not concur herein.

Petitioner was privy to the suit calling for the declaration of the intrinsic invalidity of the will,
as she precisely appealed from an unfavorable order therefrom. Although the final and
executory Order of January 30, 1986 wherein private respondents were declared as the
only heirs do not bind those who are not parties thereto such as the alleged illegitimate son
of the testator, the same constitutes res judicata with respect to those who were parties to
the probate proceedings. Petitioner cannot again raise those matters anew for relitigation
otherwise that would amount to forum-shopping. It should be remembered that forum
shopping also occurs when the same issue had already been resolved adversely by some
other court. 18 It is clear from the executory order that the estates of Alejandro and his spouse should be
distributed according to the laws of intestate succession.

Petitioner posits that the January 30, 1986 Order is merely interlocutory, hence it can still be
set aside by the trial court. In support thereof, petitioner argues that "an order merely
declaring who are heirs and the shares to which set of heirs is entitled cannot be the basis
of execution to require delivery of shares from one person to another particularly when no
project of partition has been filed." 19 The trial court declared in the January 30, 1986 Order that
petitioner is not the legal wife of Alejandro, whose only heirs are his three legitimate children (petitioners
herein), and at the same time it nullified the will. But it should be noted that in the same Order, the trial
court also said that the estate of the late spouses be distributed according to the laws of intestacy.
Accordingly, it has no option but to implement that order of intestate distribution and not to reopen and
again re-examine the intrinsic provisions of the same will.

It can be clearly inferred from Article 960 of the Civil Code, on the law of successional rights
that testacy is preferred to intestacy. 20 But before there could be testate distribution, the will must
pass the scrutinizing test and safeguards provided by law considering that the deceased testator is no
longer available to prove the voluntariness of his actions, aside from the fact that the transfer of the estate
is usually onerous in nature and that no one is presumed to give Nemo praesumitur donare. 21 No
intestate distribution of the estate can be done until and unless the will had failed to pass both its extrinsic
and intrinsic validity. If the will is extrinsically void, the rules of intestacy apply regardless of the intrinsic
validity thereof. If it is extrinsically valid, the next test is to determine its intrinsic validity that is whether
the provisions of the will are valid according to the laws of succession. In this case, the court had ruled
that the will of Alejandro was extrinsically valid but the intrinsic provisions thereof were void. Thus, the
rules of intestacy apply as correctly held by the trial court.

Furthermore, Alejandro's disposition in his will of the alleged share in the conjugal
properties of his late spouse, whom he described as his "only beloved wife", is not a valid
reason to reverse a final and executory order. Testamentary dispositions of properties not
belonging exclusively to the testator or properties which are part of the conjugal regime

cannot be given effect. Matters with respect to who owns the properties that were disposed
of by Alejandro in the void will may still be properly ventilated and determined in the
intestate proceedings for the settlement of his and that of his late spouse's estate.
Petitioner's motion for appointment as administratrix is rendered moot considering that she
was not married to the late Alejandro and, therefore, is not an heir.
WHEREFORE, the petition is DENIED and the decision appealed from is AFFIRMED.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. L-29300 June 21, 1978
PEDRO D. H. GALLANOSA, CORAZON GRECIA-GALLONOSA and ADOLFO
FORTAJADA, the deceased Pedro Gallanosa being substituted by his legal heirs,
namely his above-named widow and his children, ISIDRO GALLANOSA and LEDY
GALLANOSA, and grandchildren named IMELDA TECLA GALLANOSA and ROSARIO
BRIGIDA GALLANOSA, children of the late SIKATUNA GALLANOSA, son of Pedro
D.H. GALLONOSA, petitioners,
vs.
HON. UBALDO Y. ARCANGEL, Judge of Branch I of the Court of First Instance of
Sorsogon and FLORENTINO G. HITOSIS, CASIANO G. HITOSIS, TEOTIMO G.
HITOSIS, VICTORIO G. HITOSIS, EMILIA G. HITOSIS VDA. DE CRUZ, JOAQUIN R.
HITOSIS VDA. DE CRUZ, JOAQUIN R. HITOSIS, FLORENTINO R. HITOSIS, VIRGINIA
R. MITOSIS, DEBORAH R. HITOSIS, EDILBERTO R. HITOSIS, LEONOR R. HITOSIS,
NORMA R. HITOSIS-VILLANUEVA, LEONCIO R. HITOSIS, minors ANGEL R. HITOSIS
and RODOLFO R. HITOSIS, represented by their legal guardian and mother
LOURDES RELUCIO VDA. DE HITOSIS, PETRONA HITOSIS-BALBIDO, MODESTO
HITOSIS-GACILO, CLETO HITOSIS, AGUSTIN HITOSIS-FORTES, TOMASA HITOSISBANARES VDA. DE BORRAS, CONRADA HITOSIS-BANARES FRANCHE, RESTITUTO
HITOSIS-BANARES, DAMIAN HITOSIS-BANARES, FIDEL HITOSIS-BANARES,
SUSANA HITOSIS-BANARES RODRIGUEZ, JOSE HITOSIS, LOLITA HITOSISBANEGA, minors MILAGROS HITOSIS-BANEGA, ALICIA HITOSIS-BANEGA AND
ELISA HITOSIS-BANEGA, represented by their legal guardian and father ERNESTO
BANEGA, FELICITAS HITOSIS-PENAFLOR, GENOVEVA HITOSIS-ADRIATICO,
MANUEL HITOSIS, PEDRO HITOSIS, LIBRATA HITOSIS-BALMES, JUANITA HITOSIS-

