RULE 74
minor that time.
14 JOVITA YAP ANCOG, and GREGORIO YAP, JR., v COURT OF
APPEALS, ROSARIO DIEZ, and CARIDAD YAP
FACTS
1. Sps Gregorio Yan and Rosario Diez had a conjugal property
(land). Yap died, leaving his wife (respondent) and children
(petitioner).
2. Diez obtained loans from Bank of Calape secured by a mortgage
on the disputed land, annotated on OCT.
3. Diez applied again for loan, offering the land in question as
security. The bank’s lawyer suggested that she submit an
extrajudicial settlement covering the disputed land to facilitate
her application of loan.
4. Atty. De la Serna prepared an extrajudicial settlement; the heirs
signed except for petitioner Yap Jr (son, minor)
5. The document was Notarized; OCT was cancelled and TCT was
issued upon execution of REM on the land, so the bank approved
the loan.
6. Diez exercise rights of ownership over the land and brought
ejectment suit against petitioner’s husband and son for failure to
pay rent.
7. Diez then offered the land for sale
8. Petitioners filed an action for partition in RTC Bohol; they
alleged that the extrajudicial instrument was simulated thus void
claiming that when they signed it, they did not intent to convey
their interest in the property to mother, but enable her to obtain
loan on security.
9. TC ruled in favor of Diez saying that the extrajudicial document
cannot be simulated. Court found petitioner Ancog had waived
her right to the land and the action for partition had already
prescribed counting from the time that the registration was
transferred to mother, petitioner should have filed 10yrs
therefrom.
10. CA affirmed emphasizing that the extrajudicial settlement could
not have been simulated in order to obtain a loan and that
Gregorio’s Jr claim is barred by laches
ISSUE: WON Gregorio Jr is barred by laches?
HELD: No, he did not participate in signing the document since he was a
RATIO:
 In accordance with Rule 74, §1 of the Rules of Court, as he did
not take part in the partition, he is not bound by the
settlement.  It is uncontroverted that, at the time the
extrajudicial settlement was executed, Gregorio Yap, Jr. was a
minor. For this reason, he was not included or even informed of
the partition.
 Instead, the registration of the land in Rosario Diez's name
created an implied trust in his favor by analogy to Art. 1451 of
the Civil Code, which provides: When land passes by succession
to any person and he causes the legal title to be put in the name
of another, a trust is established by implication of law for the
benefit of the true owner.
 In this case, the records disclose that the intention of the parties
to the extrajudicial settlement was to establish a trust in favor of
petitioner Yap, Jr. to the extent of his share. Rosario Diez testified
that she did not claim the entire property, while Atty. de la Serna
added that the partition only involved the shares of the three
participants (excluding Gregorio Jr)
 A cestui que trust may make a claim under a resulting trust
within 10 years from the time the trust is repudiated. Although
the registration of the land in private respondent Diez's name
operated as a constructive notice of her claim of ownership, it
cannot be taken as an act of repudiation adverse to petitioner
Gregorio Yap, Jr.'s claim, whose share in the property was
precisely not included by the parties in the partition.
 Since the action brought by petitioner Yap to claim his share was
brought shortly after he was informed by Jovita Ancog of their
mother's effort to sell the property, Gregorio Yap, Jr.'s claim
cannot be considered barred either by prescription or by laches.
*** VALIDITY: Extrajudicial settlement is valid, case reveals is the
intention of Jovita Ancog and Caridad Yap to cede their interest in the
land to their mother Rosario Diez. The latter performed acts of dominion
over the entire land w/o objection from petitioners.
RULE 75
15 SPOUSES ALVARO PASTOR, JR. and MA. ELENA ACHAVAL DE
PASTOR vs. THE COURT OF APPEALS, JUAN Y. REYES, JUDGE OF
BRANCH I, COURT OF FIRST INSTANCE OF CEBU and LEWELLYN
BARLITO QUEMADA
G.R. No. L-56340; June 24, 1983
FACTS:
1. Alvaro Pastor, Sr. is a Spanish subject who died in Cebu City. He was
survived by his Spanish wife Sofia Bossio (died on October 21, 1966),
their 2 legitimate children Alvaro Pastor, Jr. and Sofia Pastor de
Midgely, and an illegitimate child, not natural, Lewellyn Barlito
Quemada (QUEMADA). PASTOR, JR. is a Philippine citizen, having
been naturalized in 1936. SOFIA is a Spanish subject. QUEMADA is a
Filipino by his mother's citizenship.
