DOCTRINE: The evidence necessary for the reprobate or allowance of

wills which have been probated outside of the Philippines are as follows:
(1) the due execution of the will in accordance with the foreign laws; (2) the
testator has his domicile in the foreign country and not in the Philippines;
(3) the will has been admitted to probate in such country; (4) the fact that
the foreign tribunal is a probate court, and (5) the laws of a foreign country
on procedure and allowance of wills.

What the law expressly prohibits is the making of joint wills either for the
testators’ reciprocal benefit or for the benefit of a third person (Civil Code of
the Philippines, Article 818). In the case at bench, the Cunanan spouses
executed separate wills. Since the two wills contain essentially the same
provisions and pertain to property which in all probability are conjugal in
nature, practical considerations dictate their joint probate.

SALUD TEODORO VDA.. DE PEREZ, Petitioner, -versus –HON.

ZOTICO A. TOLETE in his capacity as Presiding Judge, Branch 18,
RTC Bulacan, Respondent.
G.R. No. 76714;June 2, 1994

FACTS OF THE CASE:

Dr. Jose F. Cunanan and his wife, Dr. Evelyn Perez-Cunanan, who
became American citizens and residents of New York each executed, a
will. Both will contain same provisions, that in the event of death, to
bequeath to the spouse surviving "all the remainder" of their real and
personal property at the time of his or her death "whosesoever situated".

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In 1982, Dr. Cunanan and his entire family perished when they were
trapped by fire that gutted their home. Thereafter, Dr. Rafael Cunanan, Jr.
as trustee and substitute executor of the two wills, filed separate
proceedings for the probate thereof. The two wills were admitted to probate
and letters testamentary were issued in his favor.

Later, Salud Teodoro Perez, the mother of Dr. Evelyn P. Cunanan, filed a
petition for the reprobate of the two wills ancillary to the probate
proceedings in New York. The trial court directed the issuance of letters of
special administration in favor of Salud.

The Cunanan heirs filed a motion to nullify the proceedings and to set aside
the appointment of, or to disqualify, petitioner as special administratrix of
the estates of Dr. Jose F. Cunanan and Dr. Evelyn Perez-Cunanan.
Thereafter, the Cunanan heirs filed a motion requiring petitioner to submit
an inventory or accounting of all monies received by her in trust for the
estate.

In her opposition, petitioner asserted that she was the "sole and only heir"
of her daughter, Dr. Evelyn Perez-Cunanan to the exclusion of the
"Cunanan collaterals" hence they were complete strangers to the
proceedings and were not entitled to notice.

In 1984, the trial court issued an order, disallowing the reprobate of the two
wills, recalling the appointment of petitioner as special administratrix,
requiring the submission of petitioner of an inventory of the property
received by her as special administratrix and declaring all pending incidents
moot and academic. Judge de la Llana reasoned out that petitioner failed to

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prove the law of New York on procedure and allowance of wills and the
court had no way of telling whether the wills were executed in accordance
with the law of New York. In the absence of such evidence, the
presumption is that the law of succession of the foreign country is the same
as the law of the Philippines. However, he noted, that there were only two
witnesses to the wills of the Cunanan spouses and the Philippine law
requires three witnesses and that the wills were not signed on each and
every page, a requirement of the Philippine law.

ISSUE

Whether the reprobate of the wills should be allowed. (YES)

RULING OF THE SUPREME COURT:

"Art. 816. The will of an alien who is abroad produces effect in the
Philippines if made with the formalities prescribed by the law of the place in
which he resides, or according to the formalities observed in his country, or
in conformity with those which this Code prescribes."

Thus, proof that both wills conform with the formalities prescribed by New
York laws or by Philippine laws is imperative.

The evidence necessary for the reprobate or allowance of wills which have
been probated outside of the Philippines are as follows: (1) the due
execution of the will in accordance with the foreign laws; (2) the testator
has his domicile in the foreign country and not in the Philippines; (3) the will
has been admitted to probate in such country; (4) the fact that the foreign
tribunal is a probate court, and (5) the laws of a foreign country on

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procedure and allowance of wills (III Moran Commentaries on the Rules of
Court, 1970 ed., pp. 419-429; Suntay v. Suntay, 95 Phil. 500 [1954];
Fluemer v. Hix, 54 Phil. 610 [1930]. Except for the first and last
requirements, the petitioner submitted all the needed evidence.

The necessity of presenting evidence on the foreign laws upon which the
probate in the foreign country is based is impelled by the fact that our
courts cannot take judicial notice of them (Philippine Commercial and
Industrial Bank v. Escolin, 56 SCRA 266 [1974]).

Petitioner must have perceived this omission as in fact she moved for more
time to submit the pertinent procedural and substantive New York laws but
which request respondent Judge just glossed over. While the probate of a
will is a special proceeding wherein courts should relax the rules on
evidence, the goal is to receive the best evidence of which the matter is
susceptible before a purported will is probated or denied probate (Vda. de
Ramos v. Court of Appeals, 81 SCRA 393 [1978]).

There is merit in petitioner’s insistence that the separate wills of the

Cunanan spouses should be probated jointly. Respondent Judge’s view
that the Rules on allowance of wills is couched in singular terms and
therefore should be interpreted to mean that there should be separate
probate proceedings for the wills of the Cunanan spouses is too literal and
simplistic an approach. Such view overlooks the provisions of Section 2,
Rule 1 of the Revised Rules of Court, which advise that the rules shall be
"liberally construed in order to promote their object and to assist the parties
in obtaining just, speedy, and inexpensive determination of every action
and proceeding."

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A literal application of the Rules should be avoided if they would only result
in the delay in the administration of justice (Acain v. Intermediate Appellate
Court, 155 SCRA 100 [1987]; Roberts v. Leonidas, 129 SCRA 33 [1984]).

What the law expressly prohibits is the making of joint wills either for the
testators’ reciprocal benefit or for the benefit of a third person (Civil Code of
the Philippines, Article 818). In the case at bench, the Cunanan spouses
executed separate wills. Since the two wills contain essentially the same
provisions and pertain to property which in all probability are conjugal in
nature, practical considerations dictate their joint probate. As this Court has
held a number of times, it will always strive to settle the entire controversy
in a single proceeding leaving no root or branch to bear the seeds of future
litigation (Motoomull v. Dela Paz, 187 SCRA 743 [1990]).

This petition cannot be completely resolved without touching on a very

glaring fact — petitioner has always considered herself the sole heir of Dr.
Evelyn Perez Cunanan and because she does not consider herself an heir
of Dr. Jose F. Cunanan, she noticeably failed to notify his heirs of the filing
of the proceedings. Thus, even in the instant petition, she only impleaded
respondent Judge, forgetting that a judge whose order is being assailed is
merely a nominal or formal party. The rule that the court having jurisdiction
over the reprobate of a will shall "cause notice thereof to be given as in
case of an original will presented for allowance" (Revised Rules of Court,
Rule 27, Section 2) means that with regard to notices, the will probated
abroad should be treated as if it were an "original will" or a will that is
presented for probate for the first time. Accordingly, compliance with
Sections 3 and 4 of Rule 76, which require publication and notice by mail or
personally to the "known heirs, legatees, and devisees of the testator
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resident in the Philippines" and to the executor, if he is not the petitioner,
are required.

The brothers and sisters of Dr. Jose F. Cunanan, contrary to petitioner’s

claim are entitled to notices of the time and place for proving the wills.
Under Section 4 of Rule 76 of the Revised Rules of Court, the "court shall
also cause copies of the notice of the time and place fixed for proving the
will to be addressed to the designated or other known heirs, legatees, and
devisees of the testator, . . ."

DISPOSITIVE:

WHEREFORE, the questioned Order is SET ASIDE. