WIlls (3rd Set) Full Text

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FIRST DIVISION
[G.R. No. 38338. January 28, 1985.]
IN THE MATTER OF THE INTESTATE ESTATE OF ANDRES G. DE JESUS AND BIBIANA

ROXAS DE JESUS, SIMEON R. ROXAS & PEDRO ROXAS DE JESUS, petitioners, vs.
ANDRES R. DE JESUS, JR., respondent.
Raul S. Sison Law Office for petitioners.
Rafael Dinglasan, Jr. for heir M. Roxas.
Ledesma, Guytingco, Velasco and Associates for Ledesa and A.R. de Jesus.
SYLLABUS
1. CIVIL LAW; WILLS AND SUCCESSION; MANNER OF EXECUTION OF WILLS;

DEPARTURE FROM STRICT STATUTORY REQUIREMENTS; LIBERAL TREND FAVORED.
— This will not be the first time that this Court departs from a strict and literal
application of the statutory requirements regarding the due execution of Wills. We
should not overlook the liberal trend of the Civil Code in the manner of execution of
Wills, the purpose of which, in case of doubt is to prevent intestacy.
2. ID.; ID.; ID.; PREVAILING POLICY. — Thus, the prevailing policy is to require
satisfaction of the legal requirements in order to guard against fraud and bad faith but
without undue or unnecessary curtailment of testamentary privilege (Icasiano v.
Icasiano, 11 SCRA 422). If a Will has been executed in substantial compliance with the
formalities of the law, and the possibility of bad faith and fraud in the exercise thereof is
obviated, said Will should be admitted to probate (Rey v. Cartagena, 56 Phil. 282). If the
testator, in executing his Will, attempts to comply with all the requisites, although
compliance is not literal, it is sufficient if the objective or purpose sought to be
accomplished by such requisite is actually attained by the form followed by the testator.
3. ID.; ID.; SOLEMNITIES IN THE EXECUTION OF WILLS; PURPOSE. — The purpose of

the solemnities surrounding the execution of Wills has been expounded by this Court in
Abangan v. Abangan, 40 Phil. 476, where we ruled that: "The object of the solemnities
surrounding the execution of wills is to close the door against bad faith and fraud, to
avoid substitution of wills and testaments and to guaranty their truth and
authenticity . . ." In particular, a complete date is required to provide against such
contingencies as that of two competing Wills executed on the same day, or of a testator
becoming insane on the day on which a Will was executed (Velasco v. Lopez, 1 Phil. 720).
There is no such contingency in this case.
4. ID.; ID.; ID.; DATE IN A HOLOGRAPHIC WILL; WILL ALLOWED TO PROBATE UNDER
THE PRINCIPLE OF SUBSTANTIAL COMPLIANCE. — We have carefully reviewed the
records of this case and found no evidence of bad faith and fraud in its execution nor
was there any substitution of Wills and Testaments. There is no question that the
holographic Will of the deceased Bibiana Roxas de Jesus was entirely written, dated, and
signed by the testatrix herself and in a language known to her. There is also no question
as to its genuineness and due execution. All the children of the testatrix agree on the
genuineness of the holographic Will of their mother and that she had the testamentary
capacity at the time of the execution of said Will. The objection interposed by the
oppositor-respondent Luz Henson is that the holographic Will is fatally defective
because the date "FEB./61" appearing on the holographic Will is not sufficient
compliance with Article 810 of the Civil Code. This objection is too technical to be
entertained. As a general rule, the "date" in a holographic Will should include the day,
month, and year of its execution. However, when as in the case at bar, there is no
appearance of fraud, bad faith, undue influence and pressure and the authenticity of the
Will is established and the only issue is whether or not the date "FEB./61" appearing on
the holographic Will is a valid compliance with Article 810 of the Civil Code, probate of
the holographic Will should be allowed under the principle of substantial compliance.
DECISION
GUTIERREZ, JR., J p:
This is a petition for certiorari to set aside the order of respondent Hon. Jose C. Colayco,
Presiding Judge Court of First Instance of Manila, Branch XXI disallowing the probate of
the holographic Will of the deceased Bibiana Roxas de Jesus.
The antecedent facts which led to the filing of this petition are undisputed.
After the death of spouses Andres G. de Jesus and Bibiana Roxas de Jesus, Special
Proceeding No. 81503 entitled "In the Matter of the Intestate Estate of Andres G. de
Jesus and Bibiana Roxas de Jesus" was filed by petitioner Simeon R. Roxas, the brother of
the deceased Bibiana Roxas de Jesus.
On March 26, 1973, petitioner Simeon R. Roxas was appointed administrator. After
Letters of Administration had been granted to the petitioner, he delivered to the lower
court a document purporting to be the holographic Will of the deceased Bibiana Roxas
de Jesus.
On May 26, 1973, respondent Judge Jose Colayco set the hearing of the probate of the
holographic Will on July 21, 1973. LLphil
Petitioner Simeon R. Roxas testified that after his appointment as administrator, he

found a notebook belonging to the deceased Bibiana R. de Jesus and that on pages 21, 22,
23 and 24 thereof, a letter-will addressed to her children and entirely written and
signed in the handwriting of the deceased Bibiana R. de Jesus was found. The will is
dated "FEB./61" and states: "This is my will which I want to be respected altho it is not
written by a lawyer. . . "
The testimony of Simeon R. Roxas was corroborated by the testimonies of Pedro Roxas
de Jesus and Manuel Roxas de Jesus who likewise testified that the letter dated
"FEB./61" is the holographic Will of their deceased mother, Bibiana R. de Jesus. Both
recognized the handwriting of their mother and positively identified her signature. They
further testified that their deceased mother understood English, the language in which
the holographic Will is written, and that the date "FEB./61" was the date when said Will
was executed by their mother.
Respondent Luz R. Henson, another compulsory heir filed an "opposition to probate"

assailing the purported holographic Will of Bibiana R. de Jesus because — (a) it was not
executed in accordance with law, (b) it was executed through force, intimidation and/or
under duress, undue influence and improper pressure, and (c) the alleged testatrix acted
by mistake and or did not intend, nor could have intended the said Will to be her last
Will and testament at the time of its execution.
On August 24, 1973, respondent Judge Jose C. Colayco issued an order allowing the
probate of the holographic Will which he found to have been duly executed in
accordance with law.
Respondent Luz Roxas de Jesus filed a motion for reconsideration alleging inter alia that
the alleged holographic Will of the deceased Bibiana R. de Jesus was not dated as
required by Article 810 of the Civil Code. She contends that the law requires that the
Will should contain the day, month, and year of its execution and that this should be
strictly complied with.
On December 10, 1973, respondent Judge Colayco reconsidered his earlier order and
disallowed the probate of the holographic Will on the ground that the word "dated" has
generally been held to include the month, day, and year. The dispositive portion of the
order reads:
"WHEREFORE, the document purporting to be the holographic Will of Bibiana Roxas de
Jesus, is hereby disallowed for not having been executed as required by the law. The
order of August 24, 1973 is hereby set aside."
The only issue is whether or not the date "FEB./61" appearing on the holographic Will of
the deceased Bibiana Roxas de Jesus is a valid compliance with the Article 810 of the
Civil Code which reads:
ART. 810. A person may execute a holographic will which must be entirely written,
dated, and signed by the hand of the testator himself. It is subject to no other form, and
may be made in or out of the Philippines, and need not be witnessed."
The petitioners contend that while Article 685 of the Spanish Civil Code and Article 688
of the Old Civil Code require the testator to state in his holographic Will the "year, month,
and day of its execution," the present Civil Code omitted the phrase "Año, mes y dia" and
simply requires that the holographic Will should be dated. The petitioners submit that
the liberal construction of the holographic Will should prevail. cdrep
Respondent Luz Henson on the other hand submits that the purported holographic Will
is void for non-compliance with Article 810 of the New Civil Code in that the date must
contain the year, month, and day of its execution. The respondent contends that Article
810 of the Civil Code was patterned after Section 1277 of the California Code and Section
1588 of the Louisiana Code whose Supreme Courts had consistently ruled that the
required date includes the year, month, and day, and that if any of these is wanting, the
holographic Will is invalid. The respondent further contends that the petitioner cannot
plead liberal construction of Article 810 of the Civil Code because statutes prescribing
the formalities to be observed in the execution of holographic Wills are strictly
construed.
We agree with the petitioner.
This will not be the first time that this Court departs from a strict and literal application
of the statutory requirements regarding the due execution of Wills. We should not
overlook the liberal trend of the Civil Code in the manner of execution of Wills, the
purpose of which, in case of doubt is to prevent intestacy —
"The underlying and fundamental objectives permeating the provisions of the law on
wills in this Project consists in the liberalization of the manner of their execution with
the end in view of giving the testator more freedom in expressing his last wishes, but
with sufficient safeguards and restrictions to prevent the commission of fraud and the
exercise of undue and improper pressure and influence upon the testator.
"This objective is in accord with the modern tendency with respect to the formalities in
the execution of wills." (Report of the Code Commission, p. 103)
In Justice Capistrano's concurring opinion in Heirs of Raymundo Castro v. Bustos (27

SCRA 327) he emphasized that: LibLex
xxx xxx xxx
". . . The law has a tender regard for the will of the testator expressed in his last will and
testament on the ground that any disposition made by the testator is better than that
which the law can make. For this reason, intestate succession is nothing more than a
disposition based upon the presumed will of the decedent."
Thus, the prevailing policy is to require satisfaction of the legal requirements in order to
guard against fraud and bad faith but without undue or unnecessary curtailment of
testamentary privilege (Icasiano v. Icasiano, 11 SCRA 422). If a Will has been executed in
substantial compliance with the formalities of the law, and the possibility of bad faith
and fraud in the exercise thereof is obviated, said Will should be admitted to probate
(Rey v. Cartagena, 56 Phil. 282). Thus,
xxx xxx xxx
". . . More than anything else, the facts and circumstances of record are to be considered
in the application of any given rule. If the surrounding circumstances point to a regular
execution of the will, and the instrument appears to have been executed substantially in
accordance with the requirements of the law, the inclination should, in the absence of
any suggestion of bad faith, forgery or fraud, lean towards its admission to probate,
although the document may suffer from some imperfection of language, or other
non-essential defect . . ." (Leynez v. Leynez, 68 Phil. 745)
If the testator, in executing his Will, attempts to comply with all the requisites, although
compliance is not literal, it is sufficient if the objective or purpose sought to be
accomplished by such requisite is actually attained by the form followed by the testator.
The purpose of the solemnities surrounding the execution of Wills has been expounded
by this Court in Abangan v. Abangan, 40 Phil. 476, where we ruled that:
"The object of the solemnities surrounding the execution of wills is to close the door
against bad faith and fraud, to avoid substitution of wills and testaments and to guaranty
their truth and authenticity . . ."
In particular, a complete date is required to provide against such contingencies as that of

two competing Wills executed on the same day, or of a testator becoming insane on the
day on which a Will was executed (Velasco v. Lopez, 1 Phil. 720). There is no such
contingency in this case.
We have carefully reviewed the records of this case and found no evidence of bad faith
and fraud in its execution nor was there any substitution of Wills and Testaments. There
is no question that the holographic Will of the deceased Bibiana Roxas de Jesus was
entirely written, dated, and signed by the testatrix herself and in a language known to
her. There is also no question as to its genuineness and due execution. All the children of
the testatrix agree on the genuineness of the holographic Will of their mother and that
she had the testamentary capacity at the time of the execution of said Will. The objection
interposed by the oppositor-respondent Luz Henson is that the holographic Will is
fatally defective because the date "FEB./61" appearing on the holographic Will is not
sufficient compliance with Article 810 of the Civil Code. This objection is too technical to
be entertained. cdphil
As a general rule, the "date" in a holographic Will should include the day, month, and
year of its execution. However, when as in the case at bar, there is no appearance of
fraud, bad faith, undue influence and pressure and the authenticity of the Will is
established and the only issue is whether or not the date "FEB./61" appearing on the
holographic Will is a valid compliance with Article 810 of the Civil Code, probate of the
holographic Will should be allowed under the principle of substantial compliance.
WHEREFORE, the instant petition is GRANTED. The order appealed from is REVERSED
and SET ASIDE and the order allowing the probate of the holographic Will of the
deceased Bibiana Roxas de Jesus is reinstated.
SO ORDERED.
||| (In Re: Roxas v. De Jesus, Jr., G.R. No. 38338, [January 28, 1985], 219 PHIL 216-223)
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[G.R. No. 138842. October 18, 2000.]
NATIVIDAD P. NAZARENO, MAXIMINO P. NAZARENO, JR., petitioners, vs. COURT OF
APPEALS, ESTATE OF MAXIMINO A. NAZARENO, SR., ROMEO P. NAZARENO and
ELIZA NAZARENO, respondents.
DECISION
MENDOZA, J p:
This is a petition for review on certiorari of the decision 1 of the Court of Appeals in
CA-GR CV No. 39441 dated May 29, 1998 affirming with modifications the decision of
the Regional Trial Court, Branch 107, Quezon City, in an action for annulment of sale and
damages.
The facts are as follows:
Maximino Nazareno, Sr. and Aurea Poblete were husband and wife. Aurea died on April
15, 1970, while Maximino, Sr. died on December 18, 1980. They had five children,
namely, Natividad, Romeo, Jose, Pacifico, and Maximino, Jr. Natividad and Maximino, Jr.
are the petitioners in this case, while the estate of Maximino, Sr., Romeo, and his wife
Eliza Nazareno are the respondents.
During their marriage, Maximino Nazareno, Sr. and Aurea Poblete acquired properties in
Quezon City and in the Province of Cavite. It is the ownership of some of these
properties that is in question in this case.
It appears that after the death of Maximino, Sr., Romeo filed an intestate case in the
Court of First Instance of Cavite, Branch XV, where the case was docketed as Sp. Proc. No.
NC-28. Upon the reorganization of the courts in 1983, the case was transferred to the
Regional Trial Court of Naic, Cavite. Romeo was appointed administrator of his father's
estate.
In the course of the intestate proceedings, Romeo discovered that his parents had
executed several deeds of sale conveying a number of real properties in favor of his
sister, Natividad. One of the deeds involved six lots in Quezon City which were allegedly
sold by Maximino, Sr., with the consent of Aurea, to Natividad on January 29, 1970 for
the total amount of P47,800.00. The Deed of Absolute Sale reads as follows:
DEED OF ABSOLUTE SALE

KNOW ALL MEN BY THESE PRESENTS:
I, MAXIMINO A. NAZARENO, Filipino, married to Aurea Poblete-Nazareno, of legal age

and a resident of the Mun. of Naic, Prov. of Cavite, Philippines,
-W I T N E S S E T H-
That I am the absolute registered owner of six (6) parcels of land with the
improvements thereon situated in Quezon City, Philippines, which parcels of land are
herewith described and bounded as follows, to wit:
"TRANS. CERT. OF TITLE NO. 140946"
"A parcel of land (Lot 3-B of the subdivision plan Bsd-47404, being a portion of Lot 3,
Block D-3 described on plan Bsd-10642, G.L.R.O. Record No. ) situated in the Quirino
District, Quezon City. Bounded on the N., along line 1-2 by Lot 15, Block D-3 of plan
Bsd-10642; along line 2-3 by Lot 4, Block D-3 of plan Bsd-10642; along line 3-4 by
Aurora Boulevard (Road Lot-1, Bsd-10642); and along line 4-1 by Lot 3-D of the
subdivision plan. Beginning at a point marked "1" on plan, being S.29 deg. 26'E., 1156.22
m. from B.L.L.M. 9, Quezon City,
thence N. 79 deg. 53'E., 12.50 m. to point 2;
thence S. 10 deg. 07'E., 40.00 m. to point 3;
thence S. 79 deg. 53'W., 12.50 m. to point 4;
thence N. 10 deg. 07'W., 40.00 m. to the point
of beginning; containing an area of FIVE HUNDRED (500) SQUARE METERS. All points
referred to are indicated on the plan and are marked on the ground as follows: points
"1" and "4" by P.L.S. Cyl. Conc. Mons. bearings true; date of the original survey, April
8-July 15, 1920 and that of the subdivision survey, March 25, 1956."

"A parcel of land (lot 3, Block 93 of the subdivision plan Psd-57970 being a portion of
Lot 6, Pcs-4786, G.L.R.O. Rec. No. 917) situated in Quirino District Quezon City. Bounded
on the NW., along line 1-2, by Lot 1, Block 93; on the NE., along line 2-3, by Road Lot 101;
on the SE., along line 3-4, by Road Lot 100; on the SW., along line 4-1, by Lot 4, Block 93;
all of the subdivision plan. Beginning at point marked "1" on plan, being S. 65 deg. 40'
3339.92 m. from B.L.L.M. No. 1, Marikina, Rizal;
thence N. 23 deg. 28 min. E., 11.70 m. to point "2";
thence S. 66 deg. 32 min. E., 18.00 m. to point "3";
thence S. 23 deg. 28 min. W., 11.70 m. to point "4";
thence N. 66 deg. 32. min. W., 18.00 m. to the point
of beginning; containing an area of TWO HUNDRED TEN SQUARE METERS AND SIXTY
SQUARE DECIMETERS (210.60). All points referred to are indicated on the plan and are
marked on the ground by B.L. Cyl. Conc. Mons. 15 x 60 cm.; bearings true; date of the
original survey, Nov. 10, 1920 and Jan. 31-March 31, 1924 and that of the subdivision
survey, February 1 to September 30, 1954. Date approved — March 9, 1962."
"A parcel of land (Lot No. 10, of the consolidation and subdivision plan Pcs-988, being a
portion of the consolidated Lot No. 26, Block No. 6, Psd-127, and Lots Nos. 27-A and
27-B, Psd- 14901, G.L.R.O. Record No. 917), situated in the District of Cubao, Quezon City,
Island of Luzon. Bounded on the NE., by Lot No. 4 of the consolidation and subdivision
plan; on the SE., by Lot No. 11 of the consolidation and subdivision plan; on the SW., by
Lot No. 3 of the consolidation and subdivision plan; and on the NW., by Lot No. 9 of the
consolidation and subdivision plan. Beginning at a point marked "1" on the plan, being S.
7 deg. 26' W., 4269.90 m. more or less from B.L.L.M. No. 1, Mp. of Mariquina;
thence S. 25 deg. 00'E., 12.00 m. to point "2";
thence S. S4 deg. 59'W., 29.99 m. to point "3";
thence N. 25 deg. 00'W., 12.00 m to point "4";

thence N. 64 deg. 59'E., 29.99 m. to the point of
beginning; containing an area of THREE HUNDRED SIXTY SQUARE METERS (360), more
or less. All points referred to are indicated on the plan and on the ground are marked by
P.L.S. Conc. Mons. 15 x 60 cm.; bearings true; declination 0 deg. 50'E., date of the original
survey, April 8 to July 15, 1920, and that of the consolidation and subdivision survey,
April 24 to 26, 1941."
"A parcel of land (Lot No. 11, of the consolidation and subdivision; plan Pcs-988, being a
27-B, Psd-14901, G.L.R.O. Record No. 917), situated in the District of Cubao, Quezon City,
plan; on the SE., by Lot No. 12 of the consolidation and subdivision plan; on the SW., by
Lot No. 3 of the consolidation and subdivision plan; on the NW., by Lot No. 10 of the
consolidation and subdivision plan. Beginning at a point marked "1" on plan, being S. 79
deg. 07'W., 4264.00 m. more or less from B.L.L.M. No. 1, Mp. of Mariquina;
thence S. 64 deg. 59'W., 29.99 m. to point "2";
thence N. 25 deg. 00'W., 12.00 m. to point "3";
thence N. 64 deg. 59'E., 29.99 m. to point "4";
thence S. 26 deg. 00'E., 12.00 m. to the point of
or less. All points referred to are indicated on the plan and on the ground, are marked by
P.L.S. Conc. Mons. 15 x 60 cm.; bearings true; declination 0 deg. 50'E.; date of the original
April 24 to 26, 1941."
"A parcel of land (Lot No. 13 of the consolidation and subdivision plan Pcs-988, being a
plan; on the SE., by Lot No. 14, of the consolidation, and subdivision plan; on the SW., by
Lot No. 3 of the consolidation and subdivision plan; and on the NW., by Lot No. 12, of the
consolidation and subdivision plan. Beginning at the point marked "1" on plan, being S.
78 deg. 48' W., 4258.20 m. more or less from B.L.L.M. No. 1, Mp. of Mariquina;
thence N. 25 deg. 00'W., 12.00 m. to point "3";
thence N. 64 deg. 59'E., 29.99 m. to point "4";
thence S.25 deg. 00'E., 12.00 m. to point of
beginning; containing an area of THREE HUNDRED SIXTY SQUARE METERS (360, more
P.L.S. Conc Mons. 15 x 60 cm.; bearings true; declination 0 deg. 50'E., date of the original
April 24 to 26, 1941."
"A parcel of land (Lot No. 14, of the consolidation and subdivision plan Pcs-988, being a
plan; on the SE., by Lot No. 15, of the consolidation and subdivision plan; on the SW., by
Lot No. 3 of the consolidation and subdivision plan; and on the NW., by Lot No. 13 of the
consolidation and subdivision plan. Beginning at the point marked "1" on plan, being
S.78 deg. 48' W., 4258.20 m. more or less from B.L.L.M. No. 1, Mp. of Mariquina;
thence S. 25 deg. 00'E., 12.00 m. to point "2";
thence N. 64 deg. 58'E., 30.00 m. to the point of
P.L.S. Conc. Mons. 15 x 60 cm.; bearings true; declination 0 deg. 50'E., date of the original
April 24 to 26, 1941." ADCETI
That for and in consideration of the sum of FORTY-THREE THOUSAND PESOS

(P43,000.00) PHILIPPINE CURRENCY, to me in hand paid by NATIVIDAD P. NAZARENO,
Filipino, single, of legal age and a resident of the Mun. of Naic, Prov. of Cavite, Philippines,
the receipt whereof is acknowledged to my entire satisfaction, I do hereby CEDE, SELL,
TRANSFER, CONVEY and ASSIGN unto the said Natividad P. Nazareno, her heirs,
administrators and assigns, all my title, rights, interests and participations to the above
described parcels of land with the improvements thereon, with the exception of LOT NO.
11 COVERED BY T.C.T. NO. 118886, free of any and all liens and encumbrances; and
That for and in consideration of the sum of FOUR THOUSAND EIGHT HUNDRED PESOS
(P4,800.00) PHILIPPINE CURRENCY, to me in hand paid by NATIVIDAD P. NAZARENO,
Filipino, single, of legal age and a resident of the Mun. of Naic, Prov. of Cavite, Philippines,
the receipt whereof is acknowledged to my entire satisfaction, I do hereby CEDE, SELL,
TRANSFER, CONVEY and ASSIGN unto the said Natividad P. Nazareno, her heirs,
administrators and assigns, all my title, rights, interests and participations in and to Lot
No. 11 covered by T.C.T. No. 118886 above-described, free of any and all liens and
encumbrances, with the understanding that the title to be issued in relation hereto shall
be separate and distinct from the title to be issued in connection with Lots Nos. 13 and
14, although covered by the same title.
IN WITNESS WHEREOF, I have hereunto signed this deed of absolute sale in the City of
Manila, Philippines, this 29th day of January, 1970. 2
By virtue of this deed, transfer certificates of title were issued to Natividad, to wit: TCT
No. 162738 (Lot 3-B), 3 TCT No. 162739 (Lot 3), 4 TCT No. 162735 (Lot 10), 5 TCT No.
162736 (Lot 11), 6 and TCT No. 162737 (Lots 13 and 14), 7 all of the Register of Deeds
of Quezon City.
Among the lots covered by the above Deed of Sale is Lot 3-B which is registered under
TCT No. 140946. This lot had been occupied by Romeo, his wife Eliza, and by Maximino,
Jr. since 1969. Unknown to Romeo, Natividad sold Lot 3-B on July 31, 1982 to Maximino,
Jr., 8 for which reason the latter was issued TCT No. 293701 by the Register of Deeds of
Quezon City. 9
When Romeo found out about the sale to Maximino, Jr., he and his wife Eliza locked
Maximino, Jr. out of the house. On August 4, 1983, Maximino, Jr. brought an action for
recovery of possession and damages with prayer for writs of preliminary injunction and
mandatory injunction with the Regional Trial Court of Quezon City. On December 12,
1986, the trial court ruled in favor of Maximino, Jr. In CA-G.R. CV No. 12932, the Court of
Appeals affirmed the decision of the trial court. 10
On June 15, 1988, Romeo in turn filed, on behalf of the estate of Maximino, Sr., the
present case for annulment of sale with damages against Natividad and Maximino, Jr.
The case was filed in the Regional Trial Court of Quezon City, where it was docketed as
Civil Case No. 88-58. 11 Romeo sought the declaration of nullity of the sale made on
January 29, 1970 to Natividad and that made on July 31, 1982 to Maximino, Jr. on the
ground that both sales were void for lack of consideration.
On March 1, 1990, Natividad and Maximino, Jr. filed a third-party complaint against the
spouses Romeo and Eliza. 12 They alleged that Lot 3, which was included in the Deed of
Absolute Sale of January 29, 1970 to Natividad, had been surreptitiously appropriated
by Romeo by securing for himself a new title (TCT No. 277968) in his name. 13 They
alleged that Lot 3 is being leased by the spouses Romeo and Eliza to third persons. They
therefore sought the annulment of the transfer to Romeo and the cancellation of his title,
the eviction of Romeo and his wife Eliza and all persons claiming rights from Lot 3, and
the payment of damages.
The issues having been joined, the case was set for trial. Romeo presented evidence to
show that Maximino and Aurea Nazareno never intended to sell the six lots to Natividad
and that Natividad was only to hold the said lots in trust for her siblings. He presented
the Deed of Partition and Distribution dated June 28, 1962 executed by Maximino Sr.
and Aurea and duly signed by all of their children, except Jose, who was then abroad and
was represented by their mother, Aurea. By virtue of this deed, the nine lots subject of
this Deed of Partition were assigned by raffle as follows:
1. Romeo — Lot 25-L (642 m2)
2. Natividad — Lots 23 (312 m2) and 24 (379 m2)
3. Maximino, Jr. — Lots 6 (338 m2) and 7 (338 m2)
4. Pacifico — Lots 13 (360 m2) and 14 (360 m2)
5. Jose — Lots 10 (360 m2) and 11 (360 m2)
Romeo received the title to Lot 25-L under his name, 14 while Maximino, Jr. received
Lots 6 and 7 through a Deed of Sale dated August 16, 1966 for the amount of P9,500.00.
15 Pacifico and Jose's shares were allegedly given to Natividad, who agreed to give Lots
10 and 11 to Jose, in the event the latter came back from abroad. Natividad's share, on
the other hand, was sold to third persons 16 because she allegedly did not like the
location of the two lots. But, Romeo said, the money realized from the sale was given to
Natividad.
Romeo also testified that Lot 3-B was bought for him by his father, while Lot 3 was sold
to him for P7,000.00 by his parents on July 4, 1969. 17 However, he admitted that a
document was executed by his parents transferring six properties in Quezon City, i.e.,
Lots 3, 3-B, 10, 11, 13, and 14, to Natividad.
Romeo further testified that, although the deeds of sale executed by his parents in their
favor stated that the sale was for a consideration, they never really paid any amount for
the supposed sale. The transfer was made in this manner in order to avoid the payment
of inheritance taxes. 18 Romeo denied stealing Lot 3 from his sister but instead claimed
that the title to said lot was given to him by Natividad in 1981 after their father died.
Natividad and Maximino, Jr. claimed that the Deed of Partition and Distribution executed
in 1962 was not really carried out. Instead, in December of 1969, their parents offered to
sell to them the six lots in Quezon City, i.e., Lots 3, 3-B, 10, 11, 13 and 14. However, it
was only Natividad who bought the six properties because she was the only one
financially able to do so. Natividad said she sold Lots 13 and 14 to Ros-Alva Marketing
Corp. 19 and Lot 3-B to Maximino, Jr. for P175,000.00. 20 Natividad admitted that
Romeo and the latter's wife were occupying Lot 3-B at that time and that she did not tell
the latter about the sale she had made to Maximino, Jr.
Natividad said that she had the title to Lot 3 but it somehow got lost. She could not get
an original copy of the said title because the records of the Registrar of Deeds had been
destroyed by fire. She claimed she was surprised to learn that Romeo was able to obtain
a title to Lot 3 in his name.
Natividad insisted that she paid the amount stated in the Deed of Absolute Sale dated
January 29, 1970. She alleged that their parents had sold these properties to their
children instead of merely giving the same to them in order to impose on them the value
of hardwork.
Natividad accused Romeo of filing this case to harass her after Romeo lost in the action
for recovery of possession (Civil Case No. Q-39018) which had been brought against him
by Maximino, Jr. It appears that before the case filed by Romeo could be decided, the
Court of Appeals rendered a decision in CA-GR CV No. 12932 affirming the trial court's
decision in favor of Maximino, Jr.
On August 10, 1992, the trial court rendered a decision, the dispositive portion of which
states:
WHEREFORE, judgment is hereby rendered declaring the nullity of the Deed of Sale
dated January 29, 1970. Except as to Lots 3, 3-B, 13 and 14 which had passed on to third
persons, the defendant Natividad shall hold the rest in trust for Jose Nazareno to whom
the same had been adjudicated. The Register of Deeds of Quezon City is directed to
annotate this judgment on Transfer Certificate of Titles Nos. 162735 and 162736 as a
lien in the titles of Natividad P. Nazareno.
The defendants' counterclaim is dismissed. Likewise, the third-party complaint is

dismissed.
The defendants are hereby directed to pay to the plaintiff jointly and severally the sum
of P30,000 as and for attorney's fees. Likewise, the third-party plaintiff is directed to pay
the third-party defendant's attorney's fees of P20,000.
All other claims by one party against the other are dismissed.
SO ORDERED. 21
Natividad and Maximino, Jr. filed a motion for reconsideration. As a result, on October
14, 1992 the trial court modified its decision as follows:
WHEREFORE, the plaintiff's Partial Motion for Reconsideration is hereby granted. The
judgment dated August 10, 1992 is hereby amended, such that the first paragraph of its
dispositive portion is correspondingly modified to read as follows:
"WHEREFORE, judgment is hereby rendered declaring the nullity of the Deeds of Sale
dated January 29, 1970 and July 31, 1982.
"Except as to Lots 3, 13 and 14 which had passed on to third person, the defendant
Natividad shall hold the rest OF THE PROPERTIES COVERED BY THE DEED OF SALE
DATED JANUARY 29, 1970 (LOTS 10 and 11) in trust for Jose Nazareno to whom the
same had been adjudicated.
"The Register of Deeds of Quezon City is directed to annotate this judgment on Transfer
Certificates of Title No. 162735 and 162736 as a lien on the titles of Natividad P.
Nazareno.
"LIKEWISE, THE SAID REGISTER OF DEEDS IS DIRECTED TO CANCEL TCT NO. 293701
(formerly 162705) OVER LOT 3-B AND RESTORE TCT NO. 140946 IN THE NAME OF
MAXIMINO NAZARENO SR. AND AUREA POBLETE." 22
On appeal to the Court of Appeals, the decision of the trial court was modified in the
sense that titles to Lot 3 (in the name of Romeo Nazareno) and Lot 3-B (in the name of
Maximino Nazareno, Jr.), as well as to Lots 10 and 11 were cancelled and ordered
restored to the estate of Maximino Nazareno, Sr. The dispositive portion of the decision
dated May 29, 1998 reads:
WHEREFORE, the appeal is GRANTED. The decision and the order in question are
modified as follows:
1. The Deed of Absolute Sale dated 29 January 1970 and the Deed of Absolute Sale dated
31 July 1982 are hereby declared null and void;
2. Except as to Lots 13 and 14 ownership of which has passed on to third persons, it is

hereby declared that Lots 3, 3-B, 10 and 11 shall form part of the estate of the deceased
Maximino Nazareno, Sr.;
3. The Register of Deeds of Quezon City is hereby ordered to restore TCT No. 140946
(covering Lot 3-B), TCT No. 132019 (covering Lot 3), TCT No. 118885 (covering Lot 10),
and TCT No. 118886 (covering Lot 11). 23
Petitioners filed a motion for reconsideration but it was denied in a resolution dated
May 27, 1999. Hence this petition. TDSICH
Petitioners raise the following issues:
1. WHETHER OR NOT THE UNCORROBORATED TESTIMONY OF PRIVATE RESPONDENT

ROMEO P. NAZARENO CAN DESTROY THE FULL FAITH AND CREDIT ACCORDED TO
NOTARIZED DOCUMENTS LIKE THE DEED OF ABSOLUTE SALE DATED JANUARY 29,
1970 (EXH. 1) EXECUTED BY THE DECEASED SPOUSES MAXIMINO A. NAZARENO, SR.
AND AUREA POBLETE IN FAVOR OF PETITIONER NATIVIDAD P. NAZARENO.
2. WHETHER OR NOT THE RESPONDENT COURT GROSSLY MISAPPRECIATED THE

FACTS OF THE CASE WITH RESPECT TO THE VALIDITY OF THE SAID DEED OF
ABSOLUTE SALE DATED JANUARY 29, 1970 (EXH. 1) IN THE LIGHT OF THE
FOLLOWING:
A) THE DOCUMENTARY EVIDENCE, ALL OF WHICH ARE NOTARIZED, EXECUTED BY
THE DECEASED SPOUSES DURING THEIR LIFETIME INVOLVING SOME OF THEIR
CONJUGAL PROPERTIES.
B) THE EXECUTION OF AN EXTRA-JUDICIAL PARTITION WITH WAIVER OF RIGHTS

AND CONFIRMATION OF SALE DATED MAY 24, 1975 (EXH. 14A) OF THE ESTATE OF
AUREA POBLETE BY THE DECEASED MAXIMINO A. NAZARENO, SR. AND THEIR
CHILDREN INVOLVING THE ONLY REMAINING ESTATE OF AUREA POBLETE THUS
IMPLIEDLY ADMITTING THE VALIDITY OF PREVIOUS DISPOSITIONS MADE BY SAID
DECEASED SPOUSES ON THEIR CONJUGAL PROPERTIES, HALF OF WHICH WOULD
HAVE BECOME A PART OF AUREA POBLETE'S ESTATE UPON HER DEMISE.
C) THE ADMISSION MADE BY MAXIMINO A. NAZARENO, SR. IN HIS TESTIMONY IN

OPEN COURT ON AUGUST 13, 1980 DURING HIS LIFETIME IN CIVIL CASE NO. NC-712
(EXH. 81, 81B) THAT HE HAD SOLD CERTAIN PROPERTIES IN FAVOR OF NATIVIDAD P.
NAZARENO THUS BELYING THE CLAIM OF ROMEO P. NAZARENO THAT THE DEED OF
ABSOLUTE SALE DATED JANUARY 29, 1970 IS ONE AMONG THE DOCUMENTS
EXECUTED BY THE DECEASED SPOUSES TO BE WITHOUT CONSIDERATION.
D) THE ADMISSIONS MADE BY ROMEO P. NAZARENO HIMSELF CONTAINED IN A FINAL

DECISION OF THE RESPONDENT COURT IN CA-GR CV NO. 12932 DATED AUGUST 31,
1992 AND AN ANNEX APPEARING IN HIS ANSWER TO THE COMPLAINT IN CIVIL CASE
NO. Q-39018 (EXH. 11-B) INVOLVING LOT 3B, ONE OF THE PROPERTIES IN QUESTION
THAT THE SAID PROPERTY IS OWNED BY PETITIONER NATIVIDAD P. NAZARENO.
E) THE PARTIAL PROJECT OF PARTITION DATED MAY 24, 1995 WHICH WAS
APPROVED BY THE INTESTATE COURT IN SP. PROC. NO. NC-28 AND EXECUTED IN
ACCORDANCE WITH THE LATTER COURT'S FINAL ORDER DATED JULY 9, 1991
DETERMINING WHICH WERE THE REMAINING PROPERTIES OF THE ESTATE.
3. WHETHER OR NOT THE DEED OF ABSOLUTE SALE DATED JANUARY 29, 1970
EXECUTED BY THE DECEASED SPOUSES MAXIMINO A. NAZARENO, SR. AND AUREA
POBLETE DURING THEIR LIFETIME INVOLVING THEIR CONJUGAL PROPERTIES IS AN
INDIVISIBLE CONTRACT? AND IF SO WHETHER OR NOT UPON THEIR DEATH, THE
ESTATE OF MAXIMINO A. NAZARENO, SR. ALONE CAN SEEK THE ANNULMENT OF SAID
SALE?
4. WHETHER OR NOT THE SALE OF LOT 3 UNDER THE DEED OF ABSOLUTE SALE
DATED JANUARY 29, 1970 IN FAVOR OF PETITIONER NATIVIDAD P. NAZARENO, IS
VALID CONSIDERING THAT AS PER THE ORDER OF THE LOWER COURT DATED
NOVEMBER 21, 1990. ROMEO NAZARENO ADMITTED THAT HE DID NOT PAY THE
CONSIDERATION STATED IN THE DEED OF ABSOLUTE SALE DATED JULY 4, 1969
EXECUTED BY THE DECEASED SPOUSES IN HIS FAVOR (EXH. M-2).
5. WHETHER OR NOT AS A CONSEQUENCE, THE TITLE ISSUED IN THE NAME OF

ROMEO P. NAZARENO, TCT NO. 277968 (EXH. M) SHOULD BE CANCELLED AND
DECLARED NULL AND VOID AND A NEW ONE ISSUED IN FAVOR OF NATIVIDAD P.
NAZARENO PURSUANT TO THE DEED OF ABSOLUTE SALE EXECUTED IN THE
LATTER'S FAVOR ON JANUARY 29, 1970 BY THE DECEASED SPOUSES. 24
We find the petition to be without merit.
First. Petitioners argue that the lone testimony of Romeo is insufficient to overcome the
presumption of validity accorded to a notarized document.
To begin with, the findings of fact of the Court of Appeals are conclusive on the parties
and carry even more weight when these coincide with the factual findings of the trial
court. This Court will not weigh the evidence all over again unless there is a showing
that the findings of the lower court are totally devoid of support or are clearly erroneous
so as to constitute serious abuse of discretion. 25 The lone testimony of a witness, if
credible, is sufficient. In this case, the testimony of Romeo that no consideration was
ever paid for the sale of the six lots to Natividad was found to be credible both by the
trial court and by the Court of Appeals and it has not been successfully rebutted by
petitioners. We, therefore, have no reason to overturn the findings by the two courts
giving credence to his testimony.
The fact that the deed of sale was notarized is not a guarantee of the validity of its
contents. As held in Suntay v. Court of Appeals: 26
Though the notarization of the deed of sale in question vests in its favor the
presumption of regularity, it is not the intention nor the function of the notary public to
validate and make binding an instrument never, in the first place, intended to have any
binding legal effect upon the parties thereto. The intention of the parties still and always
is the primary consideration in determining the true nature of a contract.
Second. Petitioners make capital of the fact that in C.A.-G.R. CV No. 12932, which was
declared final by this Court in G.R. No. 107684, the Court of Appeals upheld the right of
Maximino, Jr. to recover possession of Lot 3-B. In that case, the Court of Appeals held:
As shown in the preceding disquisition, Natividad P. Nazareno acquired the property in

dispute by purchase in 1970. She was issued Transfer Certificate of Title No. 162738 of
the Registry of Deeds of Quezon City. When her parents died, her mother Aurea
Poblete-Nazareno in 1970 and her father Maximino A. Nazareno, Sr. in 1980, Natividad P.
Nazareno had long been the exclusive owner of the property in question. There was no
way therefore that the aforesaid property could belong to the estate of the spouses
Maximino Nazareno, Sr. and Aurea Poblete. The mere fact that Romeo P. Nazareno
included the same property in an inventory of the properties of the deceased Maximino
A. Nazareno, Sr. will not adversely affect the ownership of the said realty. Appellant
Romeo P. Nazareno's suspicion that his parents had entrusted all their assets under the
care and in the name of Natividad P. Nazareno, their eldest living sister who was still
single, to be divided upon their demise to all the compulsory heirs, has not progressed
beyond mere speculation. His barefaced allegation on the point not only is without any
corroboration but is even belied by documentary evidence. The deed of absolute sale
(Exhibit "B"), being a public document (Rule 132) Secs. 19 and 23 Revised Rules on
Evidence), is entitled to great weight; to contradict the same, there most be evidence
that is clear, convincing and more than merely preponderant (Yturralde vs. Aganon, 28
SCRA 407; Favor vs. Court of Appeals, 194 SCRA 308). Defendants-appellants' own
conduct disproves their claim of co-ownership over the property in question. Being
themselves the owner of a ten-unit apartment building along Stanford St., Cubao,
Quezon City, defendants-appellants, in a letter of demand to vacate addressed to their
tenants (Exhibits "P", "P-1" and "P-2") in said apartment, admitted that the house and lot
located at No. 979 Aurora Blvd., Quezon City where they were residing did not belong to
them. Also, when they applied for a permit to repair the subject property in 1977) they
stated that the property belonged to and was registered in the name of Natividad P.
Nazareno. Among the documents submitted to support their application for a building
permit was a copy of TCT No. 162738 of the Registry of Deeds of Quezon City in the
name of Natividad Nazareno (Exhibit "O" and submarkings; tsn, March 15, 1985, pp. 4-5).
27
To be sure, that case was for recovery of possession based on ownership of Lot 3-B. The
parties in that case were Maximino, Jr., as plaintiff, and the spouses Romeo and Eliza, as
defendants. On the other hand, the parties in the present case for annulment of sale are
the estate of Maximino, Sr., as plaintiff, and Natividad and Maximino, Jr., as defendants.
Romeo and Eliza were named third-party defendants after a third-party complaint was
filed by Natividad and Maximino, Jr. As already stated, however, this third-party
complaint concerned Lot 3, and not Lot 3-B.
The estate of a deceased person is a juridical entity that has a personality of its own. 28
Though Romeo represented at one time the estate of Maximino, Sr., the latter has a
separate and distinct personality from the former. Hence, the judgment in CA-GR CV No.
12932 regarding the ownership of Maximino, Jr. over Lot 3-B binds Romeo and Eliza
only, and not the estate of Maximino, Sr., which also has a right to recover properties
which were wrongfully disposed.
Furthermore, Natividad's title was clearly not an issue in the first case. In other words,
the title to the other five lots subject of the present deed of sale was not in issue in that
case. If the first case resolved anything, it was the ownership of Maximino, Jr. over Lot
3-B alone.
Third. Petitioners allege that, as shown by several deeds of sale executed by Maximino,
Sr. and Aurea during their lifetime, the intention to dispose of their real properties is
clear. Consequently, they argue that the Deed of Sale of January 29, 1970 should also be
deemed valid.
This is a non-sequitur. The fact that other properties had allegedly been sold by the
spouses Maximino, Sr. and Aurea does not necessarily show that the Deed of Sale made
on January 29, 1970 is valid.
Romeo does not dispute that their parents had executed deeds of sale. The question,
however, is whether these sales were made for a consideration. The trial court and the
Court of Appeals found that the Nazareno spouses transferred their properties to their
children by fictitious sales in order to avoid the payment of inheritance taxes.
Indeed, it was found both by the trial court and by the Court of Appeals that Natividad
had no means to pay for the six lots subject of the Deed of Sale.
All these convince the Court that Natividad had no means to pay for all the lots she
purportedly purchased from her parents. What is more, Romeo's admission that he did
not pay for the transfer to him of Lots 3 and 25-L despite the considerations stated in
the deed of sale is a declaration against interest and must ring with resounding truth.
The question is, why should Natividad be treated any differently, i.e., with consideration
for the sale to her, when she is admittedly the closest to her parents and the one staying
with them and managing their affairs? It just seems without reason. Anyway, the Court
is convinced that the questioned Deed of Sale dated January 29, 1970 (Exh. "A" or "1") is
simulated for lack of consideration, and therefore ineffective and void. 29
In affirming this ruling, the Court of Appeals said:
Facts and circumstances indicate badges of a simulated sale which make the Deed of
Absolute Sale dated 29 January 1970 void and of no effect. In the case of Suntay vs. Court
of Appeals (251 SCRA 430 [1995]), the Supreme Court held that badges of simulation
make a deed of sale null and void since parties thereto enter into a transaction to which
they did not intend to be legally bound.
It appears that it was the practice in the Nazareno family to make simulated transfers of
ownership of real properties to their children in order to avoid the payment of
inheritance taxes. Per the testimony of Romeo, he acquired Lot 25-L from his parents
through a fictitious or simulated sale wherein no consideration was paid by him. He
even truthfully admitted that the sale of Lot 3 to him on 04 July 1969 (Deed of Absolute
Sale, Records, Vol. II, p. 453) likewise had no consideration. This document was signed
by the spouses Max, Sr. and Aurea as vendors while defendant-appellant Natividad
signed as witness. 30
Fourth. Petitioners argue further:
The Deed of Absolute Sale dated January 29, 1970 is an indivisible contract founded on
an indivisible obligation. As such, it being indivisible, it can not be annulled by only one
of them. And since this suit was filed only by the estate of Maximino A. Nazareno, Sr.
without including the estate of Aurea Poblete, the present suit must fail. The estate of
Maximino A. Nazareno, Sr. can not cause its annulment while its validity is sustained by
the estate of Aurea Poblete. 31
An obligation is indivisible when it cannot be validly performed in parts, whatever may

be the nature of the thing which is the object thereof. The indivisibility refers to the
prestation and not to the object thereof. 32 In the present case, the Deed of Sale of
January 29, 1970 supposedly conveyed the six lots to Natividad. The obligation is clearly
indivisible because the performance of the contract cannot be done in parts, otherwise
the value of what is transferred is diminished. Petitioners are therefore mistaken in
basing the indivisibility of a contract on the number of obligors.
In any case, if petitioners' only point is that the estate of Maximino, Sr. alone cannot
contest the validity of the Deed of Sale because the estate of Aurea has not yet been
settled, the argument would nonetheless be without merit. The validity of the contract
can be questioned by anyone affected by it. 33 A void contract is inexistent from the
beginning. Hence, even if the estate of Maximino, Sr. alone contests the validity of the
sale, the outcome of the suit will bind the estate of Aurea as if no sale took place at all.
Fifth. As to the third-party complaint concerning Lot 3, we find that this has been passed
upon by the trial court and the Court of Appeals. As Romeo admitted, no consideration
was paid by him to his parents for the Deed of Sale. Therefore, the sale was void for
having been simulated. Natividad never acquired ownership over the property because
the Deed of Sale in her favor is also void for being without consideration and title to Lot
3 cannot be issued in her name.
Nonetheless, it cannot be denied that Maximino, Sr. intended to give the six Quezon City
lots to Natividad. As Romeo testified, their parents executed the Deed of Sale in favor of
Natividad because the latter was the only "female and the only unmarried member of
the family." 34 She was thus entrusted with the real properties in behalf of her siblings.
As she herself admitted, she intended to convey Lots 10 and 11 to Jose in the event the
latter returned from abroad. There was thus an implied trust constituted in her favor.
Art. 1449 of the Civil Code states:
There is also an implied trust when a donation is made to a person but it appears that
although the legal estate is transmitted to the donee, he nevertheless is either to have no
beneficial interest or only a part thereof.
There being an implied trust, the lots in question are therefore subject to collation in
accordance with Art. 1061 which states:
Every compulsory heir, who succeeds with other compulsory heirs, must bring into the
mass of the estate any property or right which he may have received from the decedent,
during the lifetime of the latter, by way of donation, or any other gratuitous title, in
order that it may be computed in the determination of the legitime of each heir, and in
the account of the partition.
As held by the trial court, the sale of Lots 13 and 14 to Ros-Alva Marketing, Corp. on
April 20, 1979 35 will have to be upheld for Ros-Alva Marketing is an innocent
purchaser for value which relied on the title of Natividad. The rule is settled that "every
person dealing with registered land may safely rely on the correctness of the certificate
of title issued therefor and the law will in no way oblige him to go behind the certificate
to determine the condition of the property." 36 DHacTC
WHEREFORE, the decision of the Court of Appeals is AFFIRMED.
SO ORDERED.
Bellosillo, Quisumbing, and De Leon, Jr., JJ., concur.
Buena, J., Took no part.
||| (Nazareno v. Court of Appeals, G.R. No. 138842, [October 18, 2000], 397 PHIL
707-730)
(4PAGES)
FIRST DIVISION
[G.R. Nos. 75005-06. February 15, 1990.]
JOSE RIVERA, petitioner, vs. INTERMEDIATE APPELLATE COURT and ADELAIDO J.

RIVERA, respondents.
Lorenzo O. Navarro, Jr. for petitioner.
Regalado P. Morales for private respondent.
SYLLABUS
1. REMEDIAL LAW; EVIDENCE; DISPUTABLE PRESUMPTIONS; COUPLE LIVING

TOGETHER AS HUSBAND AND WIFE FOR MANY YEARS, PRESUMED MARRIED. — It is
true that Adelaido could not present his parents' marriage certificate because, as he
explained it, the marriage records for 1942 in the Mabalacat civil registry were burned
during the war. Even so, he could still rely on the presumption of marriage, since it is not
denied that Venancio Rivera and Maria Jocson lived together as husband and wife for
many years, begetting seven children in all during that time.
2. ID.; ID.; DOCUMENTARY EVIDENCE; BAPTISMAL CERTIFICATE NOT CONCLUSIVE

EVIDENCE OF FILIATION OF PETITIONER'S ALLEGED FATHER BUT MAY BE
CONSIDERED TO DETERMINE LATTER'S REAL IDENTITY. — Although Jose did present
his parents' marriage certificate, Venancio was described therein as the son of Florencio
Rivera. Presumably, he was not the same Venancio Rivera described in Exhibit 4, his
baptismal certificate, as the son of Magno Rivera. While we realize that such baptismal
certificate is not conclusive evidence of Venancio's filiation (which is not the issue here)
it may nonetheless be considered to determine his real identity.
3. CIVIL LAW; SUCCESSION; HOLOGRAPHIC WILL; STRANGER HAS NO PERSONALITY
TO CONTEST SAID WILL. — Jose Rivera is not the son of the deceased Venancio Rivera
whose estate is in question. Hence, being a mere stranger, he had no personality to
contest the wills and his opposition thereto did not have the legal effect of requiring the
three witnesses. The testimony of Zenaida and Venancio Rivera, Jr., who authenticated
the wills as having been written and signed by their father, was sufficient.
DECISION
CRUZ, J p:
Was there only one Venancio Rivera in Mabalacat, Pampanga, or were there two?
On May 30, 1975, a prominent and wealthy resident of that town named Venancio
Rivera died. On July 28, 1975, Jose Rivera, claiming to be the only surviving legitimate
son of the deceased, filed a petition for the issuance of letters of administration over
Venancio's estate. Docketed as SP No. 1076, this petition was opposed by Adelaido J.
Rivera, who denied that Jose was the son of the decedent. Adelaido averred that
Venancio was his father and did not die intestate but in fact left two holographic wills. 1
On November 7, 1975, Adelaido J. Rivera filed, also with the Regional Trial Court of
Angeles City, a petition for the probate of the holographic wills. Docketed as SP No. 1091,
this petition was in turn opposed by Jose Rivera, who reiterated that he was the sole heir
of Venancio's intestate estate. 2
On November 11, 1975, the two cases were consolidated. Adelaido J. Rivera was later
appointed special administrator. After joint trial, Judge Eliodoro B. Guinto found that
Jose Rivera was not the son of the decedent but of a different Venancio Rivera who was
married to Maria Vital. The Venancio Rivera whose estate was in question was married
to Maria Jocson, by whom he had seven children, including Adelaido. Jose Rivera had no
claim to this estate because the decedent was not his father. The holographic wills were
also admitted to probate. 3
On appeal, the decision of the trial court was affirmed by the then Intermediate
Appellate Court. 4 Its decision is now the subject of this petition, which urges the
reversal of the respondent court.
In support of his claim that he was the sole heir of the late Venancio Rivera, Jose sought
to show that the said person was married in 1928 to Maria Vital, who was his mother.
He submitted for this purpose Exhibit A, the marriage certificate of the couple, and
Exhibit B, his own baptismal certificate where the couple was indicated as his parents.
The petitioner also presented Domingo Santos, who testified that Jose was indeed the
son of the couple and that he saw Venancio and Jose together several times. 5 Jose
himself stressed that Adelaido considered him a half-brother and kissed his hand as a
sign of respect whenever they met. He insisted that Adelaido and his brothers and
sisters were illegitimate children, sired by Venancio with Maria Jocson. 6
Adelaido, for his part, maintained that he and his brothers and sisters were born to
Venancio Rivera and Maria Jocson, who were legally married and lived as such for many
years. He explained that he could not present his parents' marriage certificate because
the record of marriages for 1942 in Mabalacat were destroyed when the town was
burned during the war, as certified by Exhibit 6. 7 He also submitted his own birth
certificate and those of his sisters Zenaida and Yolanda Rivera, who were each described
therein as the legimitate children of Venancio Rivera and Maria Jocson. 8 Atty. Regalado
P. Morales, then 71 years of age, affirmed that he knew the deceased and his parents,
Magno Rivera and Gertrudes de los Reyes, and it was during the Japanese occupation
that Venancio introduced to him Maria Jocson as his wife. 9 To prove that there were in
fact two persons by the same name of Venancio Rivera, Adelaido offered Venancio
Rivera's baptismal certificate showing that his parents were Magno Rivera and
Gertrudes de los Reyes, 10 as contrasted with the marriage certificate submitted by Jose,
which indicated that the Venancio Rivera subject thereof was the son of Florencio Rivera
and Estrudez Reyes. 11 He also denied kissing Jose's hand or recognizing him as a
brother. 12
We find in favor of Adelaido J. Rivera.
It is true that Adelaido could not present his parents' marriage certificate because, as he
explained it, the marriage records for 1942 in the Mabalacat civil registry were burned
during the war. Even so, he could still rely on the presumption of marriage, since it is not
denied that Venancio Rivera and Maria Jocson lived together as husband and wife for
many years, begetting seven children in all during that time.
According to Article 220 of the Civil Code:
In case of doubt, all presumptions favor the solidarity of the family. Thus every
intendment of the law or fact leans toward the validity of marriage, the indissolubility of
the marriage bonds, the legitimacy of children, . . .
The Rules of Court, in Rule 131, provides:
SEC. 3. Disputable presumptions. — The following presumptions are satisfactory if

uncontradicted, but may be contradicted and overcome by other evidence:
xxx xxx xxx
(aa) That a man and woman deporting themselves as husband and wife have entered
into a lawful contract of marriage.
By contrast, although Jose did present his parents' marriage certificate, Venancio was
described therein as the son of Florencio Rivera. Presumably, he was not the same
Venancio Rivera described in Exhibit 4, his baptismal certificate, as the son of Magno
Rivera. While we realize that such baptismal certificate is not conclusive evidence of
Venancio's filiation (which is not the issue here) it may nonetheless be considered to
determine his real identity. Jose insists that Magno and Florencio are one and the same
person, arguing that it is not uncommon for a person to be called by different names.
The Court is not convinced. There is no evidence that Venancio's father was called either
Magno or Florencio. What is more likely is that two or more persons may live at the
same time and bear the same name, even in the same community. That is what the
courts below found in the cases at bar.
What this Court considers particularly intriguing is why, if it is true that he was the
legitimate son of Venancio Rivera, Jose did not assert his right as such when his father
was still alive. By his own account, Jose supported himself — and presumably also his
mother Maria Vital — as a gasoline attendant and driver for many years. All the time, his
father was residing in the same town — and obviously prospering — and available for
support. His alleged father was openly living with another woman and raising another
family, but this was apparently accepted by Jose without protest, taking no step
whatsoever to invoke his status. If, as he insists, he and Venancio Rivera were on cordial
terms, there is no reason why the father did not help the son and instead left Jose to fend
for himself as a humble worker while his other children by Maria Jocson enjoyed a
comfortable life. Such paternal discrimination is difficult to understand, especially if it is
considered — assuming the claims to be true that Jose was the oldest and, by his own
account, the only legitimate child of Venancio Rivera.
And there is also Maria Vital, whose attitude is no less incomprehensible. As Venancio's
legitimate wife — if indeed she was — she should have objected when her husband
abandoned her and founded another family by another woman, and in the same town at
that. Seeing that the children of Maria Jocson were being raised well while her own son
Jose was practically ignored and neglected, she nevertheless did not demand for him at
least support, if not better treatment, from his legitimate father. It is unnatural for a
lawful wife to say nothing if she is deserted in favor of another woman and for a caring
mother not to protect her son's interests from his wayward father's neglect. The fact is
that this forsaken wife never demanded support from her wealthy if errant husband. She
did not file a complaint for bigamy or concubinage against Venancio Rivera and Maria
Jocson, the alleged partners in crime and sin. Maria Vital was completely passive and
complaisant.
Significantly, as noted by the respondent court, Maria Vital was not even presented at
the trial to support her son's allegations that she was the decedent's lawful wife. Jose
says this was not done because she was already old and bedridden then. But there was
no impediment to the taking of her deposition in her own house. No effort was made
toward this end although her testimony was vital to the petitioner's cause. Jose
dismisses such testimony as merely "cumulative," but this Court does not agree. Having
alleged that Maria Jocson's marriage to Venancio Rivera was null and void, Jose had the
burden of proving that serious allegation.
We find from the evidence of record that the respondent court did not err in holding
that the Venancio Rivera who married Maria Jocson in 1942 was not the same person
who married Maria Vital, Jose's legitimate mother, in 1928. Jose belonged to a humbler
family which had no relation whatsoever with the family of Venancio Rivera and Maria
Vital. This was more prosperous and prominent. Except for the curious identity of
names of the head of each, there is no evidence linking the two families or showing that
the deceased Venancio Rivera was the head of both.
Now for the holographic wills. The respondent court considered them valid because it
found them to have been written, dated and signed by the testator himself in accordance
with Article 810 of the Civil Code. It also held there was no necessity of presenting the
three witnesses required under Article 811 because the authenticity of the wills had not
been questioned.
The existence and therefore also the authenticity of the holographic wills were
questioned by Jose Rivera. In his own petition in SP No. 1076, he declared that Venancio
Rivera died intestate; and in SP No. 1091, he denied the existence of the holographic
wills presented by Adelaido Rivera for probate. In both proceedings, Jose Rivera
opposed the holographic wills submitted by Adelaido Rivera and claimed that they were
spurious. Consequently, it may be argued, the respondent court should have applied
Article 811 of the Civil Code, providing as follows:
In the probate of a holographic will, it shall be necessary that at least one witness who
knows the handwriting and signature of the testator explicitly declare that the will and
the signature are in the handwriting of the testator. If the will is contested, at least three
of such witnesses shall be required.
The flaw in this argument is that, as we have already determined, Jose Rivera is not the
son of the deceased Venancio Rivera whose estate is in question. Hence, being a mere
stranger, he had no personality to contest the wills and his opposition thereto did not
have the legal effect of requiring the three witnesses. The testimony of Zenaida and
Venancio Rivera, Jr., who authenticated the wills as having been written and signed by
their father, was sufficient.
WHEREFORE, the petition is DENIED and the challenged decision is AFFIRMED, with
costs against the petitioner.
SO ORDERED.
Narvasa, Gancayco, Griño-Aquino and Medialdea, JJ., concur.
||| (Rivera v. Intermediate Appellate Court, G.R. Nos. 75005-06, [February 15, 1990], 261
PHIL 429-435)
(5PAGES)
SECOND DIVISION
[G.R. Nos. 83843-44. April 5, 1990.]
IN THE MATTER OF THE PETITION TO APPROVE THE WILL OF MELECIO

LABRADOR. SAGRADO LABRADOR (Deceased), substituted by ROSITA LABRADOR,
ENRICA LABRADOR, and CRISTOBAL LABRADOR, petitioners-appellants, vs.
COURT OF APPEALS, 1 GAUDENCIO LABRADOR, and JESUS LABRADOR,
respondents-appellees.
Benjamin C. Santos Law Offices for petitioners.
Rodrigo V. Fontelera for private respondents.
SYLLABUS
1. CIVIL LAW; SUCCESSION; HOLOGRAPHIC WILL; DATE MUST BE IN THE WILL ITSELF
AND EXECUTED IN THE HANDS OF THE TESTATOR. — The will has been dated in the
hand of the testator himself in perfect compliance with Article 810. It is worthy of note
to quote the first paragraph of the second page of the holographic will, viz: "And this is
the day in which we agreed that we are making the partitioning and assigning the
respective assignment of the said fishpond, and this being in the month of March, 17th
day, in the year 1968, and this decision and or instruction of mine is the matter to be
followed. And the one who made this writing is no other than MELECIO LABRADOR,
their father." The law does not specify a particular location where the date should be
placed in the will. The only requirements are that the date be in the will itself and
executed in the hand of the testator. These requirements are present in the subject will.
2. ID.; ID.; ID.; ID.; CONSTRUED IN CASE AT BAR. — Respondents claim that the date 17
March 1968 in the will was when the testator and his beneficiaries entered into an
agreement among themselves about "the partitioning and assigning the respective
assignments of the said fishpond," and was not the date of execution of the holographic
will; hence, the will is more of an "agreement" between the testator and the beneficiaries
thereof to the prejudice of other compulsory heirs like the respondents. This was thus a
failure to comply with Article 783 which defines a will as "an act whereby a person is
permitted, with the formalities prescribed by law, to control to a certain degree the
disposition of his estate, to take effect after his death." Respondents are in error. The
intention to show 17 March 1968 as the date of the execution of the will is plain from the
tenor of the succeeding words of the paragraph. As aptly put by petitioner, the will was
not an agreement but a unilateral act of Melecio Labrador who plainly knew that what
he was executing was a will. The act of partitioning and the declaration that such
partitioning as the testator's instruction or decision to be followed reveal that Melecio
Labrador was fully aware of the nature of the estate property to be disposed of and of
the character of the testamentary act as a means to control the disposition of his estate.
3. ID.; ID.; HEIR REDEEMING A PROPERTY ILLEGALLY SOLD; ENTITLED TO

REIMBURSEMENT. — Anent the second issue of finding the reimbursement of the
P5,000 representing the redemption price as erroneous, respondent court's conclusion
is incorrect. When private respondents sold the property (fishpond) with right to
repurchase to Navat for P5,000, they were actually selling property belonging to another
and which they had no authority to sell, rendering such sale null and void. Petitioners,
thus "redeemed" the property from Navat for P5,000, to immediately regain possession
of the property for its disposition in accordance with the will. Petitioners therefore
deserve to be reimbursed the P5,000.
DECISION
PARAS, J p:
The sole issue in this case is whether or not the alleged holographic will of one Melecio
Labrador is dated, as provided for in Article 810 2 of the New Civil Code.
The antecedent and relevant facts are as follows: On June 10, 1972, Melecio Labrador
died in the Municipality of Iba, province of Zambales, where he was residing, leaving
behind a parcel of land designated as Lot No. 1916 under Original Certificate of Title No.
P-1652, and the following heirs, namely: Sagrado, Enrica, Cristobal, Jesus, Gaudencio,
Josefina, Juliana, Hilaria and Jovita, all surnamed Labrador, and a holographic will.
On July 28, 1975, Sagrado Labrador (now deceased but substituted by his heirs), Enrica
Labrador and Cristobal Labrador, filed in the court a quo a petition for the probate
docketed as Special Proceeding No. 922-I of the alleged holographic will of the late
Melecio Labrador. prLL
Subsequently, on September 30, 1975, Jesus Labrador (now deceased but substituted by
his heirs), and Gaudencio Labrador filed an opposition to the petition on the ground that
the will has been extinguished or revoked by implication of law, alleging therein that on
September 30, 1971, that is, before Melecio's death, for the consideration of Six
Thousand (P6,000) Pesos, testator Melecio executed a Deed of Absolute Sale, selling,
transferring and conveying in favor of oppositors Jesus and Gaudencio Lot No. 1916 and
that as a matter of fact, O.C.T. No. P-1652 had been cancelled by T.C.T. No. T-21178.
Earlier however, in 1973, Jesus Labrador sold said parcel of land to Navat for only Five
Thousand (P5,000) Pesos. (Rollo, p. 37)
Sagrado thereupon filed, on November 28, 1975, against his brothers, Gaudencio and
Jesus, for the annulment of said purported Deed of Absolute Sale over a parcel of land
which Sagrado allegedly had already acquired by devise from their father Melecio
Labrador under a holographic will executed on March 17, 1968, the complaint for
annulment docketed as Civil Case No. 934-I, being premised on the fact that the
aforesaid Deed of Absolute Sale is fictitious.
After both parties had rested and submitted their respective evidence, the trial court
rendered a joint decision dated February 28, 1985, allowing the probate of the
holographic will and declaring null and void the Deed of Absolute Sale. The court a quo
had also directed the respondents (the defendants in Civil Case No. 934-I) to reimburse
to the petitioners the sum of P5,000.00 representing the redemption price for the
property paid by the plaintiff-petitioner Sagrado with legal interest thereon from
December 20, 1976, when it was paid to vendee a retro. cdll
Respondents appealed the joint decision to the Court of Appeals, which on March 10,
1988 modified said joint decision of the court a quo by denying the allowance of the
probate of the will for being undated and reversing the order of reimbursement.
Petitioners' Motion for Reconsideration of the aforesaid decision was denied by the
Court of Appeals, in the resolution of June 13, 1988. Hence, this petition.
Petitioners now assign the following errors committed by respondent court, to wit:
I
THE COURT OF APPEALS ERRED IN NOT ALLOWING AND APPROVING THE PROBATE
OF THE HOLOGRAPHIC WILL OF THE TESTATOR MELECIO LABRADOR; and
II
THE COURT OF APPEALS ERRED IN FINDING THAT THE ORDER OF THE LOWER
COURT DIRECTING THE REIMBURSEMENT OF THE FIVE THOUSAND PESOS
REPRESENTING THE REDEMPTION PRICE WAS ERRONEOUS.
The alleged undated holographic will written in Ilocano translated into English, is
quoted as follows:
"ENGLISH INTERPRETATION OF THE WILL OF THE LATE MELECIO LABRADOR

WRITTEN IN ILOCANO
BY ATTY. FIDENCIO L. FERNANDEZ
I — First Page
This is also where it appears in writing of the place which is assigned and shared or the
partition in favor of SAGRADO LABRADOR which is the fishpond located and known
place as Tagale.
And this place that is given as the share to him, there is a measurement of more or less
one hectare, and the boundary at the South is the property and assignment share of
ENRICA LABRADOR, also their sister, and the boundary in the West is the sea, known as
the SEA as it is, and the boundary on the NORTH is assignment belonging to CRISTOBAL
LABRADOR, who likewise is also their brother. That because it is now the time for me
being now ninety three (93) years, then I feel it is the right time for me to partition the
fishponds which were and had been bought or acquired by us, meaning with their two
mothers, hence there shall be no differences among themselves, those among brothers
and sisters, for it is I myself their father who am making the apportionment and
delivering to each and everyone of them the said portion and assignment so that there
shall not be any cause of troubles or differences among the brothers and sisters. llcd
II — Second Page
And this is the day in which we agreed that we are making the partitioning and assigning
the respective assignment of the said fishpond, and this being in the month of March,
17th day, in the year 1968, and this decision and or instruction of mine is the matter to
be followed. And the one who made this writing is no other than MELECIO LABRADOR,
their father.
Now, this is the final disposition that I am making in writing and it is this that should be
followed and complied with in order that any differences or troubles may be forestalled
and nothing will happen along these troubles among my children, and that they will be
in good relations among themselves, brothers and sisters;
And those improvements and fruits of the land; mangoes, bamboos and all coconut trees
and all others like the other kind of bamboo by name of Bayog, it is their right to get if
they so need, in order that there shall be nothing that anyone of them shall complain
against the other, and against anyone of the brothers and sisters.
III — THIRD PAGE
And that referring to the other places of property, where the said property is located, the
same being the fruits of our earnings of the two mothers of my children, there shall be
equal portion of each share among themselves, and or to be benefited with all those
property, which property we have been able to acquire.
That in order that there shall be basis of the truth of this writing (WILL) which I am here
hereof manifesting of the truth and of the fruits of our labor which their two mothers, I
am signing my signature below hereof, and that this is what should be complied with, by
all the brothers and sisters, the children of their two mothers — JULIANA QUINTERO
PILARISA and CASIANA AQUINO VILLANUEVA Your father who made this writing
(WILL), and he is, MELECIO LABRADOR y RALUTIN." (p. 46, Rollo)
The petition, which principally alleges that the holographic will is really dated, although
the date is not in its usual place, is impressed with merit.
The will has been dated in the hand of the testator himself in perfect compliance with
Article 810. It is worthy of note to quote the first paragraph of the second page of the
holographic will, viz:
"And this is the day in which we agreed that we are making the partitioning and
assigning the respective assignment of the said fishpond, and this being in the month of
March, 17th day, in the year 1968, and this decision and or instruction of mine is the
matter to be followed. And the one who made this writing is no other than MELECIO
LABRADOR, their father." (italics supplied) (p. 46, Rollo)
The law does not specify a particular location where the date should be placed in the
will. The only requirements are that the date be in the will itself and executed in the
hand of the testator. These requirements are present in the subject will.
Respondents claim that the date 17 March 1968 in the will was when the testator and
his beneficiaries entered into an agreement among themselves about "the partitioning
and assigning the respective assignments of the said fishpond," and was not the date of
execution of the holographic will; hence, the will is more of an "agreement" between the
testator and the beneficiaries thereof to the prejudice of other compulsory heirs like the
respondents. This was thus a failure to comply with Article 783 which defines a will as
"an act whereby a person is permitted, with the formalities prescribed by law, to control
to a certain degree the disposition of his estate, to take effect after his death."
Respondents are in error. The intention to show 17 March 1968 as the date of the
execution of the will is plain from the tenor of the succeeding words of the paragraph. As
aptly put by petitioner, the will was not an agreement but a unilateral act of Melecio
Labrador who plainly knew that what he was executing was a will. The act of
partitioning and the declaration that such partitioning as the testator's instruction or
decision to be followed reveal that Melecio Labrador was fully aware of the nature of the
estate property to be disposed of and of the character of the testamentary act as a means
to control the disposition of his estate.
Anent the second issue of finding the reimbursement of the P5,000 representing the
redemption price as erroneous, respondent court's conclusion is incorrect. When
private respondents sold the property (fishpond) with right to repurchase to Navat for
P5,000, they were actually selling property belonging to another and which they had no
authority to sell, rendering such sale null and void. Petitioners, thus "redeemed" the
property from Navat for P5,000, to immediately regain possession of the property for its
disposition in accordance with the will. Petitioners therefore deserve to be reimbursed
the P5,000.
PREMISES CONSIDERED, the decision of the Court of Appeals dated March 10, 1988 is
hereby REVERSED. The holographic will of Melecio Labrador is APPROVED and
ALLOWED probate. The private respondents are directed to REIMBURSE the petitioners
the sum of Five Thousand Pesos (P5,000.00).
SO ORDERED.
Melencio-Herrera, Padilla, Sarmiento and Regalado, JJ., concur.
||| (In re: Labrador v. Court of Appeals, G.R. Nos. 83843-44, [April 5, 1990], 263 PHIL
50-57)
FIRST DIVISION (7PAGES)
[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.
DECISION
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
Leaño, 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:
LibLex
"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, I have been living, as man and wife, with one Sofia J.
Nepomuceno, whom I declare and avow to be entitled to may 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 costs."
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. Cdpr
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: LLphil
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 testator's 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. . . ." (Castañeda 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 v. 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 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. cdphil
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. prcd
The records do not sustain a finding of innocence or good faith. As argued by the private
respondents:
"First. The last will and testament itself expressly admits indubitably on its face the
meretricious relationship between the testator and petitioner, the devisee.
"Second. Petitioner herself initiated the presentation of evidence on her alleged
ignorance of the true civil status of the testator, which led private respondents to
present contrary evidence.
"In short, the parties themselves dueled on the intrinsic validity of the legacy given in
the will to petitioner by the deceased testator at the start of the proceedings.
"Whether or not petitioner knew that testator Martin Jugo, the man he had lived with as
man and wife, as already married was an important and specific issue brought by the
parties before the trial court, and passed upon by the Court of Appeals.
"Instead of limiting herself to proving the extrinsic validity of the will, it was petitioner
who opted to present evidence on her alleged good faith in marrying the testator.
(Testimony of Petitioner, TSN of August 1, 1982, pp. 56-57 and pp. 62-64).
"Private respondents, naturally, presented evidence that would refute the testimony of
petitioner on the point.
"Sebastian Jugo, younger brother of the deceased testator, testified at length on the
meretricious relationship of his brother and petitioner. (TSN of August 18, 1975).
"Clearly, the good faith of petitioner was by option of the parties made a decisive issue
right at the inception of the case.
"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 knew 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 ms
illegitimate or legitimate children and by whom? That is un-Filipino.
"FIFTH: Having often gone to Pasig to the residence of the parents of the deceased
testator, is it possible that she would not have known that the mother of private
respondent Oscar Jugo and Carmelita Jugo was respondent Rufina Gomez, considering
that the houses of the parents of Martin Jugo (where he had lived for many years)
and that of respondent Rufina Gomez were just a few meters away?
"Such pretentions of petitioner Sofia Nepomuceno are unbelievable. They are, to say the
least, inherently improbable, for they are against the experience in common life and the
ordinary instincts and promptings of human nature that a woman would not bother at
all to ask the man she was going to marry whether or not he was already married to
another, knowing that her groom had children. It would be a story that would strain
human credulity to the limit if petitioner did not know that Martin Jugo was already a
married man in view of the irrefutable fact that it was precisely his marriage to
respondent Rufina Gomez that led petitioner to break off with the deceased during their
younger years."
Moreover, the prohibition in Article 739 of the Civil Code is against the making of a
donation between persons who are living in adultery or concubinage. It is the donation
which becomes void. The giver cannot give even assuming that the recipient may receive.
The very wordings of the Will invalidate the legacy because the testator admitted he was
disposing the properties to a person with whom he had been living in concubinage. prcd
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.
Teehankee (Chairman), Melencio-Herrera, Plana, Relova, Dela Fuente and Patajo, JJ.,
concur.
||| (Nepomuceno v. Court of Appeals, G.R. No. L-62952, [October 9, 1985], 223 PHIL
418-429)
(8PAGES)
FIRST DIVISION
[G.R. No. 54919. May 30, 1984.]

