MANUELA REBACA POTOT, ET AL.
, and THE HONORABLE COURT OF
Article 838: De la Cerna v. Potot
G.R. No. L-20234, 23 December 1964, 12 SCRA 576
FACTS:
On May 19, 1939, Spouses Bernabe de la Serna and Gervasia Rebaca, executed a joint last will
and testament where they willed that their 2 parcels of land together with all improvements
thereon be given to Manuela Rebaca, their niece, whom they have nutured since childhood and
that while each of the testators is yet living, she will continue to enjoy the fruits of the two lands.
Bernabe dela Serna died on August 30, 1939, and the aforesaid will was submitted to probate
by said Gervasia and Manuela before the Court of First Instance of Cebu. By order of Oct. 31,
1939, the Court admitted for probate the said will but only for the part of Bernabe.
When Gervasia died, another petition for probate was instituted by Manuela, but because she
and her attorney failed to appear in court, the petition was dismissed. The Court of First Instance
ordered the petition heard and declared the testament null and void, for being executed contrary
to the prohibition of joint wills in the Civil Code (Art. 669, Civil Code of 1889 and Art. 818, Civil
Code of the Philippines); but on appeal by the testamentary heir, the Court of Appeals reversed,
on the ground that the decree of probate in 1939 was issued by a court of probate jurisdiction
and conclusive on the due execution of the testament.
ISSUE:
W/N the will may be probated.
HELD:
The Supreme Court affirmed the CA decision and held that once a decree of probate becomes
final in accordance with the rules of procedure, it is res judicata. Admittedly the probate of the
will in 1939 was erroneous, however, because it was probated by a court of competent
jurisdiction it has conclusive effect and a final judgment rendered on a petition for the probate of
a will is binding upon the whole world. There was an error on the court but the decree has now
become final.
Nevertheless, the probate in 1939 only affected the share of Bernabe and could not include the
disposition of the share of his wife which was still alive then, her properties were still not within
the jurisdiction of the court. Hence, joint will being prohibited by law, the validity of the will with
respect to her, must be on her death, be re-examined and adjudicated de novo — since a joint
will is considered a separate will of each testator.
The undivided interest of the wife should pass upon her death to her intestate heirs and not to
the testamentary heir. Thus as to the disposition of the wife, the will cannot be given effect.
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
G.R. No. L-20234 December 23, 1964
PAULA DE LA CERNA, ET AL., petitioners,
vs.
APPEALS, respondents.
Philip M. Alo and Crispin M. Menchavez for petitioners.
Nicolas Jumapao for respondents.
REYES, J.B.L., J.:
Appeal by Paula de la Cerna and others from a decision of the Court of Appeals, Sixth Division
(C.A.-G.R. No. 23763-R) reversing that of the Court of First Instance of Cebu (Civ. Case No. R-
3819) and ordering the dismissal of an action for partition.
The factual background appears in the following portion of the decision of the Court of Appeals
(Petition, Annex A, pp. 2-4):
It appears that on May 9, 1939, the spouses, Bernabe de la Serna and Gervasia
Rebaca, executed a joint last will and testament in the local dialect whereby they
willed that "our two parcels of land acquired during our marriage together with all
improvements thereon shall be given to Manuela Rebaca, our niece, whom we have
nurtured since childhood, because God did not give us any child in our union, Manuela
Rebaca being married to Nicolas Potot", and that "while each of the testators is yet
living, he or she will continue to enjoy the fruits of the two lands aforementioned", the
said two parcels of land being covered by Tax No. 4676 and Tax No. 6677, both
situated in sitio Bucao, barrio Lugo, municipality of Borbon, province of Cebu. Bernabe
dela Serna died on August 30, 1939, and the aforesaid will was submitted to probate
by said Gervasia and Manuela before the Court of First Instance of Cebu which, after
due publication as required by law and there being no opposition, heard the evidence,
and, by Order of October 31, 1939; in Special Proceedings No. 499, "declara
legalizado el documento Exhibit A como el testamento y ultima voluntad del finado
Bernabe de la Serna con derecho por parte du su viuda superstite Gervasia Rebaca y
otra testadora al propio tiempo segun el Exhibit A de gozar de los frutos de los
terranos descritos en dicho documents; y habido consideracion de la cuantia de
dichos bienes, se decreta la distribucion sumaria de los mismos en favor de la
logataria universal Manuela Rebaca de Potot previa prestacion por parte de la misma
de una fianza en la sum de P500.00 para responder de cualesquiera reclamaciones
que se presentare contra los bienes del finado Bernabe de la Serna de los años
desde esta fecha" (Act Esp. 499, Testamentaria Finado Bernabe de la Serna) Upon
the death of Gervasia Rebaca on October 14, 1952, another petition for the probate of
the same will insofar as Gervasia was concerned was filed on November 6, 1952,
being Special Proceedings No. 1016-R of the same Court of First Instance of Cebu,
but for failure of the petitioner, Manuela R. Potot and her attorney, Manuel Potot to
appear, for the hearing of said petition, the case was dismissed on March 30, 1954
Spec. Proc. No. 1016-R, In the matter of the Probate of the Will of Gervasia Rebaca).
