13

ANTONIO CASTAÑEDA v. JOSE ALEMANY

G.R. No. 1439, EN BANC, March 19, 1904, WILLARD, J.
“There is nothing in the language of section 618 of the Code of Civil Procedure
which supports the claim of the appellants that the will must be written by the
testator himself or by someone else in his presence and under his express
direction. That section requires (1) that the will be in writing and (2) either
that the testator sign it himself or, if he does sign it, that it be signed by
someone in his presence and by his express direction. Who does the mechanical work
of writing the will is a matter of indifference. The fact, therefore, that in this
case the will was typewritten in the office of the lawyer for the testatrix is of
no consequence. The English text of section 618 is very plain. The mistakes in
translation found in the first Spanish edition of the code have been corrected in
the second. It was therefore executed in conformity with law.”

FACTS:

Appellant constested the validity of the will of Doña Juana Moreno upon the ground that
although the attestation clause in the will states that the testator signed the will in the
presence of three witnesses who also each signed in each presence, the will was not
actually written by the testator, but rather was typewritten in the office of the lawyer for
the testratrix

The evidence in this case shows to our satisfaction that the will of Doña Juana
Moreno was duly signed by herself in the presence of three witnesses, who signed it
as witnesses in the presence of the testatrix and of each other. The will was
typewritten in the office of the lawyer for the testatrix.

ISSUE:
Whether the will was executed in conformity with law?

RULING:

YES. There is nothing in the language of section 618 of the Code of Civil Procedure
which supports the claim of the appellants that the will must be written by the
testator himself or by someone else in his presence and under his express direction.
That section requires (1) that the will be in writing and (2) either that the
testator sign it himself or, if he does sign it, that it be signed by someone in his
presence and by his express direction. Who does the mechanical work of writing the
will is a matter of indifference. The fact, therefore, that in this case the will
was typewritten in the office of the lawyer for the testatrix is of no consequence.
The English text of section 618 is very plain. The mistakes in translation found in
the first Spanish edition of the code have been corrected in the second. It was
therefore executed in conformity with law.

The fact 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 cannot
decide, for example, that a certain legacy is void and another one valid. It could
not in this case make any decision upon the question whether the testatrix had the
power to appoint by will a guardian for the property of her children by her first
husband, or whether the person so appointed was or was not a suitable person to
discharge such trust. All such questions must be decided in some other proceeding.
The grounds on which a will may be disallowed are stated the section 634. Unless one
of those grounds appears the will must be allowed. They all have to do with the
personal condition of the testator at the time of its execution and the formalities
connected therewith. It follows that neither this court nor the court below has any
jurisdiction in his proceedings to pass upon the questions raised by the appellants
by the assignment of error relating to the appointment of a guardian for the
children of the deceased.

It is claimed by the appellants that there was no testimony in the court below to
show that the will executed by the deceased was the same will presented to the court
and concerning which this hearing was had. It is true that the evidence does not
show that the document in court was presented to the witnesses and identified by
them, as should have been done. But we think that we are justified in saying that it
was assumed by all the parties during the trial in the court below that the will
about which the witnesses were testifying was the document then in court. No
suggestion of any kind was then made by the counsel for the appellants that it was
not the same instrument. In the last question put to the witness Gonzales the phrase
"this will" is used by the counsel for the appellants. In their argument in that
court, found on page 15 of the record, they treat the testimony of the witnesses as
referring to the will probate they were then opposing.

14

DACANAY VS. FLORENDO, GR NO. No. L-2071, September 19, 1950

FACTS:

Isabel V. Florendo and Tirso Dacanay executed a joint and reciprocal will on October
20, 1940. Isabel V. Florendo having died, her surviving spouse Tirso Dacanay is
seeking to probate said joint and reciprocal will, which provides in substance that
whoever of the spouses, joint testators, shall survive the other, shall inherit all
the properties of the latter, with an agreement as to how the surviving spouse shall
dispose of the properties in case of his or her demise.The relatives of the deceased
Isabel V. Florendo opposed the probate of said will on various statutory grounds.

Before hearing the evidence the trial court, after requiring and receiving from
counsel for both parties written arguments on the question of whether or not the
said joint and reciprocal will may be probated in view of article 669 of the Civil
Code, issued an order dismissing the petition for probate on the ground that said
will is null and void ab initio as having been executed in violation of article
669 of the Civil Code.