POLLY CAYETANO, petitioner, vs. HON. TOMAS T. LEONIDAS, in his capacity as the
Presiding Judge of Branch XXXVIII, Court of First Instance of Manila and NENITA
CAMPOS PAGUIA, respondents.
Ermelo P. Guzman for petitioner.
Armando Z. Gonzales for private respondent.
SYLLABUS
1. REMEDIAL LAW; SPECIAL CIVIL ACTION; CERTIORARI; GRAVE ABUSE OF

DISCRETION; GRANT OF MOTION TO WITHDRAW OPPOSITION TO PROBATE OF WILL
IN CASE AT BAR, NOT A CASE OF. — We find no grave abuse of discretion on the part of
the respondent judge when he allowed withdrawal of petitioner's opposition to the
probate of the will. No proof was adduced to support petitioner's contention that the
motion to withdraw was secured through fraudulent means and that Atty. Franco Loyola
was not his counsel of record. The records show that after the filing of the contested
motion, the petitioner at a later date, filed a manifestation wherein he confirmed that
the Motion to Dismiss Opposition was his voluntary act and deed. Moreover, at the time
the motion was filed, the petitioner's former counsel, Atty. Jose P. Lagrosa had long
withdrawn from the case and had been substituted by Atty. Franco Loyola who in turn
filed the motion. The present petitioner cannot, therefore, maintain that the old man's
attorney of record was Atty. Lagrosa at the time of filing the motion. Since the
withdrawal was in order, the respondent judge acted correctly in hearing the probate of
the will ex-parte, there being no other opposition to the same.
2. ID.; SPECIAL PROCEEDINGS; PROBATE OF WILL; PROBATE COURT, SCOPE OF

AUTHORITY. — As a general rule, the probate court's authority is limited only to the
extrinsic validity of the will, the due execution thereof, the testatrix's testamentary
capacity and the compliance with the requisites or solemnities prescribed by law. The
intrinsic validity of the will normally comes only after the court has declared that the
will has been duly authenticated. However, 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 (Maninang, v. Court of Appeals, 114 SCRA 478).
3. CIVIL LAW; WILLS AND SUCCESSION; INTRINSIC VALIDITY OF WILLS GOVERNED BY

THE NATIONAL LAW OF THE DECEDENT; CASE AT BAR. — It is a settled rule that as
regards the intrinsic validity of the provisions of the will, as provided for by Articles
16(2) and 1039 of the Civil Code, the national law of the decedent must apply. In the
case at bar, although on its face, the will appeared to have preterited the petitioner and
thus, the respondent judge should have denied its probate outright, the private
respondents have sufficiently established that Adoracion Campos was, at the time of her
death, an American citizen and a permanent resident of Philadelphia, Pennsylvania,
U.S.A.. Therefore, the law governing Adoracion Campos' will is the law of Pennsylvania,
U.S.A., which is the national law of the decedent. Under the Pennsylvania law, no
legitimes are provided for, and all the estate may be given away by the testatrix to a
complete stranger.
4. REMEDIAL LAW; SPECIAL PROCEEDINGS; SETTLEMENT OF ESTATE; COURT OF

FIRST INSTANCE OF THE PROVINCE WHERE THE ESTATE IS LOCATED HAS
JURISDICTION. — The settlement of the estate of Adoracion Campos was correctly filed
with the Court of First Instance of Manila where she had an estate since it was alleged
and proven the Adoracion at the time of her death was a citizen and permanent resident
of Pennsylvania, United States of America and not a "usual resident of Cavite" as alleged
by the petitioner.
5. ID.; ID.; ID.; ID.; PETITIONER ESTOPPED FROM QUESTIONING JURISDICTION OF

COURT IN CASE AT BAR. — Petitioner is now estopped from questioning the jurisdiction
of the probate court in the petition for relief. It is a settled rule that a party cannot
invoke the jurisdiction of a court to secure affirmative relief, against his opponent and
after failing to obtain such relief, repudiate or question that same jurisdiction (See
Saulog Transit, Inc. v. Hon. Manuel Lazaro, et al., G.R. No. 63284, April 4, 1984).
DECISION
This is a petition for review on certiorari, seeking to annul the order of the respondent
judge of the Court of First Instance of Manila, Branch XXXVIII, which admitted to and
allowed the probate of the last will and testament of Adoracion C. Campos, after an
ex-parte presentation of evidence by herein private respondent. LLjur
On January 31, 1977, Adoracion C. Campos died, leaving her father, petitioner
Hermogenes Campos and her sisters, private respondent Nenita C. Paguia, Remedios C.
Lopez and Marieta C. Medina as the surviving heirs. As Hermogenes Campos was the
only compulsory heir, he executed an Affidavit of Adjudication under Rule 74, Section I
of the Rules of Court whereby he adjudicated unto himself the ownership of the entire
estate of the deceased Adoracion Campos.
Eleven months after, on November 25, 1977, Nenita C. Paguia filed a petition for the
reprobate of a will of the deceased, Adoracion Campos, which was allegedly executed in
the United States and for her appointment as administratrix of the estate of the deceased
testatrix.
In her petition, Nenita alleged that the testatrix was an American citizen at the time of
her death and was a permanent resident of 4633 Ditman Street, Philadelphia,
Pennsylvania, U.S.A.; that the testatrix died in Manila on January 31, 1977 while
temporarily residing with her sister at 2167 Leveriza, Malate, Manila; that during her
lifetime, the testatrix made her last will and testament on July 10, 1975, according to the
laws of Pennsylvania, U.S.A., nominating Wilfredo Barzaga of New Jersey as executor;
that after the testatrix' death, her last will and testament was presented, probated,
allowed, and registered with the Registry of Wills at the County of Philadelphia, U.S.A.,
that Clement L. McLaughlin, the administrator who was appointed after Dr. Barzaga had
declined and waived his appointment as executor in favor of the former, is also a
resident of Philadelphia, U.S.A., and that therefore, there is an urgent need for the
appointment of an administratrix to administer and eventually distribute the properties
of the estate located in the Philippines. Cdpr
On January 11, 1978, an opposition to the reprobate of the will was filed by herein
petitioner alleging among other things, that he has every reason to believe that the will
in question is a forgery; that the intrinsic provisions of the will are null and void; and
that even if pertinent American laws on intrinsic provisions are invoked, the same could
not apply inasmuch as they would work injustice and injury to him.
On December 1, 1978, however, the petitioner through his counsel, Atty. Franco Loyola,
filed a Motion to Dismiss Opposition (With Waiver of Rights or Interests) stating that he
"has been able to verify the veracity thereof (of the will) and now confirms the same to
be truly the probated will of his daughter Adoracion." Hence, an ex-parte presentation of
evidence for the reprobate of the questioned will was made.
On January 10, 1979, the respondent judge issued an order to wit:
"At the hearing, it has been satisfactorily established that Adoracion C. Campos, in her
lifetime, was a citizen of the United States of America with a permanent residence at
4633 Ditman Street, Philadelphia, PA 19124, (Exhibit D); that when alive, Adoracion C.
Campos executed a Last Will and Testament in the county of Philadelphia, Pennsylvania,
U.S.A., according to the laws thereat (Exhibits E-3 to E-3-b); that while in temporary
sojourn in the Philippines, Adoracion C. Campos died in the City of Manila (Exhibit C)
leaving property both in the Philippines and in the United States of America; that the
Last Will and Testament of the late Adoracion C. Campos was admitted and granted
probate by the Orphan's Court Division of the Court of Common Pleas, the probate court
of the Commonwealth of Pennsylvania, County of Philadelphia, U.S.A., and letters of
administration were issued in favor of Clement J. McLaughlin, all in accordance with the
laws of the said foreign country on procedure and allowance of wills (Exhibits E to E-10);
and that the petitioner is not suffering from any disqualification which would render her
unfit as administratrix of the estate in the Philippines of the late Adoracion C. Campos.
"WHEREFORE, the Last Will and Testament of the late Adoracion C. Campos is hereby
admitted to and allowed probate in the Philippines, and Nenita Campos Paguia is hereby
appointed Administratrix of the estate of said decedent; let Letters of Administration
with the Will annexed issue in favor of said Administratrix upon her filing of a bond in
the amount of P5,000.00 conditioned under the provisions of Section I, Rule 81 of the
Rules of Court.
Another manifestation was filed by the petitioner on April 14, 1979, confirming the
withdrawal of his opposition, acknowledging the same to be his voluntary act and deed.
On May 25, 1979, Hermogenes Campos filed a petition for relief, praying that the order
allowing the will be set aside on the ground that the withdrawal of his opposition to the
same was secured through fraudulent means. According to him, the "Motion to Dismiss
Opposition" was inserted among the papers which he signed in connection with two
Deeds of Conditional Sales which he executed with the Construction and Development
Corporation of the Philippines (CDCP). He also alleged that the lawyer who filed the
withdrawal of the opposition was not his counsel-of-record in the special proceedings
case.
The petition for relief was set for hearing but the petitioner failed to appear. He made
several motions for postponement until the hearing was set on May 29, 1980.
On May 18, 1980, petitioner filed another motion entitled "Motion to Vacate and/or Set
Aside the Order of January 10, 1979, and/or dismiss the case for lack of jurisdiction. In
this motion, the notice of hearing provided:
"Please include this motion in your calendar for hearing on May 29, 1980 at 8:30 in the
morning for submission for reconsideration and resolution of the Honorable Court. Until
this Motion is resolved, may I also request for the future setting of the case for hearing
on the Oppositor's motion to set aside previously filed."
The hearing of May 29, 1980 was re-set by the court for June 19, 1980. When the case
was called for hearing on this date, the counsel for petitioner tried to argue his motion to
vacate instead of adducing evidence in support of the petition for relief. Thus, the
respondent judge issued an order dismissing the petition for relief for failure to present
evidence in support thereof. Petitioner filed a motion for reconsideration but the same
was denied. In the same order, respondent judge also denied the motion to vacate for
lack of merit. Hence, this petition. cdll
Meanwhile, on June 6, 1982, petitioner Hermogenes Campos died and left a will, which,
incidentally has been questioned by the respondent, his children and forced heirs as, on
its face patently null and void, and a fabrication, appointing Polly Cayetano as the
executrix of his last will and testament. Cayetano, therefore, filed a motion to substitute
herself as petitioner in the instant case which was granted by the court on September 13,
1982.
A motion to dismiss the petition on the ground that the rights of the petitioner
Hermogenes Campos merged upon his death with the rights of the respondent and her
sisters, only remaining children and forced heirs was denied on September 12, 1983.
Petitioner Cayetano persists with the allegations that the respondent judge acted
without or in excess of his jurisdiction when:
"1) He ruled the petitioner lost his standing in court deprived the Right to Notice (sic)
upon the filing of the Motion to Dismiss opposition with waiver of rights or interests
against the estate of deceased Adoracion C. Campos, thus, paving the way for the
ex-parte hearing of the petition for the probate of decedent will.
"2) He ruled that petitioner can waive, renounce or repudiate (not made in a public or
authenticated instrument), or by way of a petition presented to the court but by way of a
motion presented prior to an order for the distribution of the estate — the law
especially providing that repudiation of an inheritance must be presented, within 30
days after it has issued an order for the distribution of the estate in accordance with the
rules of Court.
"3) He ruled that the right of a forced heir to his legitime can be divested by a decree
admitting a will to probate in which no provision is made for the forced heir in complete
disregard of Law of Succession.
"4) He denied petitioner's petition for Relief on the ground that no evidence was
adduced to support the Petition for Relief when no Notice nor hearing was set to afford
petitioner to prove the merit of his petition — a denial of the due process and a grave
abuse of discretion amounting to lack of jurisdiction.
"5) He acquired no jurisdiction over the testate case, the fact that the Testator at the
time of death was a usual resident of Dasmariñas, Cavite, consequently Cavite Court of
First Instance has exclusive jurisdiction over the case (De Borja vs. Tan, G.R. No. L-7792,
July 1955)."
The first two issues raised by the petitioner are anchored on the allegation that the
respondent judge acted with grave abuse of discretion when he allowed the withdrawal
of the petitioner's opposition to the reprobate of the will.
We find no grave abuse of discretion on the part of the respondent judge. No proof was
adduced to support petitioner's contention that the motion to withdraw was secured
through fraudulent means and that Atty. Franco Loyola was not his counsel of record.
The records show that after the filing of the contested motion, the petitioner at a later
date, filed a manifestation wherein he confirmed that the Motion to Dismiss Opposition
was his voluntary act and deed. Moreover, at the time the motion was filed, the
petitioner's former counsel, Atty. Jose P. Lagrosa had long withdrawn from the case and
had been substituted by Atty. Franco Loyola who in turn filed the motion. The present
petitioner cannot, therefore, maintain that the old man's attorney of record was Atty.
Lagrosa at the time of filing the motion. Since the withdrawal was in order, the
respondent judge acted correctly in hearing the probate of the will ex-parte, there being
no other opposition to the same. LLpr
The third issue raised deals with the validity of the provisions of the will. As a general
rule, the probate court's authority is limited only to the extrinsic validity of the will, the
due execution thereof, the testatrix's testamentary capacity and the compliance with the
requisites or solemnities prescribed by law. The intrinsic validity of the will normally
comes only after the court has declared that the will has been duly authenticated.
However, 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. (Maninang v.
Court of Appeals, 114 SCRA 478).
In the case at bar, the petitioner maintains that since the respondent judge allowed the
reprobate of Adoracion's will, Hermogenes C. Campos was divested of his legitime which
was reserved by the law for him.
This contention is without merit.
Although on its face, the will appeared to have preterited the petitioner and thus, the
respondent judge should have denied its reprobate outright, the private respondents
have sufficiently established that Adoracion was, at the time of her death, an American
citizen and a permanent resident of Philadelphia, Pennsylvania, U.S.A. Therefore, under
Article 16 par. (2) and 1039 of the Civil Code which respectively provide:
Art. 16 par. (2).
xxx xxx xxx

"However, intestate and testamentary successions, both with respect to the order of
succession and to the amount of successional rights and to the intrinsic validity of
testamentary provisions, shall be regulated by the national law of the person whose
succession is under consideration, whatever may be the nature of the property and
regardless of the country wherein said property may be found."
Art. 1039.
"Capacity to succeed is governed by the law of the nation of the decedent."
the law which governs Adoracion Campo's will is the law of Pennsylvania, U.S.A., which
is the national law of the decedent. Although the parties admit that the Pennsylvania law
does not provide for legitimes and that all the estate may be given away by the testatrix
to a complete stranger, the petitioner argues that such law should not apply because it
would be contrary to the sound and established public policy and would run counter to
the specific provisions of Philippine Law.
It is a settled rule that as regards the intrinsic validity of the provisions of the will, as
provided for by Article 16 (2) and 1039 of the Civil Code, the national law of the
decedent must apply. This was squarely applied in the case of Bellis v. Bellis (20 SCRA
358) wherein we ruled:
"It is therefore evident that whatever public policy or good customs may be involved in
our system of legitimes, Congress has not intended to extend the same to the succession
of foreign nationals. For it has specifically chosen to leave, inter alia, the amount of
successional rights, to the decedent's national law. Specific provisions must prevail over
general ones.
xxx xxx xxx
"The parties admit that the decedent, Amos G. Bellis, was a citizen of the State of Texas,
U.S.A., and under the law of Texas, there are no forced heirs or legitimes. Accordingly,
since the intrinsic validity of the provision of the will and the amount of successional
rights are to be determined under Texas law, the Philippine Law on legitimes cannot be
applied to the testacy of Amos G. Bellis."
As regards the alleged absence of notice of hearing for the petition for relief, the records
will bear the fact that what was repeatedly scheduled for hearing on separate dates until
June 19, 1980 was the petitioner's petition for relief and not his motion to vacate the
order of January 10, 1979. There is no reason why the petitioner should have been led to
believe otherwise. The court even admonished the petitioner's failing to adduce
evidence when his petition for relief was repeatedly set for hearing. There was no denial
of due process. The fact that he requested "for the future setting of the case for
hearing . . ." did not mean that at the next hearing, the motion to vacate would be heard
and given preference in lieu of the petition for relief. Furthermore, such request should
be embodied in a motion and not in a mere notice of hearing. prcd
Finally, we find the contention of the petition as to the issue of jurisdiction utterly
devoid of merit. Under Rule 73, Section 1, of the Rules of Court, it is provided that:
"SECTION 1. Where estate of deceased persons settled. — If the decedent is an

inhabitant of the Philippines at the time of his death, whether a citizen or an alien, his
will shall be proved, or letters of administration granted, and his estate settled, in the
Court of First Instance in the province in which he resided at the time of his death, and if
he is an inhabitant of a foreign country, the Court of First Instance of any province in
which he had estate. The court first taking cognizance of the settlement of the estate of a
decedent, shall exercise jurisdiction to the exclusion of all other courts. The jurisdiction
assumed by a court, so far as it depends on the place of residence of the decedent, or of
the location of his estate, shall not be contested in a suit or proceeding, except in an
appeal from that court, in the original case, or when the want of jurisdiction appears on
the record."
Therefore, the settlement of the estate of Adoracion Campos was correctly filed with the
Court of First Instance of Manila where she had an estate since it was alleged and proven
the Adoracion at the time of her death was a citizen and permanent resident of
Pennsylvania, United States of America an not a "usual resident of Cavite" as alleged by
the petitioner. Moreover, petitioner is now estopped from questioning the jurisdiction of
the probate court in the petition for relief. It is a settled rule that a party cannot invoke
the jurisdiction of a court to secure affirmative relief, against his opponent and after
failing to obtain such relief, repudiate or question that same jurisdiction. (See Saulog
Transit, Inc. v. Hon. Manuel Lazaro, et al., G.R. No. 63284, April 4, 1984). LLphil
WHEREFORE, the petition for certiorari and prohibition is hereby dismissed for lack of
merit.
SO ORDERED.
Melencio-Herrera, Plana, Relova and De la Fuente, JJ ., concur.

Teehankee, J ., took no part.
||| (Cayetano v. Leonidas, G.R. No. 54919, [May 30, 1984], 214 PHIL 460-470)
(7PAGES)
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,
oppositor-appellants.
Claro M. Recto and Serafin C. Dizon, for appellants.
Delgado & Flores, for appellee.
SYLLABUS
1. WILLS; REVOCATION BY SUBSEQUENT WILL; EFFECT OF VOID REVOCATORY

CLAUSE. — 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 annuling the previous will, inasmuch as said revocatory clause is void (Samson
vs. Naval, 41 Phil., 838).
2. ID.; PROBATE; DEPENDENT RELATIVE REVOCATION. — 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 where it is founded on the mistaken belief that the later will has been
validly executed and would be given due effect. The earlier will can still be admitted to
probate under the principle of "dependent relative revocation". The theory on which
this principle is predicated is that the testator did not intend to die intestate. And this
intention is clearly manifest where he executed two wills on two different occasions and
instituted his wife as his universal heir.
DECISION
BAUTISTA ANGELO, J p:
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 latter will
contains a clause which expressly revokes the will executed in 1918.
On February 7, 1941, Juana Juan Vda. de Molo filed in the Court of First Instance of Rizal
a petition, 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 as
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 1918.
"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 which in their opinion indicate that petitioner connived with witness
Canuto Perez in an effort to defeat and frustrate the probate of the 1939 will because of
her knowledge that said will was intrinsically defective in that "the one and only
testamentary disposition thereof was a 'disposición 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
deceased.
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 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
rehearing has also been explained, and it appears that petitioner has failed because his
whereabouts could not be found. Whether this is true or not is not 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 take 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 the 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 strength 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 "disposición
captatoria", which knowledge she may easily acquire through consultation with a lawyer,
there was no need for her to go through the ordeal 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
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 to
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 of estoppel which would prevent her from seeking the
probate of the 1918 will simply because her effort to obtain the allowance of the 1939
will has failed considering that in both the 1918 and 1939 wills she was instituted 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
for being zealous in protecting her interest.
The next contention of appellants refers to the revocatory clause contained in the 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 will 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 in that case is here
controlling.
There is merit in this contention. We have carefully read the facts involved in the
Samson case and 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 why 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 there are many cases which uphold the view entertained by counsel for
oppositors, and that view appears to be controlling in 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 on the
subject of revocation of wills. But the impression we gathered from a review and 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
prior 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 nontestamentary
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 has not
sufficient mental capacity to make a will or the will is procured through undue influence,
or the such, in other words, where the second will is really no will, it does not revoke the
first will or affect it in any manner." Mort vs. Baker University (1935) 229 Mo. App., 632,
78 S. W. (2d), 498."
These 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 abandoning it as now suggested by
counsel for the oppositors.
It is true that our law on the matter (sec. 623, Code of Civil Procedure) provides that a
will may be revoked "by some will, codicil, or other writing executed as provided 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 contend 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 revocatory clause contained in
said will, himself deliberately destroyed the original of the 1918 will, and that for this
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 left to mere inference or conjecture.
Granting for the sake of argument that the earlier will was voluntarily destroyed by the
testator after the execution of the second will, which revoked the first, could there be
any doubt, under this theory, that said earlier will was destroyed by the testator in the
honest belief that it was no longer necessary because he had expressly revoked it in his
will of 1939? In other words, can we not say that the destruction of the earlier will was
but the necessary consequence of the testator's belief that the revocatory clause
contained in the subsequent will was valid and the latter would be given effect? If such is
the case, then it is our opinion that the earlier will can still be admitted to probate under
the principle of "dependent relative revocation".
"This doctrine is known as that of dependent relative revocation, and is usually applied
where the testator cancels or destroys a will or executes an instrument intended to
revoke a will with a present intention to make a new testamentary disposition as a
substitute for the old, and the new disposition is not made or, if made, fails of effect for
some reason. The doctrine is not limited to the existence of some other document,
however, and has been applied where a will was destroyed as a consequence of a
mistake of law . . .." (68 C. J. 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 the new disposition intended to be substituted,
the revocation will be conditional and dependent upon the efficacy of the new
disposition; and if, for any reason, the new will intended to be made as a substitute is
inoperative, the revocation fails and the original will remains in full force." (Gardner, pp.
232, 233.)
"This is the doctrine of dependent relative revocation. The failure of the new
testamentary disposition, upon whose validity the revocation depends, is equivalent to
the non-fulfillment of a suspensive condition, and hence prevents the revocation of the
original will. But a mere intent to make at some time a will in place of that destroyed will
not render the destruction conditional. It must appear that the revocation is dependent
upon the valid execution of a new will." (1 Alexander, p. 751; Gardner, p. 233.)
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 occasions 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.
Paras, C.J., Feria, Pablo, Bengzon, Tuason and Jugo, JJ., concur.
Reyes, J., concurs in the result.
12
||| (Vda. de Molo v. Molo, G.R. No. L-2538, [September 21, 1951], 90 PHIL 37-49)
(14PAGES)
THIRD DIVISION
[G.R. No. 53546. June 25, 1992.]
THE HEIRS OF THE LATE JESUS FRAN and CARMEN MEJIA RODRIGUEZ, petitioner,
vs. HON. BERNARDO LL. SALAS, CONCEPCION MEJIA ESPINA and MARIA MEJIA
GANDIONGCO, respondents.
SYLLABUS
1. REMEDIAL LAW; SPECIAL PROCEEDINGS; RESPONDENT JUDGE COMMITTED GRAVE

ABUSE OF DISCRETION AMOUNTING TO LACK OF JURISDICTION WHEN HE GRANTED
THE OMNIBUS MOTION FOR RECONSIDERATION. — We do not hesitate to rule that the
respondent Judge committed grave abuse of discretion amounting to lack of jurisdiction
when he granted the Omnibus Motion for Reconsideration and thereafter set aside the
probate judgment of 13 November 1972 in Sp. Proc. No. 3309-R, declared the subject
will of the testatrix a forgery, nullified the testamentary dispositions therein and
ordered the conversion of the testate proceedings into one of intestacy. It is not disputed
that private respondents filed on the date of the initial hearing of the petition their
"Withdrawal of Opposition To Allowance of Probate (sic) Will" wherein they
unequivocally state that they have no objection to the allowance of the will. For all legal
intents and purposes, they became proponents of the same. After the probate court
rendered its decision on 13 November 1972, and there having been no claim presented
despite publication of notice to creditors, petitioner Fran submitted a Project of
Partition which private respondent Maria M. Vda. de Gandiongco voluntarily signed and
to which private respondent Espina expressed her conformity through a certification
filed with the probate court. Assuming for the sake of argument that private
respondents did not receive a formal notice of the decision as they claim in their
Omnibus Motion for Reconsideration, these acts nevertheless constitute indubitable
proof of their prior actual knowledge of the same.
2. RECEPTION OF EVIDENCE BY THE CLERK OF COURT UPHELD; DOCTRINE LAID

DOWN IN LIM TANHU V. RAMOLETE NOT APPLICABLE; NEW DOCTRINE SHOULD BE
APPLIED PROSPECTIVELY. — Neither do We give any weight to the contention that the
reception of evidence by the Clerk of Court is null and void per the doctrine laid down in
Lim Tanhu v. Ramolete. In the first place, Lim Tanhu was decided on 29 August 1975,
nearly four (4) years after the probate court authorized the Clerk of Court to receive the
evidence for the petitioner in this case. A month prior to Lim Tanhu, or on 30 July 1975,
this Court, in Laluan vs. Malpaya, recognized and upheld the practice of delegating the
reception of evidence to Clerks of Court. Thus: "No provision of law or principle of public
policy prohibits a court from authorizing its clerk of court to receive the evidence of a
party litigant. After all, the reception of evidence by the clerk of court constitutes but a
ministerial task — the taking down of the testimony of the witnesses and the marking of
the pieces of documentary evidence, if any, adduced by the party present. This task of
receiving evidence precludes, on the part of the clerk of court, the exercise of judicial
discretion usually called for when the other party who is present objects to questions
propounded and to the admission of the documentary evidence proffered. More
importantly, the duty to render judgment on the merits of the case still rests with the
judge who is obliged to personally and directly prepare the decision based upon the
evidence reported. But where the proceedings before the clerk of court and the
concomitant result thereof, i.e., the judgment rendered by the court based on the
evidence presented in such limited proceedings, prejudice the substantial rights of the
aggrieved party, then there exists sufficient justification to grant the latter complete
opportunity to thresh out his case in court." Monserrate vs. Court of Appeals, decided on
29 September 1989, reiterated this rule. Lim Tanhu then cannot be used as authority to
nullify the order of the probate court authorizing the Clerk of Court to receive the
evidence for the rule is settled that "when a doctrine of this Court is overruled and a
different view is adopted, the new doctrine should be applied prospectively, and should
not apply to parties who had relied on the old doctrine and acted on the faith thereof."
3. CLERK OF COURT NEED NOT TAKE ANOTHER OATH OF OFFICE TO RECEIVE

EVIDENCE. — The alternative claim that the proceedings before the Clerk of Court were
likewise void because said official did not take an oath is likewise untenable. The Clerk
of Court acted as such when he performed the delegated task of receiving evidence. It
was not necessary for him to take an oath for that purpose; he was bound by his oath of
office as a Clerk of Court. Private respondents are obviously of the impression that by
the delegation of the reception of evidence to the Clerk of Court, the latter became a
commissioner as defined under Rule 33 of the Rules of Court entitled Trial by
Commissioner. This is not correct; as this Court said in Laluan: "The provisions of Rule
33 of the Rules of Court invoked by both parties properly relate to the reference by a
court of any or all of the issues in a case to a person so commissioned to act or report
thereon. These provisions explicitly spell out the rules governing the conduct of the
court, the commissioner, and the parties before, during, and after the reference
proceedings. Compliance with these rules of conduct becomes imperative only when the
court formally orders a reference of the case to a commissioner. Strictly speaking then,
the provisions of Rule 33 find no application to the case at bar where the court a quo
merely directed the clerk of court to take down the testimony of the witnesses
presented and the mark the documentary evidence proffered on a date previously set
for hearing."
4. ANNEXING OF THE ORIGINAL WILL TO THE PETITION NOT A JURISDICTIONAL

REQUIREMENT. — In Santos vs. Castillo and Salazar vs. Court of First Instance of Laguna,
decided six (6) months apart in 1937, this Court already ruled that it is not necessary
that the original of the will be attached to the petition. In the first, it ruled: "The original
of said document [the will] must be presented or sufficient reasons given to justify the
nonpresentation of said original and the acceptance of the copy or duplicate thereof." In
the second case, this Court was more emphatic in holding that: "The law is silent as to
the specific manner of bringing the jurisdictional allegations before the court, by
practice the jurisprudence have established that they should be made in the form of an
application and filed with the original of the will attached thereto. It has been the
practice in some courts to permit attachment of a mere copy of the will to the
application, without prejudice to producing the original thereof at the hearing or when
the court so requires. This precaution has been adopted by some attorneys to forestall
its disappearance, which has taken place in certain cases." That the annexing of the
original will to the petition is not a jurisdictional requirement is clearly evident in
Section 1, Rule 76 of the Rules of Court which allows the filing of a petition for probate
by the person named therein regardless of whether or not he is in possession of the will,
or the same is lost or destroyed.
5. COURSES OF ACTION OPENED TO AN AGGRIEVED PARTY TO ATTACK A FINAL

JUDGMENT; PRIVATE RESPONDENTS HAD LOST THE RIGHT TO FILE A PETITION FOR
RELIEF FROM JUDGMENT; REASON. — In Our jurisdiction, the following courses of
action are open to an aggrieved party to set aside or attack the validity of a final
judgment: (1) Petition for relief under Rule 38 of the Rules of Court which must be filed
within sixty (60) days after learning of the decision, but not more than six (6) months
after such decision is entered; (2) By direct action, via a special civil action for certiorari,
or by collateral attack, assuming that the decision is void for want of jurisdiction; (3) By
an independent civil action under Article 1114 of the Civil Code, assuming that the
decision was obtained through fraud and Rule 38 can not be applied. It is not difficult to
see that private respondents had lost their right to file a petition for relief from
judgment, it appearing that their omnibus motion for reconsideration was filed exactly
six (6) years, ten (10) months and twenty-two (22) days after the rendition of the
decision, and six (6) years, one (1) month and thirteen (13) days after the court issued
the order approving the Project of Partition, to which they voluntarily expressed their
conformity through their respective certifications, and closing the testate proceedings.
6. DECREE OF PROBATE IS CONCLUSIVE AS TO DUE EXECUTION OF THE WILL; CAN BE

IMPUGNED ONLY ON GROUNDS OF FRAUD. — The probate judgment of 13 November
1972, long final and undistributed by any attempt to unsettle it, had inevitably passed
beyond the reach of the court below to annul or set the same aside, by mere motion, on
the ground that the will is a forgery. Settled in the rule that the decree of probate is
conclusive with respect to the due execution of the will and it cannot be impugned on
any of the grounds authorized by law, except that of fraud, in any separate or
independent action or proceeding. We wish also to advert to the related doctrine which
holds that final judgments are entitled to respect and should not be disturbed; otherwise,
there would be a wavering of trust in the courts. In Lee Bun Ting vs. Aligaen, this Court
had the occasion to state the rationale of this doctrine, thus: "Reasons of public policy,
judicial orderliness, economy and judicial time and the interests of litigants, as well as
the peace and order of society, all require that stability be accorded the solemn and final
judgments of the courts or tribunals of competent jurisdiction."
7. NON-DISTRIBUTION OF THE ESTATE NOT A GROUND FOR THE RE-OPENING OF THE
TESTATE PROCEEDINGS. — The non-distribution of the estate, which is vigorously
denied by the petitioners, is not a ground for the re-opening of the testate proceedings.
A seasonable motion for execution should have been filed. In De Jesus vs. Daza, this
Court ruled that if the executor or administrator has possession of the share to be
delivered, the probate court would have jurisdiction within the same estate proceeding
to order him to transfer that possession to the person entitled thereto. This is
authorized under Section 1, Rule 90 of the Rules of Court. However, under Section 1,
Rule 90 of the Rules of Court. However, if no motion for execution is filed within the
reglementary period, a separate action for the recovery of the shares would be in order.
As We see it, the attack of 10 September 1973 on the Order was just a clever ploy to give
a semblance of strength and substance to the Omnibus Motion for Reconsideration by
depicting therein a probate court committing a series of fatal, substantive and
procedural blunders, which We find to be imaginary, if not deliberately fabricated.
DECISION
DAVIDE, JR., J p:
This is a petition for certiorari and prohibition under Rule 65 of the Revised Rules of
Court, with payer for a writ of preliminary injunction, to annul and set aside, for having
been issued without jurisdiction or with grave abuse of discretion amounting to lack of
jurisdiction, the following Orders of the respondent Judge in Special Proceedings No.
3309-R of Branch VIII of the then Court of First Instance (now Regional Trial Court) of
Cebu entitled "In The Matter of the Petition for Probate of the Last Will and Testament of
Remedios Mejia Vda. de Tiosejo:"
1. The Order of 26 February 1980 setting for hearing private respondents' Omnibus
Motion for Reconsideration 1 which was filed six (6) years, ten (10) months and
eighteen (18) days after the probate judgment was rendered and six (6) years and
twenty-one (21) days after the testate proceedings was declared closed and terminated;
and
2. The Order of 2 June 1980 finding the signature of the testatrix in the last will and
testament to be a forgery and (a) declaring the testatrix as having died intestate; (b)
declaring the testamentary dispositions in said last will and testament as null and void;
(c) setting aside the order dated 10 September 1973 declaring the testate proceedings
closed and terminated; (d) revoking the appointment of Jesus Fran as executor while
appointing respondent Concepcion M. Espina as administratrix; and (e) ordering the
conversion of the proceedings to one of intestacy. 2 This Order effectively annulled and
set aside the probate judgment of 13 November 1972.
Petitioners would also have this Court nullify all other actions of respondent Judge in
said Sp. Proc. No. 3309-R; restore the status quo therein prior to the issuance of the
foregoing orders; and permanently enjoin respondent Judge from reopening said
proceedings.
The following facts are not controverted:
Remedios M. Vda. de Tiosejo, a widow, died on 10 July 1972 in Cebu City with neither
descendants nor ascendants; she left real and personal properties located in Cebu City,
Ormoc City and Puerto Bello, Merida, Leyte. Earlier, on 23 April 1972, she executed a last
will and testament 3 wherein she bequeathed to her collateral relatives (brothers,
sisters, nephews and nieces) all her properties, and designated Rosario Tan or, upon the
latter's death, Jesus Fran, as executor to serve without bond. Instrumental witnesses to
the will were Nazario Pacquiao, Alcio Demerre and Primo Miro. LLpr
On 15 July 1972, Jesus Fran filed a petition with the Court of First Instance of Cebu for
the probate of Remedios' last will and testament. 4 The case was raffled to the original
Branch VIII thereof which was then presided over by Judge Antonio D. Cinco. The
petition alleged that Rosario Tan is not physically well and, therefore, will not be
assuming the position of administratix. Tan signed a waiver in favor of Jesus Fran on the
third page of the said petition. The probate court issued an order setting the petition for
hearing on 18 September 1972. Meanwhile, on 31 July 1972, the court appointed
petitioner Jesus Fran as special administrator.
On 10 August 1972, the private respondents, who are sisters to the deceased, filed a
manifestation 5 alleging that they needed time to study the petition because some heirs
who are entitled to receive their respective shares have been intentionally omitted
therein, and praying that they be given ample time to file their opposition, after which
the hearing be reset to another date.
Private respondents did not file any opposition. Instead, they filed on 18 September
1972 a "Withdrawal of Opposition to the Allowance of Probate (sic) of the Will" wherein
they expressly manifested, with their "full knowledge and consent that . . . they have no
objection of (sic) the allowance of the . . . will of the late Remedios Mejia Vda. de
Tiosejo," and that they have "no objection to the issuance of letters testamentary in
favor of petitioner, Dr. Jesus Fran." 6
No other party filed an opposition. The petition thus became uncontested.

During the initial hearing, petitioner Fran introduced the requisite evidence to establish
the jurisdictional facts.
Upon a determination that the court had duly acquired jurisdiction over the uncontested
petition for probate, Judge Cinco issued in open court an order directing counsel for
petitioner to present evidence proving the authenticity and due execution of the will
before the Clerk of Court who was, accordingly, so authorized to receive the same.
The reception of evidence by the Clerk of Court immediately followed. Petition Fran's
first witness was Atty. Nazario R. Pacquiao, one of the subscribing witnesses to the will.
The original of the will, marked as Exhibit "F", and its English translation, marked as
Exhibit "F-Translation", were submitted to the Clerk of Court. 7 Petition Fran was the
second and also the last witness. He enumerated the names of the surviving heirs of the
deceased.
On 13 November 1972, the probate court rendered a decision admitting to probate the
will of the testatrix, Remedios Mejia Vda. de Tiosejo, and appointing petitioner Fran as
executor thereof. 8 The dispositive portion of the decision reads:
"WHEREFORE, in view of all the foregoing, judgment is hereby rendered declaring the
last will and testament of the deceased Remedios Mejia Vda. de Tiosejo marked as
Exhibit F as admitted to probate. Dr. Jesus Fran is hereby appointed as executor of the
will. Let letters testamentary be issued in favor of Dr. Jesus Fran. The special
administrator's bond put up by Dr. Jesus Fran as special administrator duly approved by
this Court shall serve and be considered as the executor's bond considering that the
special administrator and executor are one and the same person."
The requisite notice to creditors was issued, but despite the expiration of the period
therein fixed, no claim was presented against the estate.
On 4 January 1973, petitioner Fran filed an Inventory of the Estate; 9 copies thereof
were furnished each of the private respondents.
Subsequently, a Project of Partition based on the dispositions made in the will and
signed by all the devisees and legatees, with the exception of Luis Fran, Remedios C.
Mejia and respondent Concepcion M. Espina, was submitted by the executor for the
court's approval. 10 Said legatees and devisees submitted certificates wherein they
admit receipt of a copy of the Project of Partition together with the notice of hearing,
and state that they had no objection to its approval. 11
The notice of hearing referred to in these certifications is the 6 August 1973 notice
issued by the Clerk of Court setting the hearing on the Project of Partition for 29 August
1973. 12
After the hearing on the Project of Partition, the court issued its Order of 10 September
1973 13 approving the same, declaring the parties therein as the only heirs entitled to
the estate of Remedios Mejia Vda. de Tiosejo, directing the administrator to deliver to
the said parties their respective shares and decreeing the proceedings closed. The
dispositive portion thereof reads:
"WHEREFORE, the signers (sic) to the project of partition are declared the only heirs
entitled to the estate; the project of partition submitted is ordered approved and the
administrator is ordered to deliver to each one of them their respective aliquot parts as
distributed in the said project of partition. It is understood that if there are expenses
incurred or to be incurred as expenses of partition, Section 3 of Rule 90 shall be
followed.
Let this proceedings be now declared closed.
SO ORDERED."
Thereafter, the aforesaid Branch VIII of the Court of First Instance of Cebu was
converted to a Juvenile and Domestic Relations Court. On November 1978, by virtue of
Presidential Decree No. 1439, Branch XVII (Danao City) of the Court of First Instance of
Cebu, presided over by herein respondent Judge, was officially transferred to Cebu City
and renumbered as Branch VIII.
On 1 October 1979, private respondents filed with the new Branch VIII an Omnibus
Motion for Reconsideration of the probate judgment of 13 November 1972 and on the
Order of partition of 10 September 1973; in said motion, they ask the court to declare
the proceedings still open and admit their opposition to the allowance of the will, 14
which they filed on 1 October 1979. They allege that: (a) they were not furnished with a
copy of the will; (b) the will is a forgery; (c) they were not notified of any resolution or
order on their manifestation requesting time within which to file their opposition, or of
the order authorizing the clerk of court to receive the evidence for the petitioner, or of
the order closing the proceedings; (d) the reception of evidence by the clerk of court was
void per the ruling in Lim Tanhu vs. Ramolete; 15 (e) the project of partition contains no
notice of hearing and they were not notified thereof; (f) the petitioner signed the project
of partition as administrator and not as executor, thereby proving that the decedent
died intestate; (g) the petitioner did not submit any accounting as required by law; and
(h) the petitioner never distributed the estate to the devisees and legatees.
In a detailed opposition 16 to the above Omnibus Motion for Reconsideration, petitioner
Fran refuted all the protestations of private respondents. Among other reasons, he
stresses therein that: (a) private respondents are in estoppel to question the will
because they filed their Withdrawal Of Opposition To The Allowance of Will which
states that after thoroughly studying the petition, to which was attached a copy of the
English translation of the will, they have no objection to its allowance; the order
directing the clerk of court to receive the evidence was dictated in open court in the
presence of private respondents; private respondent Maria M. Gandiongco signed the
Project of Partition and private respondent Concepcion M. Espina submitted a
certification stating therein that she received the notice of hearing therefore and has no
objection to its approval; (b) except for some properties, either covered by a usufruct
under the will or agreed upon by the parties to be held in common by reason of its
special circumstance, there was an actual distribution of the estate in accordance with
the Project of Partition; insofar as private respondents are concerned, they not only
received their respective shares, they even purchased the shares of the other devisees.
To top it all, private respondents' children, namely Rodrigo M. Gandiongco, Jr. and Victor
Espina, mortgaged their respective shares in favor of a bank.
Notwithstanding petitioners' objections, respondent Judge issued on 26 February 1980

an Order setting for hearing the said Omnibut Motion for Reconsideration on 8 April
1980 so that "the witnesses and the exhibits (may be) properly ventilated." 17
On 25 March 1980, petitioners filed a Motion to Dismiss the Omnibus Motion and to
Reconsider the 26 February 1980 Order setting it for hearing on 17 April 1980, 18 but
the respondent Judge prematurely denied it for lack of merit in his Order of 31 March
1980. 19
Consequently, on 8 April 1980, the instant petition was filed challenging the jurisdiction
of the lower court in taking cognizance of the Omnibus Motion for Reconsideration
considering that the probate judgment and the order approving the Project of Partition
and terminating the proceedings had long become final and had in fact been executed.
Private respondents had long lost their right to appeal therefrom. The Omnibus Motion
for Reconsideration cannot likewise be treated as a petition for relief from judgment for
under Rule 38 of the Revised Rules of Court, the same must be filed within sixty (60)
days from receipt of notice of the judgment/order and within six (6) months from the
date of said judgment. Therefore, this remedy can no longer be availed of. LexLib
On 8 April 1980, the date the instant petition was filed, respondent Judge proceeded
with the hearing of the Omnibus Motion for Reconsideration. He received the
testimonies of private respondents and one Romeo O. Varena, an alleged handwriting
expert fro the Philippine Constabulary, who averred that the signature of the testatrix
on the will is a forgery. The respondent Judge likewise issued an Order on the same date
stating that unless he received a restraining order from this Court within twenty (20)
days therefrom, he will reopen Sp. Proc. No. 3309-R.
On 14 April 1980, petitioners filed a Supplemental Petition asking this Court to restrain
respondent Judge from reopening the case. 20
In their voluminous Comments and Opposition to the petition and Supplemental

Petition, 21 private respondents not only amplify in great detail the grounds raised in
their Omnibus Motion for Reconsideration, they also squarely raise for the first time the
following issues:
(a) The probate court never acquired jurisdiction over the case since petitioner Jesus
Fran failed to submit to the court the original of the will.
(b) They were deprived of the opportunity to examine the will as petitioner Jesus Fran
did not attach it to the petition; what was attached was only the English translation of
the will.
(c) Even assuming that the probate judge could validly delegate the reception of
evidence to the Clerk of Court, the proceeding before the latter would sill be void as he
failed to take an oath of office before entering upon his duties as commissioner and
failed to render a report on the matters submitted to him.
(d) Respondent Maria M. Vda. de Gandiongco was defrauded into (sic) signing the
Project of Partition and respondent Concepcion M. Espina, her certification, when they
were misled by petitioner Fran into believing that the Agreement of Partition to be
submitted to the court is the Extra Judicial Patrician they signed on 7 May 1973.
(e) Petitioner Fran is guilty of fraud in undervaluing the estate of the late Remedios
Media Vda. de Tiosejo by reporting properties worth only P400,000.00 when in truth
and in fact the estate has an aggregate value of P2,094,333.00.
In the Resolution dated 2 June 1980, We issued a restraining order enjoining respondent
Judge from reopening Sp. Proc. No. 3309-R. 22
However, on the same date, before the restraining order was served on him, respondent
Judge issued the impugned order declaring the testamentary dispositions of the will
void, finding the signature of the late Remedios Media Vda. de Tiosejo to be a forgery,
decreeing the reopening of Sp. Proc. No. 3309-R and converting the same into an
intestate proceeding. 23
Hence, on 6 June 1980, petitioners filed their Second Supplemental Petition 24 asking
this Court to declare as null and void the Order of 2 June 1980 and, pending such
declaration, to restrain respondent Judge from enforcing the same. Private respondents
filed their Comment and Opposition to the Second Supplemental Petition on 9 July 1980.
Thereafter, as mandated in the resolution of 30 June 1980, 25 this Court gave due course
to this case and required the parties to file their respective Memoranda, which private
respondents complied with on 16 August 1980; 26 petitioners filed theirs on 27 August
1980. 27 Consequently, the parties continued to file several pleadings reiterating
substantially the same allegations and arguments earlier submitted to this Court.
On 22 March 1984, counsel for petitioners filed a manifestation informing this Court of
the death of petitioner Fran on 29 February 1984 and enumerating therein his surviving
heirs. On 2 April 1984, this Court resolved to have said heirs substitute him in this case.
Over a year later, respondent Maria M. Vda. de Gandiongco filed an affidavit, 28 sworn to
before the acting Clerk of Court of the Regional Trial Court in Cebu City, disclosing the
following material facts: (a) she signed the Omnibus Motion for Reconsideration dated 1
October 1979 without knowing or reading the contents thereof; (b) she saw the will of
the late Remedios Media Vda. de Tiosejo written in the Cebuano dialect after the same
was executed by the latter; the said will bearing the authentic signature of Remedios
was the very one presented to the probate court by petitioner's counsel; (c) she received
the notice of hearing of the petition for probate and because she was convinced that the
signature of the testatrix was genuine, she, together with Concepcion M. Espina,
withdrew her opposition; (d) she received her share of the estate of the late Remedios
Media Vda. de Tiosejo which was distributed in accordance with the provisions of the
latter's will; and (e) she did not authorize Atty. Numeriano Estenzo or other lawyers to
present a motion to this Court after 25 February 1981 when Estenzo withdrew as
counsel for private respondents. She then asks this Court to consider as withdrawn her
Opposition to the Allowance of the Will, her participation in the Omnibus Motion for
Reconsideration and her Opposition to this petition.
Due to the development, We required private respondent Concepcion M. Espina to

comment on the affidavit of private respondent Maria M. Vda. de Gandiongco.
On 17 August 1985, private respondents filed a joint manifestation 29 wherein they

claim that Maria M. Vda. de Gandiongco does not remember executing the affidavit. A
few weeks before the affidavit was filed, particularly on 17 June 1985, Maria M. Vda. de
Gandiongco was confined in the hospital; she could not recall having signed, during this
period, any affidavit or recognized her sisters and other relatives.
On 19 September 1985, respondent Maria M. Vda. de Gandiongco, through special
counsel, filed a Manifestation/Motion with a second Affidavit attached thereto 30
confessing that she signed the Joint Manifestation dated 16 August 1985 "without
knowing or being informed of its contents, and only upon Mrs. Concepcion Espina's
request." She reiterated her desire to withdraw from the Omnibus Motion for
Reconsideration filed in Sp. Proc. No. 3309-R as well as from the instant petition.
Despite the valiant attempt of private respondent Concepcion M. Espina to influence and
control the action of Maria Gandiongco, there is nothing in the records that would cast
any doubt on the irrevocability of the latter's decision to withdraw her participation in
the Omnibus Motion for Reconsideration and Opposition to this case. That decision,
however, is not a ground for dropping her as a private respondent as the respondent
Judge had already issued the abovementioned Order of 2 June 1980.
The petition and the supplemental petitions are impressed with merit.
We do not hesitate to rule that the respondent Judge committed grave abuse of
discretion amounting to lack of jurisdiction when he granted the Omnibus Motion for
Reconsideration and thereafter set aside the probate judgment of 13 November 1972 in
Sp. Proc. No. 3309-R, declared the subject will of the testatrix a forgery, nullified the
testamentary dispositions therein and ordered the conversion of the testate proceedings
into one of intestacy.
It is not disputed that private respondents filed on the date of the initial hearing of the
petition their "Withdrawal of Opposition To Allowance of Probate (sic) Will" wherein
they unequivocally state that they have no objection to the allowance of the will. For all
legal intents and purposes, they became proponents of the same.
After the probate court rendered its decision on 13 November 1972, and there having
been no claim presented despite publication of notice to creditors, petitioner Fran
submitted a Project of Partition which private respondent Maria M. Vda. de Gandiongco
voluntarily signed and to which private respondent Espina expressed her conformity
through a certification filed with the probate court. Assuming for the sake of argument
that private respondents did not receive a formal notice of the decision as they claim in
their Omnibus Motion for Reconsideration, these acts nevertheless constitute
indubitable proof of their prior actual knowledge of the same. A formal notice would
have been an idle ceremony. In testate proceedings, a decision logically precedes the
project of partition, which is normally an implementation of the will and is among the
last operative acts to terminate the proceedings. If private respondents did not have
actual knowledge of the decision, they should have desisted from performing the above
acts and instead demanded from petitioner Fran the fulfillment of his alleged promise to
show them the will. The same conclusion refutes and defeats the plea that they were not
notified of the order authorizing the Clerk of Court to receive the evidence and that the
Clerk of Court did not notify them of the date of the reception of evidence. Besides, such
plea must fail because private respondents were present when the court dictated the
said order.
Neither do We give any weight to the contention that the reception of evidence by the
Clerk of Court is null and void per the doctrine laid down in Lim Tanhu v. Ramolete. 31
In the first place, Lim Tanhu was decided on 29 August 1975, nearly four (4) years after
the probate court authorized the Clerk of Court to receive the evidence for the petitioner
in this case. A month prior to Lim Tanhu, or on 30 July 1975, this Court, in Laluan vs.
Malpaya, 32 recognized and upheld the practice of delegating the reception of evidence
to Clerks of Court. Thus:
"No provision of law or principle of public policy prohibits a court from authorizing its
clerk of court to receive the evidence of a party litigant. After all, the reception of
evidence by the clerk of court constitutes but a ministerial task — the taking down of
the testimony of the witnesses and the marking of the pieces of documentary evidence,
if any, adduced by the party present. This task of receiving evidence precludes, on the
part of the clerk of court, the exercise of judicial discretion usually called for when the
other party who is present objects to questions propounded and to the admission of the
documentary evidence proffered. 33 More importantly, the duty to render judgment on
the merits of the case still rests with the judge who is obliged to personally and directly
prepare the decision based upon the evidence reported. 34
But where the proceedings before the clerk of court and the concomitant result thereof,
i.e., the judgment rendered by the court based on the evidence presented in such limited
proceedings, prejudice the substantial rights of the aggrieved party, then there exists
sufficient justification to grant the latter complete opportunity to thresh out his case in
court." 35
Monserrate vs. Court of Appeals, 36 decided on 29 September 1989, reiterated this rule.
Lim Tanhu then cannot be used as authority to nullify the order of the probate court
authorizing the Clerk of Court to receive the evidence for the rule is settled that "when a
doctrine of this Court is overruled and a different view is adopted, the new doctrine
should be applied prospectively, and should not apply to parties who had relied on the
old doctrine and acted on the faith thereof." 37 It may also be emphasized in this
connection that Lim Tanhu did not live long; it was subsequently overruled in
Gochangco vs. Court of First Instance of Negros Occidental, 38 wherein this Court, en
banc, through Justice, now Chief Justice, Andres R. Narvasa, in reference to what the trial
court termed as "the doctrinal rule laid down in the recent case in Lim Tan Hu (sic) vs.
Ramolete," ruled:
"Now, that declaration does not reflect long observed and established judicial practice
with respect to default cases. It is not quite consistent, too, with the several explicitly
authorized instances under the Rules where the function of receiving evidence and even
of making recommendatory findings of facts on the basis thereof may be delegated to
commissioners, inclusive of the Clerk of Court. These instances are set out in Rule 33, . . .;
Rules 67 and 69, . . .; Rule 86, . . .; Rule 136, . . . In all these instances, the competence of
the clerk of court is assumed. Indeed, there would seem, to be sure, nothing intrinsically
wrong in allowing presentation of evidence ex parte before a Clerk of Court. Such a
procedure certainly does not foreclose relief to the party adversely affected who, for
valid cause and upon appropriate and seasonable application, may bring about the
undoing thereof or the elimination of prejudice thereby caused to him; and it is, after all,
the Court itself which is duty bound and has the ultimate responsibility to pass upon the
evidence received in this manner, discarding in the process such proofs as are
incompetent and then declare what facts have thereby been established. In considering
and analyzing the evidence preparatory to rendition of judgment on the merits, it may
not unreasonably be assumed that any serious error in the ex-parte presentation of
evidence, prejudicial to any absent party, will be detected and duly remedied by the
Court, and/or may always, in any event, be drawn to its attention by any interested
party.
xxx xxx xxx
It was therefore error for the Court a quo to have declared the judgment by default to be
fatally flawed by the fact that the plaintiff's evidence had been received not by the Judge
himself but by the clerk of court."
The alternative claim that the proceedings before the Clerk of Court were likewise void
because said official did not take an oath is likewise untenable. The Clerk of Court acted
as such when he performed the delegated task of receiving evidence. It was not
necessary for him to take an oath for that purpose; he was bound by his oath of office as
a Clerk of Court. Private respondents are obviously of the impression that by the
delegation of the reception of evidence to the Clerk of Court, the latter became a
commissioner as defined under Rule 33 of the Rules of Court entitled Trial by
Commissioner. This is not correct; as this Court said in Laluan:
"The provisions of Rule 33 of the Rules of Court invoked by both parties properly relate
to the reference by a court of any or all of the issues in a case to a person so
commissioned to act or report thereon. These provisions explicitly spell out the rules
governing the conduct of the court, the commissioner, and the parties before, during,
and after the reference proceedings. Compliance with these rules of conduct becomes
imperative only when the court formally orders a reference of the case to a
commissioner. Strictly speaking then, the provisions of Rule 33 find no application to the
case at bar where the court a quo merely directed the clerk of court to take down the
testimony of the witnesses presented and to mark the documentary evidence proffered
on a date previously set for hearing."
Belatedly realizing the absence of substance of the above grounds, private respondents
now claim in their Comments to the Petition and the Supplemental Petition that the trial
court never acquired jurisdiction over the petition because only the English translation
of the will — and not a copy of the same — was attached to the petition; the will was not
even submitted to the court for their examination within twenty (20) days after the
death of the testatrix; and that there was fraud in the procurement of the probate
judgment principally because they were not given any chance to examine the signature
of the testatrix and were misled into signing the withdrawal of their opposition on the
assurance of petitioner Fran and their sister, Rosario M. Tan, that the will would be
shown to them during the trial. These two grounds easily serve as the bases for the
postulation that the decision is null and void and so, therefore, their omnibus motion
became all the more timely and proper.
The contentions do not impress this Court.
In Santos vs. Castillo 39 and Salazar vs. Court of First Instance of Laguna, 40 decided six
(6) months apart in 1937, this Court already ruled that it is not necessary that the
original of the will be attached to the petition. In the first, it ruled: "The original of said
document [the will] must be presented or sufficient reasons given to justify the
nonpresentation of said original and the acceptance of the copy or duplicate thereof ."
41 In the second case, this Court was more emphatic in holding that:
"The law is silent as to the specific manner of bringing the jurisdictional allegations
before the court, but through practice the jurisprudence have established that they
should be made in the form of an application and filed with the original of the will
attached thereto. It has been the practice in some courts to permit attachment of a mere
copy of the will to the application, without prejudice to producing the original thereof at
the hearing or when the court so requires. This precaution has been adopted by some
attorneys to forestall its disappearance, which has taken place in certain cases." 42
That the annexing of the original will to the petition is not a jurisdictional requirement is
clearly evident in Section 1, Rule 76 of the Rules of Court which allows the filing of a
petition for probate by the person named therein regardless of whether or not he is in
possession of the will, or the same is lost or destroyed. The section reads in full as
follows:
"SECTION 1. Who may petition for the allowance of will. — Any executor, devisee, or
legatee named in a will, or any other person interested in the estate, may, at any time
after the death of the testator, petition the court having jurisdiction to have the will
allowed, whether the same be in his possession or not, or is lost or destroyed."
In the instant case, a copy of the original will and its English translation were attached to
the petition as Annex "A" and Annex "A-1", respectively, and made integral part of the
same. It is to be presumed that upon the filing of the petition the Clerk of Court, or his
duly authorized subordinate, examined the petition and found that the annexes
mentioned were in fact attached thereto. If they were not, the petition cannot be said to
have been properly presented and the Clerk of Court would not have accepted it for
docketing. Under Section 6, Rule 136 of the Rules of Court, the Clerk of Court shall
receive and file all pleadings and other papers properly presented, endorsing on each
such paper the time when it was filed. The presumption of regularity in the performance
of official duty militates against private respondents' claim that Annex "A" of the petition
was not in fact attached thereto.
The certification of the Assistant Clerk of Court issued on 8 April 1980, 43 or SIX (6)
months after the filing of the motion for reconsideration, to the effect that as per
examination of the records of Sp. Proc. No. 3309-R, "the copy of the Will mentioned in
the petition as Annex "A" is not found to be attached as of this date in the said petition;
only the English Translation of said Will is attached thereof (sic) as Annex "A-1" does not
even save the day for private respondents. It is not conclusive because it fails to state the
fact that as hereafter shown, the pages of the records which correspond to the four (4)
pages of Annex "A" were missing or were detached therefrom. As emphatically asserted
by the petitioners in their Reply to the Comments of private respondents, 44 duly
supported by a certification of the former Clerk of Court of the original Branch VIII of the
court below, 45 and which private respondents merely generally denied in their motion
for reconsideration with comments and opposition to consolidated reply, 46 the
four-page xerox copy of the will, marked as Annex "A" of the petition, became, as
properly marked by the personnel of the original Branch VIII of the court below upon
the filing of the petition, pages 5, 6, 7 and 8 while the translation thereof, marked as
Annex "A-1", became pages 9, 10, 11 and 12 of the records. The markings were done in
long hand. The records of the case were thereafter sent to the Clerk of Court, 14th
Judicial District, Cebu City on 9 February 1978. These records, now in the possession of
the respondent Judge, show that said pages 5, 6, 7 and 8 in long hand are missing. As a
consequence thereof, petitioners filed with the Executive Judge of the court below an
administrative complaint.
It is not likewise disputed that the original of the will was submitted in evidence and
marked as Exhibit "F". It forms part of the records of the special proceedings — a fact
which private respondents admit in their Omnibus Motion for Reconsideration, thus:
"9. That an examination of the alleged will of our deceased sister has revealed that the
signatures at the left hand margin of Exhibit "F", are written by (sic) different person
than the signature appearing at the bottom of said alleged will . . ." 47
The availability of the will since 18 September 1972 for their examination renders
completely baseless the private respondents' claim of fraud on petitioner Fran's part in
securing the withdrawal of their opposition to the probate of the will. If indeed such
withdrawal was conditioned upon Fran's promise that the private respondents would
be shown the will during the trial, why weren't the appropriate steps taken by the latter
to confront Fran about this promise before certifications of conformity to the project of
partition were filed?
Granting for the sake of argument that the non-fulfillment of said promise constitutes
fraud, such fraud is not of the kind which provides sufficient justification for a motion
for reconsideration or a petition for relief from judgment under Rule 37 and Rule 38,
respectively, of the Rules of Court, or even a separate action for annulment of judgment.
It is settled that for fraud to be invested with such sufficiency, it must be extrinsic or
collateral to the matters involved in the issues raised during the trial which resulted in
such judgment. 48
In Our jurisdiction, the following courses of action are open to an aggrieved party to set
aside or attack the validity of a final judgment:
(1) Petition for relief under Rule 38 of the Rules of Court which must be filed within
sixty (60) days after learning of the decision, but not more than six (6) months after
such decision is entered;
(2) By direct action, via a special civil action for certiorari, or by collateral attack,
assuming that the decision is void for want of jurisdiction;
(3) By an independent civil action under Article 1114 of the Civil Code, assuming that
the decision was obtained through fraud and Rule 38 can not be applied. 49
It is not difficult to see that private respondents had lost their right to file a petition for
relief from judgment, it appearing that their omnibus motion for reconsideration was
filed exactly six (6) years, ten (10) months and twenty-two (22) days after the rendition
of the decision, and six (6) years, one (1) month and thirteen (13) days after the court
issued the order approving the Project of Partition, to which they voluntarily expressed
their conformity through their respective certifications, and closing the testate
proceedings.
Private respondents did not avail of the other two (2) modes of attack.
The probate judgment of 13 November 1972, long final and undistributed by any
attempt to unsettle it, had inevitably passed beyond the reach of the court below to
annul or set the same aside, by mere motion, on the ground that the will is a forgery.
Settled in the rule that the decree of probate is conclusive with respect to the due
execution of the will and it cannot be impugned on any of the grounds authorized by law,
except that of fraud, in any separate or independent action or proceeding. 50 We wish
also to advert to the related doctrine which holds that final judgments are entitled to
respect and should not be disturbed; otherwise, there would be a wavering of trust in
the courts. 51 In Lee Bun Ting vs. Aligaen, 52 this Court had the occasion to state the
rationale of this doctrine, thus:
"Reasons of public policy, judicial orderliness, economy and judicial time and the
interests of litigants, as well as the peace and order of society, all require that stability
be accorded the solemn and final judgments of the courts or tribunals of competent
jurisdiction."
This is so even if the decision is incorrect 53 or, in criminal case, the penalty imposed is
erroneous. 54
Equally baseless and unmeritorious is private respondents' contention that the order
approving the Project of Partition and closing the proceedings is null and void because
the Project of Partition did not contain a notice of hearing and that they were not
notified of the hearing thereon. In truth, in her own certification 55 dated 5 September
1973, private respondent Concepcion M. Espina admitted that she "received a copy of
the Project of Partition and the Notice of Hearing in the above-entitled proceeding, and
that she has no objection to the approval of the said Project of Partition." The notice of
hearing she referred to is the Notice of Hearing For Approval of Project of Partition
issued on 6 August 1973 by the Clerk of Court. 56 Private respondent Espina was lying
through her teeth when she claimed otherwise.
The non-distribution of the estate, which is vigorously denied by the petitioners, is not a
ground for the re-opening of the testate proceedings. A seasonable motion for execution
should have been filed. In De Jesus vs. Daza, 57 this Court ruled that if the executor or
administrator has possession of the share to be delivered, the probate court would have
jurisdiction within the same estate proceeding to order him to transfer that possession
to the person entitled thereto. This is authorized under Section 1, Rule 90 of the Rules of
Court. However, under Section 1, Rule 90 of the Rules of Court. However, if no motion
for execution is filed within the reglementary period, a separate action for the recovery
of the shares would be in order. As We see it, the attack of 10 September 1973 on the
Order was just a clever ploy to give a semblance of strength and substance to the
Omnibus Motion for Reconsideration by depicting therein a probate court committing a
series of fatal, substantive and procedural blunders, which We find to be imaginary, if
not deliberately fabricated.
WHEREFORE, the instant petition and supplemental petitions are GRANTED. The Order
of respondent Judge of 2 June 1980 and all other orders issued by him in Sp. Proc. No.
3309-R, as well as all other proceedings had therein in connection with or in relation to
the Omnibus Motion for Reconsideration, are hereby ANNULLED and SET ASIDE.
The restraining order issued on 2 June 1980 is hereby made PERMANENT.
Costs against private respondent Concepcion M. Espina.
SO ORDERED.
Gutierrez, Jr., Bidin and Romero, JJ ., concur.
Feliciano, J ., took no part.
||| (Heirs of Fran v. Salas, G.R. No. 53546, [June 25, 1992], 285 PHIL 789-814)

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[G.R. No. 38338. January 28, 1985.]

IN THE MATTER OF THE INTESTATE ESTATE OF ANDRES G. DE JESUS AND BIBIANA

Raul S. Sison Law Office for petitioners.

Rafael Dinglasan, Jr. for heir M. Roxas.

1. CIVIL LAW; WILLS AND SUCCESSION; MANNER OF EXECUTION OF WILLS;

3. ID.; ID.; SOLEMNITIES IN THE EXECUTION OF WILLS; PURPOSE. — The purpose of

Petitioner Simeon R. Roxas testified that after his appointment as administrator, he

Respondent Luz R. Henson, another compulsory heir filed an "opposition to probate"

We agree with the petitioner.

In Justice Capistrano's concurring opinion in Heirs of Raymundo Castro v. Bustos (27

xxx xxx xxx

xxx xxx xxx

In particular, a complete date is required to provide against such contingencies as that of

The facts are as follows:

DEED OF ABSOLUTE SALE

I, MAXIMINO A. NAZARENO, Filipino, married to Aurea Poblete-Nazareno, of legal age

"TRANS. CERT. OF TITLE NO. 140946"

thence N. 79 deg. 53'E., 12.50 m. to point 2;

thence S. 10 deg. 07'E., 40.00 m. to point 3;

thence S. 79 deg. 53'W., 12.50 m. to point 4;

thence N. 10 deg. 07'W., 40.00 m. to the point

"TRANS. CERT. OF TITLE NO. 132019"

thence N. 23 deg. 28 min. E., 11.70 m. to point "2";

thence S. 66 deg. 32 min. E., 18.00 m. to point "3";

thence S. 23 deg. 28 min. W., 11.70 m. to point "4";

thence N. 66 deg. 32. min. W., 18.00 m. to the point

"TRANS. CERT. OF TITLE NO. 118885"

thence S. 25 deg. 00'E., 12.00 m. to point "2";

thence S. S4 deg. 59'W., 29.99 m. to point "3";

thence N. 25 deg. 00'W., 12.00 m to point "4";

"TRANS. CERT. OF TITLE NO. 118886"

thence S. 64 deg. 59'W., 29.99 m. to point "2";

thence N. 25 deg. 00'W., 12.00 m. to point "3";

thence N. 64 deg. 59'E., 29.99 m. to point "4";

thence S. 26 deg. 00'E., 12.00 m. to the point of

thence S. 64 deg. 58'W., 30.00 m. to point "2";

thence N. 25 deg. 00'W., 12.00 m. to point "3";

thence N. 64 deg. 59'E., 29.99 m. to point "4";

thence S.25 deg. 00'E., 12.00 m. to point of

thence S. 25 deg. 00'E., 12.00 m. to point "2";

thence S. 65 deg. 00'W., 30.00 m. to point "3";

thence S. 65 deg. 00'W., 12.00 m. to point "4";

thence N. 64 deg. 58'E., 30.00 m. to the point of

That for and in consideration of the sum of FORTY-THREE THOUSAND PESOS

1. Romeo — Lot 25-L (642 m2)

2. Natividad — Lots 23 (312 m2) and 24 (379 m2)

3. Maximino, Jr. — Lots 6 (338 m2) and 7 (338 m2)

4. Pacifico — Lots 13 (360 m2) and 14 (360 m2)

5. Jose — Lots 10 (360 m2) and 11 (360 m2)

The defendants' counterclaim is dismissed. Likewise, the third-party complaint is

2. Except as to Lots 13 and 14 ownership of which has passed on to third persons, it is

Petitioners raise the following issues:

1. WHETHER OR NOT THE UNCORROBORATED TESTIMONY OF PRIVATE RESPONDENT

2. WHETHER OR NOT THE RESPONDENT COURT GROSSLY MISAPPRECIATED THE

B) THE EXECUTION OF AN EXTRA-JUDICIAL PARTITION WITH WAIVER OF RIGHTS

C) THE ADMISSION MADE BY MAXIMINO A. NAZARENO, SR. IN HIS TESTIMONY IN

D) THE ADMISSIONS MADE BY ROMEO P. NAZARENO HIMSELF CONTAINED IN A FINAL

5. WHETHER OR NOT AS A CONSEQUENCE, THE TITLE ISSUED IN THE NAME OF

We find the petition to be without merit.

As shown in the preceding disquisition, Natividad P. Nazareno acquired the property in

In affirming this ruling, the Court of Appeals said:

Fourth. Petitioners argue further:

An obligation is indivisible when it cannot be validly performed in parts, whatever may