2. QUEMADA filed a petition for the probate and allowance of an
alleged holographic will of PASTOR, SR. with the CFI of Cebu, Branch
1 (PROBATE COURT). The will contained only 1 testamentary
disposition: a legacy in favor of QUEMADA consisting of 30% of
PASTOR, SR.'s 42% share in the operation by Atlas Consolidated
Mining and Development Corporation (ATLAS) of some mining
claims in Cebu.
3. the PROBATE COURT, upon motion of QUEMADA and after an ex
parte hearing, appointed him special administrator of the entire
estate of PASTOR, SR., whether or not covered or affected by the
holographic will.
4. Thereafter, QUEMADA as special administrator, instituted against
PASTOR, JR. and his wife an action for reconveyance of alleged
properties of the estate, which included the properties subject of the
legacy and which were in the names of the spouses PASTOR, JR. and
his wife, Maria Elena Achaval de Pastor, who claimed to be the
owners thereof in their own rights, and not by inheritance. The
action was filed with the CFI of Cebu, Branch IX.
5. PASTOR, JR. and his sister SOFIA filed their opposition to the petition
for probate and the order appointing QUEMADA as special
administrator.
6. the PROBATE COURT issued an order allowing the will to probate.
CA affirmed the order and on petition for review, the SC dismissed
the petition and remanded the same to the PROBATE COURT after
denying reconsideration.
7. For 2 years after remand of the case to the PROBATE COURT,
QUEMADA filed pleading after pleading asking for payment of his
legacy and seizure of the properties subject of said legacy. PASTOR,
JR. and SOFIA opposed these pleadings on the ground of pendency of
the reconveyance suit with another branch of the Cebu CFI. All
pleadings remained unacted upon by the PROBATE COURT.
8. March 5, 1980: the PROBATE COURT set the hearing on the intrinsic
validity of the will for March 25, 1980, but upon objection of
PASTOR, JR. and SOFIA on the ground of pendency of the
reconveyance suit, no hearing was held. Instead, the PROBATE
COURT required the parties to submit their respective position
papers as to how much inheritance QUEMADA was entitled to
receive under the will.
9. On August 20, 1980, while the reconveyance suit was still being
litigated in Branch IX of the CFI of Cebu, the PROBATE COURT issued
the now assailed Order of Execution and Garnishment, resolving the
question of ownership of the royalties payable by ATLAS and ruling
in effect that the legacy to QUEMADA was not inofficious. [There was
absolutely no statement or claim in the Order that the Probate Order
of December 5, 1972 had previously resolved the issue of ownership
of the mining rights of royalties thereon, nor the intrinsic validity of
the holographic will.]
10. The order found that as per the holographic will and a written
acknowledgment of PASTOR, JR., of the above 60% interest in the
mining claims belonging to the Pastor Group, 42% belonged to
PASTOR, SR. and only 33% belonged to PASTOR, JR. The remaining
25% belonged to E. Pelaez, also of the Pastor Group. The PROBATE
COURT thus directed ATLAS to remit directly to QUEMADA the 42%
royalties due decedent's estate, of which QUEMADA was authorized
to retain 75% for himself as legatee and to deposit 25% with a
reputable banking institution for payment of the estate taxes and
other obligations of the estate. The 33% share of PASTOR, JR. and/or
his assignees was ordered garnished to answer for the accumulated
legacy of QUEMADA from the time of PASTOR, SR.'s death, which
amounted to over 2 million pesos.
11. The order being "immediately executory", QUEMADA succeeded in
obtaining a Writ of Execution and Garnishment. The oppositors
sought reconsideration thereof primarily on the ground that the
PROBATE COURT gravely abused its discretion when it resolved the
question of ownership of the royalties and ordered the payment of
QUEMADA's legacy after prematurely passing upon the intrinsic
 validity of the will. In the meantime, the PROBATE COURT ordered
suspension of payment of all royalties due PASTOR, JR. and/or his
assignees until after resolution of oppositors' motion for
reconsideration.
12. pending MR, PASTOR, JR., w/ his wife, filed with the CA a Petition for
certiorari and Prohibition with a prayer for writ of preliminary
injunction. They assailed the Order and the writ of execution and
garnishment issued pursuant thereto. The petition was denied on
the grounds (1) that its filing was premature because the MR of the
questioned Order was still pending determination by the PROBATE
COURT; and (2) that although "the rule that a motion for
reconsideration is prerequisite for an action for certiorari is never an
absolute rule," the Order assailed is "legally valid. "
13. Hence, this Petition for Review by certiorari with prayer for a writ of
preliminary injunction
ISSUE: whether the Probate Order resolved with finality the questions of
ownership and intrinsic validity.
declared that the intestate estate administration aspect must
proceed " subject to the outcome of the suit for reconveyance of
ownership and possession of real and personal properties in
Civil case before Branch IX of the CFI of Cebu."
 The Probate Order did not resolve the question of ownership of
the properties listed in the estate inventory was appropriate,
considering that the issue of ownership was the very subject of
controversy in the reconveyance suit that was still pending in
Branch IX of the CFI of Cebu. What, therefore, the CA and, in
effect, the SC affirmed en toto when they reviewed the Probable
Order were only the matters properly adjudged in the said
Order.
 It was, therefore, error for the assailed implementing Orders to
conclude that the Probate Order adjudged with finality the
question of ownership of the mining properties and royalties,
and that, premised on this conclusion, the dispositive portion of
the said Probate Order directed the special administrator to pay
the legacy in dispute.

HELD:
 In a special proceeding for the probate of a will, the issue by and
large is restricted to the extrinsic validity of the will, i.e., whether
the testator, being of sound mind, freely executed the will in
accordance with the formalities prescribed by law. (Rules of
Court, Rule 75, Section 1; Rule 76, Section 9.) As a rule, the
question of ownership is an extraneous matter which the
Probate Court cannot resolve with finality. Thus, for the purpose
of determining whether a certain property should or should not
be included in the inventory of estate properties, the Probate
Court may pass upon the title thereto, but such determination is
provisional, not conclusive, and is subject to the final decision in
a separate action to resolve title.
 Probate Order enumerated the issues before the Probate Court.
However, nowhere in the dispositive portion is there a
declaration of ownership of specific properties. On the contrary,
it is manifest therein that ownership was not resolved. For it
confined itself to the question of extrinsic validity of the will, and
the need for and propriety of appointing a special administrator.
Thus, it allowed and approved the holographic will "with respect
to its extrinsic validity, the same having been duly authenticated
pursuant to the requisites or solemnities prescribed by law." It
16 ALVARADO v. GAVIOLA
1. On 5 November 1977, 79-year old Brigido Alvarado executed a
notarial will entitled “Huling Habilin” wherein he disinherited an
illegitimate son, petitioner Cesar Alvarado, and expressly revoked a
previously executed holographic will at the time awaiting probate
before the RTC of Laguna.
2. According to Bayani Rino, private respondent, he was present when
the said notarial will was executed, together with three instrumental
witnesses and the notary public, where the testator did not read the
will himself, suffering as he did from glaucoma.
3. Rino, a lawyer, drafted the eight-page document and read the same
aloud before the testator, the three instrumental witnesses and the
notary public, as they were following the reading with their own
respective copies previously furnished them.
4. Thereafter, a codicil entitled “Kasulatan ng Pagbabago ng Ilang
Pagpapasiya na Nasasaad sa Huling Habilin na May Petsa Nobiembre
5, 1977 ni Brigido Alvarado” was executed changing
some dispositions in the notarial will to generate cash for the
testator’s eye operation.
5. Said codicil was likewise not read by Brigido Alvarado and was read
in the same manner as with the previously executed will.
6. When the notarial will was submitted to the court for probate, Cesar
Alvarado filed his opposition as he said that the will was not
executed and attested as required by law; that the testator was
insane or mentally incapacitated due to senility and old age; that the
will was executed under duress, or influence of fear or threats; that it
was procured by undue pressure and influence on the part of the
beneficiary; and that the signature of the testator was procured by
fraud or trick.
ISSUE: WON notarial will of Alvarado should be admitted to probate
despite allegations of defects in the execution and attestation thereof as
testator was allegedly blind at the time of execution and the double-
reading requirement under Art. 808 of the NCC was not complied with?
HELD: YES.
RATIO:
1. The spirit behind the law was served though the letter was not.
2. Although there should be strict compliance with the substantial
requirements of law in order to insure the authenticity of the will,
the formal imperfections should be brushed aside when they do not
affect its purpose and which, when taken into account, may only
defeat the testator’s will.
3. Cesar Alvardo was correct in asserting that his father was not totally
blind (of counting fingers at 3 feet) when the will and codicil were
executed, but he can be so considered for purposes of Art. 808. That
Art. 808 was not followed strictly is beyond cavil.
4. However, in the case at bar, there was substantial compliance where
the purpose of the law has been satisfied: that of making the
provisions known to the testator who is blind or incapable of reading
the will himself (as when he is illiterate) and enabling him to object
if they do not accord with his wishes.
5. Rino read the testator’s will and codicil aloud in the presence of the
testator, his three instrumental witnesses, and the notary public.
6. Prior and subsequent thereto, the testator affirmed, upon being
asked, that the contents read corresponded with his instructions.
Only then did the signing and acknowledgment take place.
7. There is no evidence that the contents of the will and the codicil
were not sufficiently made known and communicated to the testator.
8. With four persons, mostly known to the testator, following the
reading word for word with their own copies, it can be safely
concluded that the testator was reasonably assured that what was
read to him were the terms actually appearing on the typewritten
documents.
9. The rationale behind the requirement of reading the will to the
testator if he is blind or incapable of reading the will to himself (as
when he is illiterate), is to make the provisions thereof known to
him, so that he may be able to object if they are not in accordance
with his wishes.
10. Although there should be strict compliance with the substantial
requirements of law in order to insure the authenticity of the will,
the formal imperfections should be brushed aside when they do not
affect its purpose and which, when taken into account, may only
defeat the testator’s will.
17 Sofia Nepomuceno v. Court of Appeals and Rufina Gomez
G.R. No. L-62952, [October 9, 1985], 223 PHIL 418-429)
Facts: Martin Jugo left a duly executed and notarized Last Will and
Testament before he died. Sofia Nepomuceno (Sofia) was named as sole
executor. It was stated in the Will that Martin was legally married to a
certain Rufina Gomez (Rufina) by whom he had two legitimate children
(respondents), but Martin had been estranged from Rufina. In fact,
Martin and Sofia were married despite the subsisting first marriage.
Martin devised the free portion of his estate to Sofia. Then, Sofia filed a
petition for probate before the Court of First Instance of Rizal. On May
13, 1975, Rufina and her children filed an opposition alleging undue and
improper influence on the part of Sofia; that at the time of the execution
of the Will, Martin was already very sick and Sofia admitted her living in
concubinage with Martin.
The lower court denied the probate of the Will on the ground that 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.
Because of this, Sofia appealed to CA. The CA set aside the decision of the
lower court. The CA declared the Will is valid except that the devise in
favor of Sofia is null and void pursuant to Article 739 in relation with
Article 1028 of the Civil Code of the Philippines. The CA also ruled that
the properties so devised
are instead passed on intestacy to Rufina and her children in equal
shares.
Unsatisfied, Sofia elevated the case to SC. She argued that CA acted with
excess of jurisdiction when it admitted the will for probate. She alleged
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.
ISSUE: W/N the CA acted in excess of its jurisdiction when after
declaring the last Will and Testament of the deceased Martin validly
drawn, it went on to pass upon the intrinsic validity of the testamentary
provision.
RULING: No. CA 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 Sofia 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 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.
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. The Nuguid case stated that:
"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.”
The Will is void under Article 739. The following donations shall be void:
(1) Those made between persons who were guilty of adultery or
concubinage at the time of the donation; and Article 1028. The
prohibitions mentioned in Article 739, concerning donations inter vivos
shall apply to testamentary provisions.
There is no question from the records about the fact of a prior existing
marriage when Martin executed his Will. 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.
The will was validly drawn. CA’s ruling is affirmed. Rufina won.
18 Spouses Roberto & Thelma Ajero v. CA & Clemente Sand
1. The holographic will of Annie Sand was submitted for probate.
Private respondent opposed the petition on the grounds that:
neither the testament’s body nor the signature therein was in
decedent’s handwriting; it contained alterations and corrections
which were not duly signed by decedent; and, the will was procured
by petitioners through improper pressure and undue influence.
2. The petition was also contested by Dr. Ajero with respect to the
disposition in the will of a house and lot in Agusan Del Norte. He
claimed that said property could not be conveyed by decedent in
its entirety, as she was not its sole owner.
3. However, the trial court still admitted the
decedent’s holographic will to probate. The trial court held that since
it must decide only the question of the identity of the will, its due
execution and the testamentary capacity of the testatrix, it finds no
reason for the disallowance of the will for its failure to comply with
the formalities prescribed by law nor for lack of testamentary
capacity of the testatrix.
4. On appeal, the CA reversed the trial court’s decision holding that the
decedent did not comply with Articles 813 and 814 of the NCC. It
found that certain dispositions in the will were either unsigned or
undated, or signed by not dated. It also found that the erasures,
alterations and cancellations made had not been authenticated by
decedent. Moreover, Annie Sand could not validly dispose of the
house and lot in Agusan Del Norte, in its entirety.
ISSUE: Whether or not the instrinsic validity of the will may be passed
upon even before probate in this case— YES
1. As a general rule, courts in probate proceedings are limited to pass
only upon the extrinsic validity of the will sought to be probated.
However, in exceptional instances, courts are not powerless to do
what the situation constrains them to do, and pass upon certain
provisions of the will. In the case at bench, decedent herself
indubitably stated in her holographic will that the Cabadbaran
property is in the name of her late father, John H. Sand (which led
oppositor Dr. Jose Ajero to question her conveyance of the same in
its entirety). Thus, as correctly held by respondent court, she cannot
validly dispose of the whole property, which she shares with her
father's other heirs.
2. A reading of Article 813 shows that its requirement affects the
validity of the dispositions contained in the holographic will, but not
its probate. If the testator fails to sign and date some of
the dispositions, the result is that these dispositions cannot be
effectuated. Such failure, however, does not render the whole
testament void. Likewise, a holographic will can still be admitted to
probate notwithstanding non-compliance with the provisions of
Article 814.
Unless the authenticated alterations, cancellations or insertions
were made on the date of the holographic will or on testator’s
signature, their presence does not invalidate the will itself. The
lack of authentication will only result in disallowance of such
changes. It is also proper to note that he requirements of
authentication of changes and signing and dating
of dispositions appear in provisions (Article 813 and 814)
separate from that which provides for the necessary conditions
for the validity of the holographic will (Article 810). This
separation and distinction adds support to the interpretation
that only the requirements of Article 810 of the NCC – and not
those found in Articles 813 and 814 – are essential to the probate
of a holographic will.
Section 9, Rule 76 of the Rules of Court and Article 839 of the Civil Code
enumerate the grounds for disallowance of wills. These lists are
exclusive; no other grounds can serve to disallow a will. In a petition to
admit a holographic will, the only issues to be resolved are:
a. Whether the instrument submitted is, indeed, the decedent’s last
will and testament;
b. Whether said will was executed in accordance with
the formalities prescribed by law.
c. Whether the decedent had the necessary testamentary capacity
at the time the will was executed; and
d. Whether the execution of the will and its signing were the
voluntary acts of the decedent.
The object of the solemnities surrounding the execution of wills is to
close the door against bad faith and fraud; accordingly, laws on this
subject should be interpreted to attain these primordial ends. In the case
of holographic wills, what assures authenticity is the requirement that
they be totally authographic or handwritten by the testator himself.
Failure to strictly observe other formalities will no result in the
disallowance of a holographic will that is unquestionable handwritten by
the testator.
Petition granted. RULE 76

19 CONSTANTINO C. ACAIN vs. HON. IAC (Third Special Cases

Division), VIRGINIA A. FERNANDEZ and ROSA DIONGSON; Rule 76
Who may oppose

FACTS:
1. A will was allegedly executed by Nemesio Acain on February 17,
1960 in Bisaya. It provided that all his shares in the properties he
earned with his wife shall be given to his brother Segundo. If
Segundo predeceases Nemesio, the properties shall be given to
Segundo’s children.
2. Segundo pre-deceased Nemesio. Thus, petitioner Constantino
Acain, one of Segundo’s children filed a petition for the probate
of the will in the RTC Cebu.
3. Respondents Virginia A. Fernandez, a legally adopted daughter
of the deceased, Nemesio, and the latter's widow Rosa Diongson
Vda. de Acain filed a motion to dismiss on the following grounds:
(1) petitioner has no legal capacity to institute these
proceedings; (2) he is merely a universal heir and (3) the widow
and the adopted daughter have been preterited, but the motion
was denied.
4. A MR was filed in the lower court, as well as a petition for
certiorari and prohibition with preliminary injunction with the
SC which was subsequently referred to the IAC.
5. Respondent IAC granted private respondents' petition and
ordered the trial court to dismiss the petition for the probate of
the will of Nemesio Acain. Hence, petitioner Constantino filed
this present petition for the review of respondent IAC’s decision.