Tirso Dacanay appealed and argues that article 669 of the Civil Code has been
repealed by Act. No. 190, which he claims provides for and regulates the extrinsic
formalities of wills, contending that whether two wills should be executed
conjointly or separately is but a matter of extrinsic formality.

ISSUE:

Whether or not the joint and reciprocal will executed by the spouses Isabel V.
Florendo and Tirso Dacanay is null and void ab initio?

RULING:

*NO,*the*will*is*null*and*void*ab*ini,o.*Philippine*law* embodies* a* strong*

public* policy* against* a* joint* will* (an* instrument* which* is* made* the*
will* of* two* persons* jointly* signed*by*them).*
The matter has already been decided in IN RE Will of Victor Bilbao wherein the
spouses Victor Bilbao and Ramona M. Navarro executed a will conjointly, whereby they
directed that "all of our respective private properties both real and personal, and
all of our conjugal properties, and any other property belonging to either or both
of us, be given and transmitted to anyone or either of us, who may survive the
other, or who may remain the surviving spouse of the other." That will was denied
probate by the Court of First Instance of Negros Oriental on the ground that it was
prohibited by article 669 of the Civil Code. The surviving spouse as proponent of
the joint will also contended that said article of the Civil Code has been repealed
by sections 614 and 618 of the Code of Civil Procedure, Act No. 190.

The provision of article 669 of the Civil Code prohibiting the execution of a will
by two or more persons conjointly or in the same instrument either for their
reciprocal benefit or for the benefit of a third person, is not unwise and is not
against public policy. The reason for this provision, especially as regards husband
and wife, is that when a will is made jointly or in the same instrument, the spouse
who is more aggressive, stronger in will or character and dominant is liable to
dictate the terms of the will for his or her own benefit or for that of third
persons whom he or she desires to favor. And, where the will is not only joint but
reciprocal, either one of the spouses who may happen to be unscrupulous, wicked,
faithless or desperate, knowing as he or she does the terms of the will whereby the
whole property of the spouses both conjugal and paraphernal goes to the survivor,
may be tempted to kill or dispose of the other.

15

DELA CERNA VS. REBACA, GR No. L-20234, December 23, 1964

FACTS:

Spouses Bernabe de la Serna and Gervasia Rebaca, executed a joint last will ad
testament where they willed that their 2 parcels of land be given
to Manuela Rebaca, their niece and that while each of them are living, he/she will
continue to enjoy the fruits of the lands mentioned.

Bernabe died. Gervasia submitted the will for probated. 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.
When the same was heard, the CFI declared the will void for being executed contrary
to the prohibition on joint wills. On appeal, the order was reversed.

ISSUE:

Whether a joint will may be denied subsequent probate after it was admitted in prior probate
proceedings.
HELD:

NO. 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, as in the present case, the joint last will and testament has been admitted to probate by final
order of a Court of competent jurisdiction, so that there seems to be no alternative except to give
effect to the provisions thereof that are not contrary to law.

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. However, this is only with respect to the estate of the husband but
cannot affect the estate of the wife; considering that a joint will is a separate
will of each testator.

The joint will being prohibited by law, its validity, in so far as the estate of the
wife is concerned, must be reexamine and adjudicated de novo.

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.

A decree of probate decree is conclusive on the due execution and the formal
validity of the will subject to such probate.

16

REYES VS. CA, G.R. No. 124099, October 30, 1997

FACTS:

Petitioners Manuel G. Reyes, Mila G. Reyes, Danilo G. Reyes, Lyn Agape, Marites
Agape,
EstebanaGalolo and Celsa Agape, the oppositors in Special Proceedings No. 112 for
the probate of the will of Torcuato J. Reyes.

On January 3, 1992, Torcuato J. Reyes executed his last will and testament declaring
“xxx

II. I give and bequeath to my wife Asuncion “Oning” R. Reyes the following
properties to wit:

a. All my shares of our personal properties consisting among others of jewelries,

coins, antiques, statues, tablewares, furnitures, fixtures and the building;

b. All my shares consisting of one half (1/2) or 50% of all the real estates I own
in common with my brother Jose, situated in Municipalities of Mambajao, Mahinog,
Guinsiliban, Sagay all in Camiguin; real estates in Lunao, Ginoong, Caamulan,
Sugbongcogon, Boloc-Boloc, Kinoguinatan, Balingoan, Sta. Ines, Caesta, Talisayan,
all in the province of Misamis Oriental.”.

The will of Reyes was admitted to probate except for paragraph II (a) and (b) of the
will which was declared null and void for being contrary to law and morals. Hence,
Julio Vivares filed an appeal before the Court of Appeals with the allegation that
the oppositors failed to present any competent evidence that Asuncion Reyes was
legally married to another person during the period of her cohabitation with
Torcuato Reyes.

The Court of Appeals promulgated the assailed decision which affirmed the trial
court’s decision admitting the will for probate but the modification that paragraph
II including subparagraphs (a) and (b) were declared valid.

ISSUE:

Whether or not the court of appeals erred in declaring that the contested
testamentary disposition in the will is valid.

HELD:

No. The Court of Appeals did not err in declaring that the said testamentary
dispositions are valid. As a general rule, courts in probate proceedings are limited
to pass only upon the extrinsic validity of the will sought to be probated. Thus,
the court merely inquires on its due execution, whether or not it complies with the
formalities prescribed by law, and the testamentary capacity of the testator. It
does not determine nor even by implication prejudge the validity or efficacy of the
will’s provisions.The intrinsic validity is not considered since the consideration
thereof usually comes only after the will has been proved and allowed. There are,
however, notable circumstances wherein the intrinsic validity was first determined
as when the defect of the will is apparent on its face and the probate of the will
may become a useless ceremony if it is intrinsically invalid.The intrinsic validity
of a will may be passed upon because “practical considerations” demanded it as
when there is preterition of heirs or the testamentary provisions are doubtful
legality.Where the parties agree that the intrinsic validity be first determined,
the probate court may also do so. Parenthetically, the rule on probate is not
inflexible and absolute. Under 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.

The case at bar arose from the institution of the petition for the probate of the
will of the late Torcuato Reyes. Perforce, the only issues to be settled in the said
proceeding were: (1) whether or not the testator had animus testandi; (2) whether or
not vices of consent attended the execution of the will; and (3) whether or not the
formalities of the will had been complied with. Thus, the lower court was not asked
to rule upon the
intrinsic validity or efficacy of the provisions of the will. As a result, the
declaration of the testator that Asuncion “Oning” Reyes was his wife did not have
to be scrutinized during the probate proceedings. The propriety of the institution
of Oning Reyes as one of the devisees/legatees already involved inquiry on the
will’s intrinsic validity and which need not be inquired upon by the probate court.

In this case, there is a presumption of marriage wherein the testator himself

declared in his will that Asuncion is his wife. Moreover, in the elegant language of
Justice Moreland written decades ago, he said-“A will is the testator speaking
after death. Its provisions have substantially the same force and effect in the
probate court as if the testator stood before the court in full life making the
declarations by word of mouth as they appear in the will. That was the special
purpose of the law in the creation of the instrument known as the last will and
testament. Men wished to speak after they were dead and the law, by the creation of
that instrument, permitted them to do so. xxx All doubts must be resolved in favor
of the testator’s having meant just what he said.” (Santosvs. Manarang, 27 Phil.
209).

17

PALAGANAS VS. PALAGANAS, G.R. No. 169144, September 12, 2006

FACTS:

On November 8, 2001 Ruperta C. Palaganas (Ruperta), a Filipino who became a naturalized

United States (U.S.) citizen, died single and childless.  In the last will and testament she executed
in California, she designated her brother, Sergio C. Palaganas (Sergio), as the executor of her will for
she had left properties in the Philippines and in the U.S..

On May 19, 2003 respondent Ernesto C. Palaganas (Ernesto), another  brother of Ruperta, filed
with the Regional Trial Court (RTC) of Malolos, Bulacan, a petition for the probate of Ruperta’s will
and for his appointment as special administrator of her estate.

However, petitioners Manuel Miguel Palaganas (Manuel) and Benjamin Gregorio Palaganas
(Benjamin), nephews of Ruperta, opposed the petition on the ground that Ruperta’s will should not be
probated in the Philippines but in the U.S. where she executed it.  Manuel and Benjamin added that,
assuming Ruperta’s will could be probated in the Philippines, it is invalid nonetheless for having been
executed under duress and without the testator’s full understanding of the consequences of such
act.  Ernesto, they claimed, is also not qualified to act as administrator of the estate.

The RTC issued an order:(a) admitting to probate Ruperta’s last will; (b) appointing respondent
Ernesto as special administrator at the request of Sergio, the U.S.-based executor designated in the will;
and (c) issuing the Letters of Special Administration to Ernesto. 

    Aggrieved by the RTC’s order, petitioner nephews Manuel and Benjamin appealed to the
Court of Appeals (CA),arguing that an unprobated will executed by an American citizen in
the U.S. cannot be probated for the first time in the Philippines.

The Court of Appeals held that the RTC properly allowed the probate of the will, subject to
respondent Ernesto’s submission of the authenticated copies of the documents specified in the order and
his posting of required bond.  The CA pointed out that Section 2, Rule 76 of the Rules of Court does not
require prior probate and allowance of the will in the country of its execution, before it can be probated
in the Philippines.  The present case, said the CA, is different from reprobate, which refers to a will
already probated and allowed abroad.  Reprobate is governed by different rules or
procedures.  Unsatisfied with the decision, Manuel and Benjamin came to this Court.

ISSUE:

Whether or not a will executed by a foreigner abroad may be probated in

the Philippines although it has not been previously probated and allowed in the country
where it was executed.

HELD:

No.

Our laws do not prohibit the probate of wills executed by foreigners abroad although the same have
not as yet been probated and allowed in the countries of their execution.  A foreign will can be given
legal effects in our jurisdiction.  Article 816 of the Civil Code states that the will of an alien who is
abroad produces effect in the Philippines if made in accordance with the formalities prescribed by the
law of the place where he resides, or according to the formalities observed in his country.

In this connection, Section 1, Rule 73 of the 1997 Rules of Civil Procedure provides that if the
decedent is an inhabitant of a foreign country, the RTC of the province where he has an estate may take
cognizance of the settlement of such estate.  Sections 1 and 2 of Rule 76 further state that the executor,
devisee, or legatee named in the 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. 

          Our rules require merely that the petition for the allowance of a will must show, so far as known to the petitioner:
(a) the jurisdictional facts; (b) the names, ages, and residences of the heirs, legatees, and devisees of the testator or decedent;
(c) the probable value and character of the property of the estate; (d) the name of the person for whom letters are prayed; and
(e)  if the will has not been delivered to the court, the name of the person having custody of it.  Jurisdictional facts refer to
the fact of death of the decedent, his residence at the time of his death in the province where the probate court is sitting, or if
he is an inhabitant of a foreign country, the estate he left in such province. The rules do not require proof that the foreign will
has already been allowed and probated in the country of its execution.

18

ALSUA- BETTS VS. CA, GR Nos. L-46430-31, July 30, 1979

FACTS:

Don Jesus Alsua and his wife, Doña FlorentinaRella, both of Ligao, Albay, together with all their
living children, Francisca Alsua-Betts, Pablo Alsua, Fernando Alsua thru this judicial guardian Clotilde
Samson, and AmparoAlsua de Buenviaje, entered into a duly notarized agreement, Escritura de
Particion Extrajudicial over the then present and existing properties of the spouses Don Jesus and Doña
Florentina.

On January 5, 1955, Don Jesus and Doña Florentina, also known as Doña Tinay separately
executed their respective holographic willsthe provisions of which were in conformity and in
implementation of the extrajudicial partition of November 25, 1949. Their holographic wills similarly
provided for the institution of the other to his or her share in the conjugal properties, the other half of the
conjugal assets having been partitioned to constitute their legitime among their four living children in
the Extrajudicial Partition of 1949. The wigs also declared that in the event of future acquisitions of
other properties by either of them, one-half thereof would belong to the other spouse, and the other half
shall be divided equally among the four children.

As previously stated, Don Jesus Alsua executed a separate but similar holographic will on the
same day, Jan. 5, 1955 in exactly the same terms and conditions as the above will of his wife.