GABITO VDA. DE GABAS, MAURA HITOSIS-GABITO VDA. DE GANOLA and LEONA

HITOSIS-GABITO GAMBA, respondents.
Haile Frivaldo for petitioners.
Joaquin R Mitosis for private respondents.

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 onehalf 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).
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 forthe 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 sixtyone 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 sixtyone 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.
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, L19872, 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
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.
Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. L-62952 October 9, 1985
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 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 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 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. 5657 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.
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 unFilipino.
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.
SO ORDERED.
G.R. No. L-17818

January 25, 1967

TIRSO T. REYES, as guardian of the minors Azucena Flordelis and Tirso, Jr., all
surnamed Reyes y Barretto, plaintiffs-appellants,
vs.
LUCIA MILAGROS BARRETTO-DATU, defendant-appellee.
Recto Law Office for plaintiff-appealant.
Deogracias T. Reyes and Associates for defendant-appellee.
REYES, J.B.L., J.:
Direct appeal from a judgment of the Court of First Instance of Bulacan, in its Civil Case No.
1084, dismissing the complaint of appellant Tirso T. Reyes and ordering the same to deliver
to the defendant-appellee, Lucia Milagros Barretto-Datu, the properties receivea by his
deceasea wife under the terms of the will of the late Bibiano Barretto, consisting of lots in
Manila, Rizal, Pampanga and Bulacan, valued at more than P200,000.
The decision appealed from sets the antecedents of the case to be as follows:
"This is an action to recover one-half share in the fishpond, located in the barrio of
San Roque, Hagonoy, Bulacan, covered by Transfer Certificate of Title No. T-13734
of the Land Records of this Province, being the share of plaintiff's wards as minor
heirs of the deceased Salud Barretto, widow of plaintiff Tirso Reyes, guardian of said
minors."
It appears that Bibiano Barretto was married to Maria Gerardo. During their lifetime they
acquired a vast estate, consisting of real properties in Manila, Pampanga, and Bulacan,
covered by Transfer Certificates of Title Nos. 41423, 22443, 8858, 32989, 31046, 27285,
6277, 6500, 2057, 6501, 2991, 57403 and 12507/T-337.
When Bibiano Barretto died on February 18, 1936, in the City of Manila, he left his share of
these properties in a will Salud Barretto, mother of plaintiff's wards, and Lucia Milagros
Barretto and a small portion as legacies to his two sisters Rosa Barretto and Felisa Barretto
and his nephew an nieces The usufruct o the fishpon situate i barrio Sa Roque

Hagonoy, Bulacan, above-mentioned, however, was reserved for his widow, Maria
Gerardo I the meantime Maria Gerardo was appointe administratrix. By virtue thereof,
she prepared a project of partition, which was signed by her in her own behalf and as
guardian of the minor Milagros Barretto. Said project of partition was approved by the Court
of First Instance of Manila on November 22, 1939. The distribution of the estate and the
delivery of the shares of the heirs followed forthwith. As a consequence, Salud Barretto took
immediate possession of her share and secured the cancellation of the original certificates
of title and the issuance of new titles in her own name.
Everything went well since then. Nobody was heard to complain of any irregularity in the
distribution of the said estate until the widow, Maria Gerardo died on March 5, 1948. Upon
her death, it was discovered that she had executed two wills, in the first of which, she
instituted Salud and Milagros, both surnamed Barretto, as her heirs; and, in the second, she
revoked the same and left all her properties in favor of Milagros Barretto alone. Thus, the
later will was allowed and the first rejected. In rejecting the first will presented by Tirso
Reyes, as guardian of the children of Salud Barretto, the lower court held that Salud was
not the daughter of the decedent Maria Gerardo by her husband Bibiano Barretto. This
ruling was appealed to the Supreme Court, which affirmed the same. 1
Having thus lost this fight for a share in the estate of Maria Gerardo, as a legitimate heir of
Maria Gerardo, plaintiff now falls back upon the remnant of the estate of the deceased
Bibiano Barretto, which was given in usufruct to his widow Maria Gerardo. Hence, this
action for the recovery of one-half portion, thereof.
This action afforded the defendant an opportunity to set up her right of ownership, not only
of the fishpond under litigation, but of all the other properties willed and delivered to Salud
Barretto, for being a spurious heir, and not entitled to any share in the estate of Bibiano
Barretto, thereby directly attacking the validity, not only of the project of partition, but of the
decision of the court based thereon as well.
The defendant contends that the Project of Partition from which Salud acquired the fishpond
in question is void ab initio and Salud Barretto did not acquire any valid title thereto, and
that the court did not acquire any jurisdiction of the person of the defendant, who was then a
minor.'
Finding for the defendant (now appellee), Milagros Barretto, the lower court declared the
project of partition submitted in the proceedings for the settlement of the estate of Bibiano
Barretto (Civil Case No. 49629 of the Court of First Instance of Manila) to be null and
void ab initio (not merely voidable) because the distributee, Salud Barretto, predecessor of
plaintiffs (now appellants), was not a daughter of the spouses Bibiano Barretto and Maria
Gerardo. The nullity of the project of partition was decreed on the basis of Article 1081 of
the Civil Code of 1889 (then in force) providing as follows: .

A partition in which a person was believed to be an heir, without being so, has been
included, shall be null and void.
The court a quo further rejected the contention advanced by plaintiffs that since Bibiano
Barretto was free to dispose of one-third (1/3) of his estate under the old Civil Code, his will
was valid in favor of Salud Barretto (nee Lim Boco) to the extent, at least, of such free part.
And it concluded that, as defendant Milagros was the only true heir of Bibiano Barretto, she
was entitled to recover from Salud, and from the latter's children and successors, all the
Properties received by her from Bibiano's estate, in view of the provisions of Article 1456 of
the new Civil Code of the Philippines establishing that property acquired by fraud or mistake
is held by its acquirer in implied trust for the real owner. Hence, as stated at the beginning of
this opinion, the Court a quo not only dismissed the plaintiffs' complaint but ordered them to
return the properties received under the project of partition previously mentioned as prayed
for in defendant Milagros Barretto's counterclaim. However, it denied defendant's prayer for
damages. Hence, this appeal interposed by both plaintiffs and defendant.
Plaintiffs-appellants correctly point out that Article 1081 of the old Civil Code has been
misapplied to the present case by the court below. The reason is obvious: Salud Barretto
admittedly had been instituted heir in the late Bibiano Barretto's last will and testament
together with defendant Milagros; hence, the partition had between them could not be one
such had with a party who was believed to be an heir without really being one, and was not
null and void under said article. The legal precept (Article 1081) does not speak of children,
or descendants, but ofheirs (without distinction between forced, voluntary or intestate ones),
and the fact that Salud happened not to be a daughter of the testator does not preclude her
being one of the heirs expressly named in his testament; for Bibiano Barretto was at liberty
to assign the free portion of his estate to whomsoever he chose. While the share ()
assigned to Salud impinged on the legitime of Milagros, Salud did not for that reason cease
to be a testamentary heir of Bibiano Barretto.
Nor does the fact that Milagros was allotted in her father's will a share smaller than her
legitime invalidate the institution of Salud as heir, since there was here no preterition, or
total ommission of a forced heir. For this reason,Neri vs. Akutin, 72 Phil. 322, invoked by
appellee, is not at all applicable, that case involving an instance of preterition or omission of
children of the testator's former marriage.
Appellee contends that the partition in question was void as a compromise on the civil
status of Salud in violation of Article 1814 of the old Civil Code. This view is erroneous,
since a compromise presupposes the settlement of a controversy through mutual
concessions of the parties (Civil Code of 1889, Article 1809; Civil Code of the Philippines,
Art. 2028); and the condition of Salud as daughter of the testator Bibiano Barretto, while
untrue, was at no time disputed during the settlement of the estate of the testator. There can
be no compromise over issues not in dispute. And while a compromise over civil status is