The Court of First Instance ordered the petition heard and declared the testament null and void,
for being executed contrary to the prohibition of joint wills in the Civil Code (Art. 669, Civil Code
of 1889 and Art. 818, Civil Code of the Philippines); but on appeal by the testamentary heir, the
Court of Appeals reversed, on the ground that the decree of probate in 1939 was issued by a
court of probate jurisdiction and conclusive on the due execution of the testament. Further, the
Court of Appeals declared that:
... . It is true the law (Art. 669, old Civil Code; Art. 818, new Civil Code). prohibits the
making of a will jointly by two or more persons either for their reciprocal benefit or for
the benefit of a third person. However, this form of will has long been sanctioned by
use, and the same has continued to be used; and when, as in the present case, one
 such joint last will and testament has been admitted to probate by final order of a
Court of competent jurisdiction, there seems to be no alternative except to give effect
to the provisions thereof that are not contrary to law, as was done in the case
of Macrohon vs. Saavedra, 51 Phil. 267, wherein our Supreme Court gave effect to
the provisions of the joint will therein mentioned, saying, "assuming that the joint will in
question is valid."
Whence this appeal by the heirs intestate of the deceased husband, Bernabe de la Cerna.
The appealed decision correctly held that the final decree of probate, entered in 1939 by the
Court of First Instance of Cebu (when the testator, Bernabe de la Cerna, died), has conclusive
effect as to his last will and testament despite the fact that even then the Civil Code already
decreed the invalidity of joint wills, whether in favor of the joint testators, reciprocally, or in favor
of a third party (Art. 669, old Civil Code). The error thus committed by the probate court was an
error of law, that should have been corrected by appeal, but which did not affect the jurisdiction
of the probate court, nor the conclusive effect of its final decision, however erroneous. A final
judgment rendered on a petition for the probate of a will is binding upon the whole world (Manalo
vs. Paredes, 47 Phil. 938; In re Estates of Johnson, 39 Phil. 156); and public policy and sound
practice demand that at the risk of occasional errors judgment of courts should become final at
some definite date fixed by law. Interest rei publicae ut finis set litium (Dy Cay vs. Crossfield, 38
Phil, 521, and other cases cited in 2 Moran, Comments on the Rules of Court (1963 Ed., p. 322).
Petitioners, as heirs and successors of the late Bernabe de la Cerna, are concluded by the 1939
decree admitting his will to probate. The contention that being void the will cannot be validated,
overlooks that the ultimate decision on Whether an act is valid or void rests with the courts, and
here they have spoken with finality when the will was probated in 1939. On this court, the
dismissal of their action for partition was correct.
But the Court of Appeals should have taken into account also, to avoid future misunderstanding,
that the probate decree in 1989 could only affect the share of the deceased husband, Bernabe
de la Cerna. It could not include the disposition of the share of the wife, Gervasia Rebaca, who
was then still alive, and over whose interest in the conjugal properties the probate court acquired
no jurisdiction, precisely because her estate could not then be in issue. Be it remembered that
prior to the new Civil Code, a will could not be probated during the testator's lifetime.
It follows that the validity of the joint will, in so far as the estate of the wife was concerned, must
be, on her death, reexamined and adjudicated de novo, since a joint will is considered a
separate will of each testator. Thus regarded, the holding of the court of First Instance of Cebu
that the joint will is one prohibited by law was correct as to the participation of the deceased
Gervasia Rebaca in the properties in question, for the reasons extensively discussed in our
decision in Bilbao vs. Bilbao, 87 Phil. 144, that explained the previous holding in Macrohon vs.
Saavedra, 51 Phil. 267.
Therefore, the undivided interest of Gervasia Rebaca should pass upon her death to her heirs
intestate, and not exclusively to the testamentary heir, unless some other valid will in her favor is
shown to exist, or unless she be the only heir intestate of said Gervasia.
It is unnecessary to emphasize that the fact that joint wills should be in common usage could not
make them valid when our Civil Codes consistently invalidated them, because laws are only
repealed by other subsequent laws, and no usage to the contrary may prevail against their
observance (Art. 5, Civ. Code of 1889; Art. 7, Civil Code of the Philippines of 1950).
WITH THE FOREGOING MODIFICATION, the judgment of the Court of Appeals in CA-G.R. No.
23763-R is affirmed. No Costs.
Bengzon, C.J., Bautista, Angelo, Concepcion, Barrera, Paredes, Dizon Regala, Makalintal,
Bengzon, J.P., and Zaldivar, JJ., concur.
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXxxxxxx
2. Gallanosa v Arcangel081 GR No. L-29300, 21 June 1978, Aquino, J. Digested by Dean
Lozarie • Law 105 – Succession Topic:
Dis/allowance of wills The testator's nephews and nieces mounted an unsuccessful opposition
to the probate of the will. After the decree of probate was issued, they twice sued to have the will
"annulled," arguing that the will was procured through deceit. The SC said they have no cause of
action. The decree of probate is conclusive as to the due execution and formal validity of a will.
FACTS
● Decedent and testator: Florentino Hitosis, died 26 May 1939
● Florentino, a childless widower, had, as his only heir, his brother Leon
● In his will, he left his half-share to his wife, Tecla; and if she predeceased him (as she did),
the share would be assigned to the spouses Pedro Gallanosa and Corazon Grecia, because
Pedro, Florentino’s stepson, had grown up under his care.
● He also left his separate properties, consisiting of three parcels of abaca land and one parcel
of Riceland, to Adolfo Fortajada, a minor.
● 1939 Jun: A petition for probate of the will was filed in the CFI Sorsogon. The notice of
hearing was duly published.
● Leon and Florentino’s nephews and nieces opposed the probate. After a hearing, where the
oppositors did not present evidence, the will was admitted to probate in Oct 1939 and Gallanosa
was appointed executor. The judge found that the will was executed while the testator had “good
health and mental faculties and not acting under threat, fraud or undue influence.”
● 1941 Oct: The Gallanosa spouses and Fortajada submitted a project of partition, which was
approved by the court. The legal heirs did not appeal from the decree of probate or the order of
partition and distribution.
● 1952 Feb: Leon and Florentino’s siblings’ heirs sued Gallanosa for the recovery of the parcels
of land, alleging continuous possession in the concept of owners, and that Gallanosa entered
the lands in 1951 and asserted ownership thereon. This was dismissed in Aug 1952 on res
judicata—they had opposed the probate of the will distributing the properties but lost. From this
order of dismissal they did not appeal.
● BUT in Sep 1967, they sued again, in the same court, to have Florentino’s will annulled and
recover the properties. The basis of their complaint: the Gallanosa spouses caused the
execution and simulation of the purported Last Will through fraud and deceit. This time, they said
that the Gallanosas occupied the properties since Florentino’s death in 1939.
● The judge dismissed the action, but, on MR, reversed, citing Art. 1410 (the action or defense
for the declaration of the inexistence of a contract does not prescribe) applies to wills.
ISSUES & HOLDING
● Do the private respondents have a cause of action to “annul” Florentino’s will and recover the
properties? – NO.
RATIO Conclusiveness of probate decree
● What the plaintiffs seek is the “annulment” of a will duly probated in 1939 by that same court.
● It is clear the last action is barred by res judicata and by prescription. ● Our procedural laws do
not sanction an action for “annulment” of a will.
● The defense of res judicata against the 1967 complaint is two-pronged because there are two
bars by former judgment: the first, the decrees of probate and distribution in the special
proceeding, and the second, the dismissal of the 1952 action.
● The 1939 decree of probate is conclusive as to the due execution or formal validity of the will.
That means that: o The testator was of sound and disposing mind when he executed the will o
He was not acting under duress, menace, fraud, or undue influence o He signed the will in the
presence of the required number of witnesses o The Will is genuine
● These facts cannot be again questioned in a subsequent proceeding, not even in a criminal
action for forgery of the will.
● The decree of adjudication rendered in the testate proceedings, having been rendered in a
proceeding in rem, is binding upon the whole world.
● Meanwhile, the 1952 order of dismissal, a judgment in personam and an adjudication on the
merits, is binding upon private respondents. ● Art. 1410 cannot possibly apply to last wills and
testaments. DISPOSITIVE Disposition of the case
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
3. SOFIA J. NEPOMUCENO vs. CA, RUFINA GOMEZ, OSCAR JUGO ANG, CARMELITA
JUGO
FACTS
In 1974, Martin Jugo died and left a last Will and Testament. In said Will, the testator named
petitioner as 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 lawful wife and had been living with
petitioner as husband and wife. In fact testator and petitioner were married before a Justice of
the Peace. The testator devised to his forced heirs, his legal wife and children, his entire estate,
and the free portion thereof to petitioner.
Petitioner filed a petition for the probate of the will and asked for the issuance to her of letters
testamentary. Private respondents filed an opposition. Lower court denied the probate of the
Will. Petitioner appealed to respondent court, which set aside lower court’s decision.
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.
ISSUE
Whether or not respondent court acted in excess of its jurisdiction in passing upon the intrinsic
validity of the testamentary provision in favor of petitioner
RATIO DECIDENDI
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, however, is not 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, 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 proceedings to determine the intrinsic validity of
the testamentary provisions would be superfluous.
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.
There is no dispute over the extrinsic validity of the Will. Both parties agree it was executed with
all the formalities required by law and that the testator had the mental capacity to execute his
Will.
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, litigation will be
protracted; 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.
We see no useful purpose that would be served if we remand the nullified provision to the proper
court in a separate action for that purpose simply because, in the probate of a will, the court
does not ordinarily look into the intrinsic validity of its provisions.
Article 739 of the Civil Code provides:
The following donations shall be void:
(1) Those made between persons who were guilty of adultery or concubinage at the
time of the donation;
(2) Those made between persons found guilty of the same criminal offense, in
consideration thereof;
 (3) Those made to a public officer or his wife, descendants and ascendants, by reason
of his office.
Article 1028 of the Civil Code provides:
The prohibitions mentioned in Article 739, concerning donations inter vivos shall apply
to testamentary provisions.
Nepomuceno contends that she acted in good faith for 22 years in the belief that she was legally
married to the testator.
The records do not sustain a finding of innocence or good faith. As argued by the private
respondents: 1) will expressly admits on its face the relationship between testator and petitioner,
the devisee; and 2) 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.
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.
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.
Moreover, the prohibition in Article 739 of the Civil Code is against the making of a donation
between persons who are living in adultery or concubinage. It is the donation which becomes
void. The giver cannot give even assuming that the recipient may receive. The very wordings of
the Will invalidate the legacy because the testator admitted he was disposing the properties to a
person with whom he had been living in concubinage.
WHEREFORE, the petition is DISMISSED for lack of merit. The decision of the CA is
AFFIRMED.
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. L-62952 October 9, 1985
SOFIA J. NEPOMUCENO, petitioner,
vs.
THE HONORABLE COURT OF APPEALS, RUFINA GOMEZ, OSCAR JUGO ANG,
CARMELITA JUGO, respondents.
GUTIERREZ, JR., J.:
This is a petition for certiorari to set aside that portion of the decision of the respondent Court of
Appeals (now intermediate Appellate Court) dated June 3, 1982, as amended by the resolution
dated August 10, 1982, declaring as null and void the devise in favor of the petitioner and the
resolution dated December 28, 1982 denying petitioner's motion for reconsideration.
Martin Jugo died on July 16, 1974 in Malabon, Rizal. He left a last Will and Testament duly
signed by him at the end of the Will on page three and on the left margin of pages 1, 2 and 4
thereof in the presence of Celestina Alejandro, Myrna C. Cortez, and Leandro Leano, who in
turn, affixed their signatures below the attestation clause and on the left margin of pages 1, 2
and 4 of the Will in the presence of the testator and of each other and the Notary Public. The Will
was acknowledged before the Notary Public Romeo Escareal by the testator and his three
attesting witnesses.
In the said Will, the testator named and appointed herein petitioner Sofia J. Nepomuceno as his
sole and only executor of his estate. It is clearly stated in the Will that the testator was legally
married to a certain Rufina Gomez by whom he had two legitimate children, Oscar and
Carmelita, but since 1952, he had been estranged from his lawfully wedded wife and had been
living with petitioner as husband and wife. In fact, on December 5, 1952, the testator Martin Jugo
and the petitioner herein, Sofia J. Nepomuceno were married in Victoria, Tarlac before the
Justice of the Peace. The testator devised to his forced heirs, namely, his legal wife Rufina
Gomez and his children Oscar and Carmelita his entire estate and the free portion thereof to
herein petitioner. The Will reads in part:
Art. III. That I have the following legal heirs, namely: my aforementioned
legal wife, Rufina Gomez, and our son, Oscar, and daughter Carmelita, both
surnamed Jugo, whom I declare and admit to be legally and properly
entitled to inherit from me; that while I have been estranged from my above-
named wife for so many years, I cannot deny that I was legally married to
her or that we have been separated up to the present for reasons and
justifications known fully well by them:
Art. IV. That since 1952, 1 have been living, as man and wife with one Sofia
J. Nepomuceno, whom I declare and avow to be entitled to my love and
affection, for all the things which she has done for me, now and in the past;
that while Sofia J. Nepomuceno has with my full knowledge and consent,
did comport and represent myself as her own husband, in truth and in fact,
as well as in the eyes of the law, I could not bind her to me in the holy bonds
of matrimony because of my aforementioned previous marriage;
On August 21, 1974, the petitioner filed a petition for the probate of the last Will and Testament
of the deceased Martin Jugo in the Court of First Instance of Rizal, Branch XXXIV, Caloocan
City and asked for the issuance to her of letters testamentary.
On May 13, 1975, the legal wife of the testator, Rufina Gomez and her children filed an
opposition alleging inter alia that the execution of the Will was procured by undue and improper
influence on the part of the petitioner; that at the time of the execution of the Will, the testator
was already very sick and that petitioner having admitted her living in concubinage with the
testator, she is wanting in integrity and thus, letters testamentary should not be issued to her.
On January 6, 1976, the lower court denied the probate of the Will on the ground that as the
testator admitted in his Will to cohabiting with the petitioner from December 1952 until his death
on July 16, 1974, the Will's admission to probate will be an Idle exercise because on the face of
the Will, the invalidity of its intrinsic provisions is evident.
The petitioner appealed to the respondent-appellate court.
On June 2, 1982, the respondent court set aside the decision of the Court of First Instance of
Rizal denying the probate of the will. The respondent court declared the Will to be valid except
that the devise in favor of the petitioner is null and void pursuant to Article 739 in relation with
Article 1028 of the Civil Code of the Philippines. The dispositive portion of the decision reads:
WHEREFORE, the decision a quo is hereby set aside, the will in question
declared valid except the devise in favor of the appellant which is declared
null and void. The properties so devised are instead passed on in intestacy
to the appellant in equal shares, without pronouncement as to cost.
On June 15, 1982, oppositors Rufina Gomez and her children filed a "Motion for Correction of
Clerical Error" praying that the word "appellant" in the last sentence of the dispositive portion of
the decision be changed to "appellees" so as to read: "The properties so devised are instead
passed on intestacy to the appellees in equal shares, without pronouncement as to costs." The
motion was granted by the respondent court on August 10, 1982.
On August 23, 1982, the petitioner filed a motion for reconsideration. This was denied by the
respondent court in a resolution dated December 28, 1982.
The main issue raised by the petitioner is whether or not the respondent court acted in excess of
its jurisdiction when after declaring the last Will and Testament of the deceased Martin Jugo
validly drawn, it went on to pass upon the intrinsic validity of the testamentary provision in favor
of herein petitioner.
The petitioner submits that the validity of the testamentary provision in her favor cannot be
passed upon and decided in the probate proceedings but in some other proceedings because
the only purpose of the probate of a Will is to establish conclusively as against everyone that a
Will was executed with the formalities required by law and that the testator has the mental
capacity to execute the same. The petitioner further contends that even if the provisions of
paragraph 1 of Article 739 of the Civil Code of the Philippines were applicable, the declaration of
its nullity could only be made by the proper court in a separate action brought by the legal wife
for the specific purpose of obtaining a declaration of the nullity of the testamentary provision in
the Will in favor of the person with whom the testator was allegedly guilty of adultery or
concubinage.
The respondents on the other hand contend that the fact that the last Will and Testament itself
expressly admits indubitably on its face the meretricious relationship between the testator and
the petitioner and the fact that petitioner herself initiated the presentation of evidence on her
alleged ignorance of the true civil status of the testator, which led private respondents to present
contrary evidence, merits the application of the doctrine enunciated in Nuguid v. Felix Nuguid, et
al. (17 SCRA 449) and Felix Balanay, Jr. v. Hon. Antonio Martinez, et al. (G.R. No. L- 39247,
June 27, 1975). Respondents also submit that the admission of the testator of the illicit
relationship between him and the petitioner put in issue the legality of the devise. We agree with
the respondents.
The respondent court acted within its jurisdiction when after declaring the Will to be validly
drawn, it went on to pass upon the intrinsic validity of the Will and declared the devise in favor of
the petitioner null and void.
The general rule is that in probate proceedings, the court's area of inquiry is limited to an
examination and resolution of the extrinsic validity of the Will. The rule is expressed thus:
xxx xxx xxx
... It is elementary that a probate decree finally and definitively settles all
questions concerning capacity of the testator and the proper execution and
witnessing of his last Will and testament, irrespective of whether its
provisions are valid and enforceable or otherwise. (Fernandez v.
Dimagiba, 21 SCRA 428)
The petition below being for the probate of a Will, the court's area of inquiry
is limited to the extrinsic validity thereof. The testators testamentary capacity
and the compliance with the formal requisites or solemnities prescribed by
law are the only questions presented for the resolution of the court. Any
inquiry into the intrinsic validity or efficacy of the provisions of the will or the
legality of any devise or legacy is premature.
xxx xxx xxx
True or not, the alleged sale is no ground for the dismissal of the petition for
probate. Probate is one thing; the validity of the testamentary provisions is
another. The first decides the execution of the document and the
testamentary capacity of the testator; the second relates to descent and
distribution (Sumilang v. Ramagosa, 21 SCRA 1369)
xxx xxx xxx
To establish conclusively as against everyone, and once for all, the facts
that a will was executed with the formalities required by law and that the
testator was in a condition to make a will, is the only purpose of the
proceedings under the new code for the probate of a will. (Sec. 625). The
judgment in such proceedings determines and can determine nothing more.
In them the court has no power to pass upon the validity of any provisions
made in the will. It can not decide, for example, that a certain legacy is void
and another one valid. ... (Castaneda v. Alemany, 3 Phil. 426)
The rule, however, is not inflexible and absolute. Given exceptional circumstances, the probate
court is not powerless to do what the situation constrains it to do and pass upon certain
provisions of the Will.
In Nuguid v. Nuguid (17 SCRA 449) cited by the trial court, the testator instituted the petitioner
as universal heir and completely preterited her surviving forced heirs. A will of this nature, no
matter how valid it may appear extrinsically, would be null and void. Separate or latter
proceedings to determine the intrinsic validity of the testamentary provisions would be
superfluous.
Even before establishing the formal validity of the will, the Court in Balanay .Jr. v. Martinez (64
SCRA 452) passed upon the validity of its intrinsic provisions.
Invoking "practical considerations", we stated:
 The basic issue is whether the probate court erred in passing upon the
intrinsic validity of the will, before ruling on its allowance or formal validity,
and in declaring it void.
We are of the opinion that in view of certain unusual provisions of the will,
which are of dubious legality, and because of the motion to withdraw the
petition for probate (which the lower court assumed to have been filed with
the petitioner's authorization) the trial court acted correctly in passing upon
the will's intrinsic validity even before its formal validity had been
established. The probate of a will might become an Idle ceremony if on its
face it appears to be intrinsically void. Where practical considerations
demand that the intrinsic validity of the will be passed upon, even before it is
probated, the court should meet the issue (Nuguid v. Nuguid, 64 O.G. 1527,
17 SCRA 449. Compare with Sumilang vs. Ramagosa L-23135, December
26, 1967, 21 SCRA 1369; Cacho v. Udan L-19996, April 30, 1965, 13 SCRA
693).
There appears to be no more dispute at this time over the extrinsic validity of the Will. Both
parties are agreed that the Will of Martin Jugo was executed with all the formalities required by
law and that the testator had the mental capacity to execute his Will. The petitioner states that
she completely agrees with the respondent court when in resolving the question of whether or
not the probate court correctly denied the probate of Martin Jugo's last Will and Testament, it
ruled:
This being so, the will is declared validly drawn. (Page 4, Decision, Annex A
of Petition.)
On the other hand the respondents pray for the affirmance of the Court of Appeals' decision in
toto.
The only issue, therefore, is the jurisdiction of the respondent court to declare the testamentary
provision in favor of the petitioner as null and void.
We sustain the respondent court's jurisdiction. As stated in Nuguid v. Nuguid, (supra):
We pause to reflect. If the case were to be remanded for probate of the will,
nothing will be gained. On the contrary, this litigation will be protracted. And
for aught that appears in the record, in the record, in the event of probate or
if the court rejects the will, probability exists that the case will come up once
again before us on the same issue of the intrinsic validity or nullity of the
will. Result, waste of time, effort, expense, plus added anxiety. These are
the practical considerations that induce us to a belief that we might as well
meet head-on the issue of the validity of the provisions of the will in
question. (Section 2, Rule 1, Rules of Court. Case, et al. v. Jugo, et al., 77
Phil. 517, 522). After all, there exists a justiciable controversy crying for
solution.
We see no useful purpose that would be served if we remand the nullified provision to the proper
court in a separate action for that purpose simply because, in the probate of a will, the court
does not ordinarily look into the intrinsic validity of its provisions.
Article 739 of the Civil Code provides:
The following donations shall be void:
(1) Those made between persons who were guilty of adultery or
concubinage at the time of the donation;
(2) Those made between persons found guilty of the same criminal offense,
in consideration thereof;
(3) Those made to a public officer or his wife, descendants and ascendants,
by reason of his office.
In the case referred to in No. 1, the action for declaration of nullity may be
brought by the spouse of the donor or donee; and the guilt of the donor and
donee may be proved by preponderance of evidence in the same action.
Article 1028 of the Civil Code provides:
The prohibitions mentioned in Article 739, concerning donations inter
vivos shall apply to testamentary provisions.
In Article III of the disputed Will, executed on August 15, 1968, or almost six years before the
testator's death on July 16, 1974, Martin Jugo stated that respondent Rufina Gomez was his
legal wife from whom he had been estranged "for so many years." He also declared that
respondents Carmelita Jugo and Oscar Jugo were his legitimate children. In Article IV, he stated
that he had been living as man and wife with the petitioner since 1952. Testator Jugo declared
that the petitioner was entitled to his love and affection. He stated that Nepomuceno represented
Jugo as her own husband but "in truth and in fact, as well as in the eyes of the law, I could not
bind her to me in the holy bonds of matrimony because of my aforementioned previous
marriage.
There is no question from the records about the fact of a prior existing marriage when Martin
Jugo executed his Will. There is also no dispute that the petitioner and Mr. Jugo lived together in
an ostensible marital relationship for 22 years until his death.
It is also a fact that on December 2, 1952, Martin Jugo and Sofia J. Nepomuceno contracted a
marriage before the Justice of the Peace of Victoria, Tarlac. The man was then 51 years old
while the woman was 48. Nepomuceno now contends that she acted in good faith for 22 years in
the belief that she was legally married to the testator.
The records do not sustain a finding of innocence or good faith. As argued by the private
respondents:
First. The last will and testament itself expressly admits indubitably on its
face the meretricious relationship between the testator and petitioner, the
devisee.
Second. Petitioner herself initiated the presentation of evidence on her
alleged ignorance of the true civil status of the testator, which led private
respondents to present contrary evidence.
In short, the parties themselves dueled on the intrinsic validity of the legacy
given in the will to petitioner by the deceased testator at the start of the
proceedings.
Whether or not petitioner knew that testator Martin Jugo, the man he had
lived with as man and wife, as already married, was an important and
specific issue brought by the parties before the trial court, and passed upon
by the Court of Appeals.
Instead of limiting herself to proving the extrinsic validity of the will, it was
petitioner who opted to present evidence on her alleged good faith in
marrying the testator. (Testimony of Petitioner, TSN of August 1, 1982, pp.
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 new that the man she had openly lived
for 22 years as man and wife was a married man with already two children.
FOURTH: Having admitted that she knew the children of respondent Rufina
Gomez, is it possible that she would not have asked Martin Jugo whether or
not they were his illegitimate or legitimate children and by whom? That is
un-Filipino.
FIFTH: Having often gone to Pasig to the residence of the parents of the
deceased testator, is it possible that she would not have known that the
mother of private respondent Oscar Jugo and Carmelita Jugo was
respondent Rufina Gomez, considering that the houses of the parents of
Martin Jugo (where he had lived for many years) and that of respondent
Rufina Gomez were just a few meters away?
Such pretentions of petitioner Sofia Nepomuceno are unbelievable. They
are, to say the least, inherently improbable, for they are against the
experience in common life and the ordinary instincts and promptings of
human nature that a woman would not bother at all to ask the man she was
going to marry whether or not he was already married to another, knowing
that her groom had children. It would be a story that would strain human
credulity to the limit if petitioner did not know that Martin Jugo was already a
married man in view of the irrefutable fact that it was precisely his marriage
to respondent Rufina Gomez that led petitioner to break off with the
deceased during their younger years.
Moreover, the prohibition in Article 739 of the Civil Code is against the making of a donation
between persons who are living in adultery or concubinage. It is the donation which becomes
void. The giver cannot give even assuming that the recipient may receive. The very wordings of
the Will invalidate the legacy because the testator admitted he was disposing the properties to a
person with whom he had been living in concubinage.
WHEREFORE, the petition is DISMISSED for lack of merit. The decision of the Court of
Appeals, now Intermediate Appellate Court, is AFFIRMED. No costs.
SO ORDERED.
Teehankee (Chairman), Melencio-Herrera, Plana, Relova, De la Fuente and Patajo, JJ., concur.
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Article 850
Austria v. Reyes
31 SCRA 754
FACTS:
Basilia Austria vda. de Cruz filed with the CFI of Rizal a petition for probate, ante mortem, of her
last will and testament. The probate was opposed by the present petitioners, who are nephews
and nieces of Basilia. The will was subsequently allowed with the bulk of her estate designated
for respondents, all of whom were Basilia’s legally adopted children. The petitioners, claiming to
be the nearest of kin of Basilia, assert that the respondents had not in fact been adopted by the
decedent in accordance with law, thereby making them mere strangers to the decedent and
without any right to succeed as heirs. Petitioners argue that this circumstance should have left
the whole estate of Basilia open to intestacy with petitioners being the compulsory heirs.
It is alleged by petitioners that the language used imply that Basilia was deceived into believing
that she was legally bound to bequeath one-half of her entire estate to the respondents as the
latter’s legitime, with the inference that respondents would not have instituted the respondents
as heirs had the fact of spurious adoption been known to her. The petitioners inferred that from
the use of the terms, “sapilitang tagapagmana” (compulsory heirs) and “sapilitang mana”
(legitime), the impelling reason or cause for the institution of the respondents was the testatrix’s
belief that under the law she could not do otherwise. Thus Article 850 of the Civil Code applies
whereby, “the statement of a false cause for the institution of an heir shall be considered as not
written, unless it appears from the will that the testator would not have made such institution if he
had known the falsity of such cause.”
ISSUE:
W/N the lower court committed grave abuse of discretion in barring the petitioners nephews and
niece from registering their claim even to properties adjudicated by the decedent in her will.
HELD:
No. Before the institution of heirs may be annulled under article 850 of the Civil Code, the
following requisites must concur: First, the cause for the institution of heirs must be stated in the
will; second, the cause must be shown to be false; and third, it must appear from the face of the
will that the testator would not have made such institution if he had known the falsity of the
cause. The decedent’s will does not state in a specific or unequivocal manner the cause for such
institution of heirs. Absent such we look at other considerations. The decedent’s disposition of
the free portion of her estate, which largely favored the respondents, compared with the
relatively small devise of land which the decedent left for her blood relatives, shows a
perceptible inclination on her part to give the respondents more than what she thought the law
enjoined her to give to them. Excluding the respondents from the inheritance, considering that
petitioner nephews and nieces would succeed to the bulk of the testate by virtue of intestacy,
would subvert the clear wishes of the decedent.
Testacy is favored and doubts are resolved on its side, especially where the will evinces an
intention on the part of the testator to dispose of practically his whole estate, as was done in this
case. Intestacy should be avoided and the wishes of the testator should be allowed to prevail.
Granted that a probate court has found, by final judgment, that the decedent possessed
testamentary capacity and her last will was executed free from falsification, fraud, trickery or
undue influence, it follows that giving full expression to her will must be in order.
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854
You are here: Home ∼ 2013 ∼ July ∼ Case Digest: Reyes v. Barretto-Datu (19 SCRA 85)
CASE DIGEST: REYES V. BARRETTO-DATU (19 SCRA 85)
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Reyes v. Barretto-Datu
19 SCRA 85
FACTS:
Bibiano Barretto was married to Maria Gerardo. When Bibiano Barretto died he left his share in a
will to Salud Barretto and Lucia Milagros Barretto and a small portion as legacies to his two
sisters Rosa Barretto and Felisa Barretto and his nephew and nieces. The usufruct of
a fishpond was reserved for his widow, Maria Gerardo. Maria Gerardo, as administratrix
prepared a project of partition. It was approved and the estate was distributed and the shares
delivered.
Later on, Maria Gerardo died. Upon her death, it was discovered that she executed two wills, in
the first, she instituted Salud and Milagros, both surnamed Barretto, as her heirs; and, in the
second, she revoked the same and left all her properties in favor of Milagros Barretto alone. The
later will was allowed and the first rejected. In rejecting the first will presented by Tirso Reyes,
as guardian of the children of Salud Barretto, the LC held that Salud was not the daughter of the
decedent Maria Gerardo by her husband Bibiano Barretto. This ruling was appealed to the SC,
which affirmed the same.
Having thus lost this fight for a share in the estate of Maria Gerardo, as a legitimate heir of
Maria Gerardo, plaintiff now falls back upon the remnant of the estate of the deceased Bibiano
Barretto, which was given in usufruct to his widow Maria Gerardo. Hence, this action for the
recovery of one-half portion, thereof.
This action afforded the defendant an opportunity to set up her right of ownership, not only of
the fishpond under litigation, but of all the other properties willed and delivered to Salud Barretto,
for being a spurious heir, and not entitled to any share in the estate of Bibiano Barretto, thereby
directly attacking the validity, not only of the project of partition, but of the decision of the court
based thereon as well.
ISSUE:
W/N the partition from which Salud acquired the fishpond is void ab initio and Salud did not
acquire valid title to it.
HELD:
NO. Salud Barretto admittedly had been instituted heir in the late Bibiano Barretto’s last will and
testament together with defendant Milagros; hence, the partition had between them could not be
one such had with a party who was believed to be an heir without really being one, and was not
null and void. The legal precept (Article 1081) does not speak of children, or descendants, but
of heirs (without distinction between forced, voluntary or intestate ones), and the fact that Salud
happened not to be a daughter of the testator does not preclude her being one of
the heirs expressly named in his testament; for Bibiano Barretto was at liberty to assign the free
portion of his estate to whomsoever he chose. While the share (½) assigned to Salud impinged
on the legitime of Milagros, Salud did not for that reason cease to be a testamentary heir of
Bibiano Barretto.
Nor does the fact that Milagros was allotted in her father’s will a share smaller than her legitime
invalidate the institution of Salud as heir, since there was here no preterition, or total ommission
of a forced heir.
October 27, 1987

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Aznar v. Duncan G.R. No. L-24365 June 30, 1966 FACTS:

Facts: Edward E. Christensen, a citizen of California with domicile in the Philippines, died
leaving a w executed on March 5, 1951. (In 1954) The will was admitted to probate by the CFI
and it also declared th Maria Helen Christensen Garcia was a natural child of the deceased. The Constantino filed a petition for the probate of the will of the late Nemesio. The will
decision was appealed to the S and was affirmed. (In 1963) In another incident relative to the
partition of the deceased’s estate, the RTC approve the project submitted by the executor in provided that all his shares from properties he earned with his wife shall be given to his brother
accordance with the provisions of the will, which said court found t be valid under the law of Segundo (father of Constantino). In case Segundo dies, all such property shall be given to
California. Helen Garcia appealed from the order of approval and the SC reverse the ruling on
the ground that the validity of the provisions of the will should be governed by Philippine law SC Segundo’s children. Segundo pre-deceased Nemesio.
returned the case to the lower court with instructions that the partition be made as provided by
said law (In 1964) CFI issued an order approving the project of partition submitted by the
executor where the properties of the estate were divided equally between Maria Lucy Duncan,
whom the testator ha expressly recognized in his will as his natural daughter and Helen Garcia,
who had been judicially declare as such after his death. Lucy Duncan appealed with the sole The oppositors Virginia, a legally adopted daughter of the deceased, and the latter's
question of whether the estate, after deducting the legacie should pertain to her and to Helen widow Rosa filed a motion to dismiss on the following grounds:
Garcia in equal shares or whether the inheritance of Lucy Duncan a instituted heir should merely
reduced to the extent necessary to cover the legitime of Helen Garci equivalent to ¼ of the entire
estate. RTC ruled and appellee now maintains that there has been preterition of Helen Garcia,
compulsory heir in the direct line, resulting in the annulment of the institution of heir pursuant to
Article 85 of the CC. Appellant contends that Helen Garcia is entitled only to her legitime, and (1) the petitioner has no legal capacity to institute these proceedings;
not to a share of th estate equal that of Lucy Duncan as if the succession were instestate. In the
will of the deceased, Helen Garcia was given a legacy of P3,600.00.

Issue: Whether or not there was preterition. (2) he is merely a universal heir and

Ruling: No, there was no preterition. The solution (from three SC Spain decisions cited by
Manresa) wa that the heir ask that the legitime be completed and not that the institution of heirs
be annulled entirely. This solution is more in consonance with the expressed wishes of the (3) the widow and the adopted daughter have been preterited.
testator in the present case as may b gathered very clearly from the provisions of his will. He
refused to acknowledge Helen Garcia as his natur daughter, and limited her share to a legacy of
P3,600.00. The fact that she was subsequently declare judicially to possess such status is no
reason to assume that had the judicial declaration come during h lifetime his subjective attitude
towards here would have undergone any change and that he would have willed his estate ISSUE:
equally to her and to Lucy Duncan, who alone was expressly recognized by him. The testator did
not entirely omit Helen Garcia but left her a legacy of P3,600.00. Therefore, ¼ of the estate of
the deceased which consisted of 399 shares of stocks and a certain amount of cash descended
to Helen Garcia as her legitime. Since she became the owner of her share as of the moment of
Was there preterition?
the death of the decedent, she entitled to a corresponding portion of all the fruits or increments
thereof subsequently accruing. Therefore, there is no preterition if the heir is given a legacy or
devise.

XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX HELD:

ACAIN vs. IAC

Preterition consists in the omission in the testator's will of the forced heirs or anyone of
them either because they are not mentioned therein, or, though mentioned, they are neither
ACAIN vs. IAC
 Nuguid v. Nuguid
instituted as heirs nor are expressly disinherited. Insofar as the widow is concerned, Article
GR L-23445, June 23, 1966
854 may not apply as she does not ascend or descend from the testator, although she is a
compulsory heir. Even if the surviving spouse is a compulsory heir, there is no preterition FACTS:
even if she is omitted from the inheritance, for she is not in the direct line.
Rosario died single, without descendants, legitimate or illegitimate. Surviving were her legitimate
parents, Felix and Paz, and 6 brothers and sisters. One of the siblings filed a holographic will
allegedly executed by Rosario 11 years before her death and prayed that she be admitted to the
probate and be appointed administrator. The parents opposed saying that they are the
The same thing cannot be said of the other respondent Virginia, whose legal adoption by compulsory heirs of the decedent in the direct ascending line and that the will should be void on
the testator has not been questioned by petitioner. Adoption gives to the adopted person the the ground of absolute preterition.
same rights and duties as if he were a legitimate child of the adopter and makes the
ISSUE:
adopted person a legal heir of the adopter. It cannot be denied that she was totally omitted
and preterited in the will of the testator and that both adopted child and the widow were deprived Is the will void on the ground of preterition?
of at least their legitime. Neither can it be denied that they were not expressly disinherited. This
is a clear case of preterition of the legally adopted child. RULING:

Preterition annuls the institution of an heir and annulment throws open to intestate
succession the entire inheritance. The only provisions which do not result in intestacy are the
legacies and devises made in the will for they should stand valid and respected, except insofar
YES. The decedent left no descendants, legitimate or illegitimate. But she left forced heirs in the
direct ascending line her parents. And, the will completely omits both of them; thus receiving
nothing by the testament, depriving them of their legitime; neither were they expressly
disinherited. This is a clear case of preterition. Note that A. 854 of the NCC merely nullifies the
“institution of heir”. Considering that the will presented solely provides for the institution of the
petitioner as universal heir and nothing more, the result is the same. The will is null and void.

as the legitimes are concerned.

The universal institution of petitioner together with his brothers and sisters to the entire
inheritance of the testator results in totally abrogating the will because the nullification of such
institution of universal heirs - without any other testamentary disposition in the will - amounts to a
declaration that nothing at all was written.

In order that a person may be allowed to intervene in a probate proceeding he must have
an interest in the estate, or in the will, or in the property to be affected by it. Petitioner is not the
appointed executor, neither a devisee or a legatee there being no mention in the testamentary
disposition of any gift of an individual item of personal or real property he is called upon to
receive. At the outset, he appears to have an interest in the will as an heir. However, intestacy
having resulted from the preterition of respondent adopted child and the universal institution of
heirs, petitioner is in effect not an heir of the testator. He has no legal standing to petition for the
probate of the will left by the deceased.

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