On May 21, 1956, the spouses Don Jesus and Doñ;aTinay filed before the Court of First Instance
of Albay their respective petitions for the probate of their respective holographic wills.

On August 14, 1956, the spouses Don Jesus and Doñ;aTinay executed their mutual and
reciprocal codicils amending and supplementing their respective holographic wins. Again, the codicils
similarly acknowledged and provided that one-half of all the properties of the spouses, conjugal and
paraphernal, had been disposed of, conveyed to and partitioned among their legitimate heirs in the
"Escritura de Particion" of November 25, 1949, but that they reserved for themselves (the spouses Don
Jesus and Doñ;aTinay) the other half or those not disposed of to the said legitimate heirs under the above
agreement of partition, and that they mutually and reciprocally bequeathed unto each other their
participation therein as well as in all properties which might be acquired subsequently. Each spouse also
declared that should she or he be the surviving spouse, whatever belongs to him or her or would pertain
to him or her, would be divided equally among the four children. It was also declared in both codicils
that upon the death of either of the spouses, the surviving spouse was designated mutually and
reciprocally as the executor or administrator of all the properties reserved for themselves.

On the same day, August 14, 1956, Don Jesus executed also a separate but similar codicil in
exactly the same terms and conditions as the above codicil of his wife. Also on the same day of August
14, 1956, the spouses Don Jesus and Doña Tinay both filed their respective supplemental petitions for
the probate of their respective codicils in the probate proceedings earlier filed. On February 19, 1957,
their respective holographic wills and the codicils thereto were duly admitted to probate.

Upon the death of Doña Tinay on October 2, 1959, Don Jesus was named executor to serve
without bond in an order issued by the probate court on October 13, 1959. Letters testamentary having
been issued in favor of Don Jesus, he took his oath of office and performed his duties as such until July
1, 1960.

Thereafter in the early part of November, 1959, Don Jesus cancelled his holographic will in the
presence of his bookkeeper and secretary, Esteban P. Ramirez, whom he instructed to make a list of all
his remaining properties with their corresponding descriptions. His lawyer, Atty. Gregorio imperial Sr.
was then instructed to draft a new will which was duly signed by Don Jesus and his attesting witnesses
on November 14, 1959 at Ms home in Ligao, Albay. This notarial will and testament of Don Jesus
executed on November 14, 1959 had three essential features: (a) it expressly cancelled, revoked and
annulled all the provisions of Don Jesus' holographic will of January 5, 1955 and his codicil of August
14, 1956; (b) it provided for the collation of all his properties donated to his four living children by
virtue of the "Escritura de Particion Extra. judicial" of 1949, and that such properties be taken into
account in the partition of his estate among the children; and (c) it instituted his children as
legatees/devisees of certain specific properties, and as to the rest of the properties and whatever may be
subsequently acquired in the future, before his death, were to be given to Francisca and Pablo, naming
Francesca as executrix to serve without a bond.

After all debts, funeral charges and other expenses of the estate of Doña Tinay had been paid, all
her heirs including Don Jesus, submitted to the probate court for approval a deed of partition executed
on December 19, 1959 and which essentially confirmed the provisions of the partition of 1949, the
holographic will and codicil of Doña Tinay. On July 6, 1960, the court approved the partition of 1959
and on January 6, 1961 declared the termination of the proceedings on the estate of Doña Tinay.

On May 6,1964, Don Jesus Alsua died.

On May 20, 1964, petitioner herein Francisca Alsua Betts, as the executrix named in the will of
November 14, 1959, filed a petition for the probate of said new will of Don Jesus Alsua.Oppositions
thereto were filed by Pablo, Amparo and Fernando, thru his judicial guardian Clotilde Samson, on the
following grounds: (a) that Don Jesus was not of sound and disposing mind at the time of the execution
of the alleged will; (b) that the will was executed under duress or influence of fear or threats; or it was
procured by undue and improper pressure and influence on the part of the main beneficiaries and of
person or persons in collusion with them, or the signature of the testator was secured by or thru fraud;
(c) that the will was not executed according to the formal requirements of the law; and (d) that the
alleged will subject of probate contravened the Extrajudicial Partition of 1949 agreed upon by him, his
deceased spouse, Doña Tinay, and all his children, Francisco, Pablo, Amparo and Fernando thru his
judicial guardian Clotilde Samson, and also contravened Don Jesus' own probated holographic will and
codicil of 1955 and 1956, respectively, essentially confirming and implementing the said partition of
1949 which had already been partially executed by all the signatories thereto in the partition of the estate
of DoñaTinay in December, 1959.