prohibited, the law nowhere forbids a settlement by the parties over the share that should
correspond to a claimant to the estate.
At any rate, independently of a project of partition which, as its own name implies, is merely
a proposal for distribution of the estate, that the court may accept or reject, it is the court
alone that makes the distribution of the estate and determines the persons entitled thereto
and the parts to which each is entitled (Camia vs. Reyes, 63 Phil. 629, 643; Act 190,
Section 750; Rule 90, Rules of 1940; Rule 91, Revised Rules of Court), and it is that judicial
decree of distribution, once final, that vests title in the distributees. If the decree was
erroneous or not in conformity with law or the testament, the same should have been
corrected by opportune appeal; but once it had become final, its binding effect is like that of
any other judgment in rem, unless properly set aside for lack of jurisdiction or fraud.
It is thus apparent that where a court has validly issued a decree of distribution of the
estate, and the same has become final, the validity or invalidity of the project of partition
becomes irrelevant.
It is, however, argued for the appellee that since the court's distribution of the estate of the
late Bibiano Barretto was predicated on the project of partition executed by Salud Barretto
and the widow, Maria Gerardo (who signed for herself and as guardian of the minor
Milagros Barretto), and since no evidence was taken of the filiation of the heirs, nor were
any findings of fact or law made, the decree of distribution can have no greater validity than
that of the basic partition, and must stand or fall with it, being in the nature of a judgment by
consent, based on a compromise. Saminiada vs. Mata, 92 Phil. 426, is invoked in support of
the proposition. That case is authority for the proposition that a judgment by compromise
may be set aside on the ground of mistake or fraud, upon petition filed in due time, where
petition for "relief was filed before the compromise agreement a proceeding, was
consummated" (cas. cit. at p. 436). In the case before us, however, the agreement of
partition was not only ratified by the court's decree of distribution, but actually
consummated, so much so that the titles in the name of the deceased were cancelled, and
new certificates issued in favor of the heirs, long before the decree was attacked. Hence,
Saminiada vs. Mata does not apply.
Moreover, the defendant-appellee's argument would be plausible if it were shown that the
sole basis for the decree of distribution was the project of partition. But, in fact, even without
it, the distribution could stand, since it was in conformity with the probated will of Bibiano
Barretto, against the provisions whereof no objection had been made. In fact it was the
court's duty to do so. Act 190, section 640, in force in 1939, provided: .
SEC. 640. Estate, How Administered. When a will is thus allowed, the court shall
grant letters testamentary, or letters of administration with the will annexed, and such
letters testamentary or of administration, shall extend to all the estate of the testator
in the Philippine Islands. Such estate, after the payment of just debts and expenses

of administration, shall be disposed of according to such will, so far as such will may
operate upon it; and the residue, if any, shall be disposed of as is provided by law in
cases of estates in these Islands belonging to persons who are inhabitants of
another state or country. (Emphasis supplied)
That defendant Milagros Barretto was a minor at the time the probate court distributed the
estate of her father in 1939 does not imply that the said court was without jurisdiction to
enter the decree of distribution. Passing upon a like issue, this Court ruled in Ramos vs.
Ortuzar, 89 Phil. Reports, pp. 741 and 742:
If we are to assume that Richard Hill and Marvin Hill did not formally intervene, still
they would be concluded by the result of the proceedings, not only as to their civil
status but as the distribution of the estate as well. As this Court has held in Manolo
vs. Paredes, 47 Phil. 938, "The proceeding for probate is one in rem (40 Cyc., 1265)
and the court acquires jurisdiction over all persons interested, through the publication
of the notice prescribed by section 630 C.P.C.; and any order that any be entered
therein is binding against all of them." (See also in re Estate of Johnson, 39 Phil.
156.) "A final order of distribution of the estate of a deceased person vests the title to
the land of the estate in the distributees". (Santos vs. Roman Catholic Bishop of
Nueva Caceres, 45 Phil. 895.) There is no reason why, by analogy, these salutary
doctrines should not apply to intestate proceedings.
The only instance that we can think of in which a party interested in a probate
proceeding may have a final liquidation set aside is when he is left out by reason of
circumstances beyond his control or through mistake or inadvertence not imputable
to negligence. Even then, the better practice to secure relief is reopening of the
same case by proper motion within the reglementary period, instead of an
independent action the effect of which, if successful, would be, as in the instant case,
for another court or judge to throw out a decision or order already final and executed
and reshuffle properties long ago distributed and disposed of.
It is well to observe, at this juncture, as this Court expressly declared in Reyes vs. Barretto
Datu, 94 Phil. 446 (Am'd Rec. Appeal, pp. 156, 157), that:
... It is argued that Lucia Milagros Barretto was a minor when she signed the
partition, and that Maria Gerardo was not her judicially appointed guardian. The
claim is not true. Maria Gerardo signed as guardian of the minor. (Secs. 3 and 5,
Rule 97, Rules of Court.) The mere statement in the project of partion that the
guardianship proceedings of the minor Lucia Milagros Barretto are pending in the
court, does not mean that the guardian had not yet been appointed; it meant that the
guardianship proceedings had not yet been terminated, and as a guardianship
proceedings begin with the appointment of a guardian, Maria Gerardo must have
been already appointed when she signed the project of partition. There is, therefore,

no irregularity or defect or error in the project of partition, apparent on the record of

the testate proceedings, which shows that Maria Gerardo had no power or authority
to sign the project of partition as guardian of the minor Lucia Milagros Barretto, and,
consequently, no ground for the contention that the order approving the project of
partition is absolutely null and void and may be attacked collaterally in these
proceedings.
So that it is now incontestable that appellee Milagros Barretto was not only made a party by
publication but actually appeared and participated in the proceedings through her guardian:
she, therefore, can not escape the jurisdiction of the Manila Court of First Instance which
settled her father's estate.
Defendant-appellee further pleads that as her mother and guardian (Maria Gerardo) could
not have ignored that the distributee Salud was not her child, the act of said widow in
agreeing to the oft-cited partition and distribution was a fraud on appellees rights and
entitles her to relief. In the first place, there is no evidence that when the estate of Bibiano
Barretto was judicially settled and distributed appellants' predecessor, Salud Lim Boco
Barretto to, knew that she was not Bibiano's child: so that if fraud was committed, it was the
widow, Maria Gerardo, who was solely responsible, and neither Salud nor her minor
children, appellants herein, can be held liable therefor. In the second placegranting that
there was such fraud, relief therefrom can only be obtained within 4 years from its
discovery, and the record shows that this period had elapsed long ago.
Because at the time of the distribution Milagros Barretto was only 16 years old (Exhibit 24),
she became of age five years later, in 1944. On that year, her cause of action accrued to
contest on the ground of fraud the court decree distributing her father's estate and the fouryear period of limitation started to run, to expire in 1948 (Section 43, Act. 190). In fact,
conceding that Milagros only became aware of the true facts in 1946 (Appellee's Brief, p.
27), her action still became extinct in 1950. Clearly, therefore, the action was already barred
when in August 31, 1956 she filed her counterclaim in this case contesting the decree of
distribution of Bibiano Barretto's estate.
In order to evade the statute of limitations, Milagros Barretto introduced evidence that
appellant Tirso Reyes had induced her to delay filing action by verbally promising to
reconvey the properties received by his deceased wife, Salud. There is no reliable evidence
of the alleged promise, which rests exclusively on the oral assertions of Milagros herself
and her counsel. In fact, the trial court made no mention of such promise in the decision
under appeal. Even more: granting arguendo that the promise was made, the same can not
bind the wards, the minor children of Salud, who are the real parties in interest. An
abdicative waiver of rights by a guardian, being an act of disposition, and not of
administration, can not bind his wards, being null and void as to them unless duly
authorized by the proper court (Ledesma Hermanos vs. Castro, 55 Phil. 136, 142).

In resume, we hold (1) that the partition had between Salud and Milagros Barretto in the
proceedings for the settlement of the estate of Bibiano Barretto duly approved by the Court
of First Instance of Manila in 1939, in its Civil Case No. 49629, is not void for being contrary
to either Article 1081 or 1814 of the, Civil Code of 1889; (2) that Milagros Barretto's action to
contest said partition and decree of distribution is barred by the statute of limitations; and (3)
that her claim that plaintiff-appellant guardian is a possessor in bad faith and should
account for the fruits received from the properties inherited by Salud Barretto (nee Lim
Boco) is legally untenable. It follows that the plaintiffs' action for partition of the fishpond
described in the complaint should have been given due course.
Wherefore, the decision of the Court of First Instance of Bulacan now under appeal is
reversed and set aside in so far as it orders plaintiff-appellant to reconvey to appellee
Milagros Barretto Datu the properties enumeracted in said decision, and the same is
affirmed in so far as it denies any right of said appellee to accounting. Let the records be
returned to the court of origin, with instructions to proceed with the action for partition of the
fishpond (Lot No. 4, Plan Psu-4709), covered by TCT No. T-13734 of the Office of the
Register of Deeds of Bulacan, and for the accounting of the fruits thereof, as prayed for in
the complaint No costs.