6. He argues that the will of Nemesio Acain is valid and must
therefore, be admitted to probate. The preterition mentioned in
Article 854 of the New Civil Code refers to preterition of
"compulsory heirs in the direct line," and does not apply to
private respondents who are not compulsory heirs in the direct
line; their omission shall not annul the institution of heirs;
Moreover, as an instituted heir, petitioner has the legal interest
and standing to file the petition for probate of the will.

ISSUE: Whether or not the petitioner has legal interest and standing to
file the petition for probate of the will— NO, there being preterition, the
will becomes invalid. Intestacy shall prevail, and petitioner Constantino
ceases to be an instituted heir.
RATIO:
1. Article 854 of the Civil Code; 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 instituted as heirs nor are expressly disinherited. Insofar
as the widow is concerned, Article 854 of the Civil Code may not
apply as she does not ascend or descend from the testator, although
she is a compulsory heir. Stated otherwise, even if the surviving
spouse is a compulsory heir, there is no preterition even if she is
omitted from the inheritance, for she is not in the direct line.
However, the same thing cannot be said of the other respondent
Virginia A. Fernandez, whose legal adoption by the testator has not
been questioned by petitioner. Under Article 39 of P.D. No. 603,
known as the Child and Youth Welfare Code, adoption gives to the
adopted person the same rights and duties as if he were a legitimate
child of the adopter and makes the adopted person a legal heir of the
adopter. It cannot be denied that she has totally omitted and
preterited in the will of the testator and that both adopted child and
the widow were deprived of at least their legitime. Neither can it be
denied that they were not expressly disinherited. Hence, this is a
clear case of preterition of the legally adopted child.
Pretention 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 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. No
legacies nor devises having been provided in the will the whole
property of the deceased has been left by universal title to petitioner
and his brothers and sisters. The effect of annulling the "Institution
of heirs will be, necessarily, the opening of a total intestacy except
that proper legacies and devises must, as already stated above, be
respected.
2. 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 either as executor or as a
claimant of the estate and an interested party is one who would be
benefited by the estate such as an heir or one who has a claim
against the estate like a creditor. 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 (Article 782, Civil Code). At the
outset, he appears to have an interest in the will as an heir, defined
under Article 782 of the Civil Code as a person called to the succession
either by the provision of a will or by operation of law. 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 and the special
proceeding must be dismissed.
Notes: The general rule is that the probate court's authority is limited
only to the extrinsic validity of the will, the due execution thereof, the
testator's testamentary capacity and the compliance with the requisites
or solemnities prescribed by law. However, 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.
This is to avoid 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. After all there exists a justiciable controversy crying for
solution.
For private respondents to have tolerated the probate of the will and
allowed the case to progress when on its face the will appears to be
intrinsically void as petitioner and his brothers and sisters were
instituted as universal heirs coupled with the obvious fact that one of the
private respondents had been preterited would have been an exercise in
futility.
PREMISES CONSIDERED, the petition is hereby DENIED for lack of merit
Separate Opinions
MELENCIO-HERRERA, J., concurring:
The requisites of preterition are: (1) The heir omitted is a forced heir (in
the direct line); (2) The ommission is by mistake or thru an oversight.; (3)
The omission is complete so that the forced heir received nothing in the
will.
If the omission is intentional, the effect would be a defective
disinheritance covered by Article 918 of the Civil Code in which case the
institution of heir is not wholly void but only insofar as it prejudices the
legitime of the person disinherited.
20 PEDRO DE GUZMAN v. ANGELES
G.R. No. 78590 June 20, 1988
FACTS:
On May 5, 1987, private respondent Elaine G. de Guzman filed a
petition for the settlement of the intestate estate of Manolito de
Guzman, before the Regional Trial Court of Makati, Metro Manila.
On May 22, 1987, the private respondent filed a motion for writ of
possession over five (5) — vehicles registered under the name of
Manolito de Guzman, alleged to be conjugal properties of the de
Guzman's but which are at present in the possession of the private
respondent's father-in- law, herein petitioner Pedro de Guzman. The
motion stated that as co-owner and heir, the private respondent must
have the possession of said vehicles in order to preserve the assets of
her late husband. On the same day, the lower court issued an order
setting for hearing the motion on May 27, 1987 directing the deputy
sheriff to notify petitioner Pedro de Guzman at the expense of the
private respondent.
On May 28, 1987, the private respondent filed her "Ex-Parte Motion to
Appoint Petitioner as Special Administratrix of the Estate of Manolito de
Guzman” which was granted by the lower court. Also in another order,
the lower court acted on the motion for assistance which authorized
Deputy Sheriffs Honorio Santos and Jose B. Flora together with some
military men and/or policemen to assist private respondent in
preserving the subject estate.
Trouble ensued when the respondents tried to enforce the later order.
The petitioner resisted when Deputy Sheriffs Jose B. Flora and Honorio
Santos tried to take the subject vehicles on the ground that they were his
personal properties.
The petitioner contends that such order is a patent nullity, the
respondent court not having acquired jurisdiction to appoint a special
administratrix because the petition for the settlement of the estate of
Manolito de Guzman was not yet set for hearing and published for three
consecutive weeks, as mandated by the Rules of Court. The petitioner
also stresses that the appointment of a special administratrix constitutes
an abuse of discretion for having been made without giving petitioner
and other parties an opportunity to oppose said appointment.

ISSUE:
Whether or not a probate court may appoint a special administratrix and
issue a writ of possession of alleged properties of a decedent for the
preservation of the estate in a petition for the settlement of the intestate
estate of the said deceased person even before the probate court causes
notice to be served upon all interested parties?
HELD: NO
In the instant case, there is no doubt that the respondent court
acquired jurisdiction over the proceedings upon the filing of a
petition for the settlement of an intestate estate by the private
respondent since the petition had alleged all the jurisdictional
facts, the residence of the deceased person, the possible heirs and
creditors and the probable value of the estate of the deceased
Manolito de Guzman pursuant to Section 2, Rule 79 of the Revised
Rules of Court.
Section 3, Rule 79 of the Revised Rules of Court provides:
Court to set time for hearing. — Notice thereof. — When a
petition for letters of administration is filed in the court having
jurisdiction, such court shall fix a time and place for hearing the
petition, and shall cause notice thereof to be given to the known
heirs and creditors of the decedent, and to any other persons
believed to have an interest in the estate, in the manner provided
in sections 3 and 4 of Rule 76.
It is very clear from this provision that the probate court must cause
notice through publication of the petition after it receives the same. The
purpose of this notice is to bring all the interested persons within the
court's jurisdiction so that the judgment therein becomes binding on all
the world. (Manalo v. Paredes, 47 Phil. 938; Moran, Comment on the
Rules of Court Volume 3,1980 Edition) Where no notice as required by
Section 3, Rule 79 of the Rules of Court has been given to persons believed
to have an interest in the estate of the deceased person; the proceeding for
the settlement of the estate is void and should be annulled. The
requirement as to notice is essential to the validity of the proceeding in
that no person may be deprived of his right to property without due
process of law. 
Verily, notice through publication of the petition for the settlement of the
estate of a deceased person is jurisdictional, the absence of which makes
court orders affecting other persons, subsequent to the petition void and
subject to annulment. (See Eusebio v. Valmores, supra)
In the instant case, no notice as mandated by section 3, Rule 79 of the
Revised Rules of Court was caused to be given by the probate court
before it acted on the motions of the private respondent to be appointed
as special administratrix, to issue a writ of possession of alleged
properties of the deceased person in the widow's favor, and to grant her
motion for assistance to preserve the estate of Manolito de Guzman.
The petitioner as creditor of the estate has a similar interest in the
preservation of the estate as the private respondent who happens to be
the widow of deceased Manolito de Guzman. Hence, the necessity of
notice as mandated by the Rules of Court. It is not clear from the records
exactly what emergency would have ensued if the appointment of an
administrator was deferred at least until the most interested parties
were given notice of the proposed action. No unavoidable delay in the
appointment of a regular administrator is apparent from the records.
If emergency situations threatening the dissipation of the assets of an
estate justify a court's immediately taking some kind of temporary
action even without the required notice, no such emergency is shown
in this case. The need for the proper notice even for the appointment of
a special administrator is apparent from the circumstances of this case.
The respondent Judge himself explains that the order for the
preservation of the estate was limited to properties not claimed by
third parties. If certain properties are already in the possession of
the applicant for special administratrix and are not claimed by
other persons, we see no need to hurry up and take special action
to preserve those properties. As it is, the sheriffs took advantage of
the questioned order to seize by force, properties found in the
residence of the petitioner which he vehemently claims are owned
by him and not by the estate of the deceased person.