ISSUES:

1. Whether or not estoppel is applicable in probate proceedings.

2. Whether the respondent court erred in not allowing the probate of the last will and
testament of Don Jesus Alsua..

HELD:

1. No.

The principle of estoppel is not applicable in probate proceedings. probate proceedings involve
public interest, and the application therein of the rile of estoppel, when it win block the ascertainment of
the truth as to the circumstances surrounding the execution of a testament, would seem inimical to
public policy. Over and above the interest of private parties is that of the state to see that testamentary
dispositions be carried out if, and only if, executed conformably to law. The primary purpose of the
proceeding is not to establish the existence of the right of any living person, but to determine whether or
not the decedent has performed the acts specified by the pertinent statutes, which are the essential
prerequisites to personal direction of the mode of devolution of his property on death. There is no legal
but merely a moral duty resting upon a proponent to attempt to validate the wishes of the departed, and
he may and frequently does receive no personal benefit from the performance of the act. One of the most
fundamental conceptions of probate law, is that it is the duty of the court to effectuate, in so far as may
be compatible with the public interest, the devolutionary wishes of a deceased person.

2. YES.

The respondent court erred in denying probate to the will of Don Jesus dated November 14, 1959;
it erred in holding that Don Jesus being a party to the extrajudicial partition of 1949 was contractually
bound by the provisions thereof and hence could not revoke his participation therein by the simple
expedience of making a new will with contrary provisions or dispositions. It is an error because the so-
called extrajudicial partition of 1949 is void and inoperative as a partition; neither is it a valid or
enforceable contract because it involved future inheritance; it may only be given effect as a donation
inter vivos of specific properties to the heirs made by the parents.

Considering that the document, the extrajudicial partition of November 25, 1949, contained specific
designation of properties allotted to each child, We rule that there was substantial compliance with the
rules on donations inter vivos under the old Civil Code (Article 633). On the other hand, there could
have been no valid donation to the children of the other half reserved as the free portion of Don Jesus
and Doña Tinay which, as stated in the deed, was to be divided equally among the children for the
simple reason that the property or properties were not specifically described in the public instrument, an
essential requirement under Article 633 which provides as follows:
 Art. 633. In order that a donation or real property be valid it must be made by public instrument in
which the property donated must be specifically described and in the amount of the encumbrances to be
assumed by the donee expressed.

The acceptance must be made in the deed of gift or in a separate public writing; but it shall produce
no effect if not made during the lifetime of the donor.

If the acceptance is made by separate public instrument, authentic notice thereof shall be given the
donor, and this proceeding shall be noted in both instruments.

This other half, therefore, remained as the disposable free portion of the spouses which may be
disposed of in such manner that either of the spouses would like in regards to his or her share in such
portion, unencumbered by the provision enjoining the last surviving spouse to give equally to the
children what belongs or-would pertain to him or her. The end result, therefore, is that Don Jesus and
Doña Tinay, in the Deed of 1949, made to their children valid donations of only one-half of their
combined properties which must be charged against their legitime and cannot anymore be revoked
unless inofficious; the other half remained entirely at the free disposal of the spouses with regards to
their respective shares.

Upon the death of Doña Tinay on October 2, 1959, her share in the free portion was distributed in
accordance with her holographic will dated January 25, 1955 and her codicil dated August 14, 1956. It
must be stressed here that the distribution of her properties was subject to her holographic win and
codicil, independently of the holographic will and codicil of Don Jesus executed by him on the same
date. This is fundamental because otherwise, to consider both wills and codicils jointly would be to
circumvent the prohibition of the Civil Code on joint wills (Art. 818) and secondly because upon the
death of Doñ;aTinay, only her estate was being settled, and not that of Don Jesus.

We have carefully examined the provisions of the holographic will and codicil of Doña Tinay and We find no indication
whatsoever that Doña Tinay expressly or impliedly instituted both the husband and her children as heirs to her free portion of
her share in the conjugal assets. In her holographic will, mention of her children as heirs was made.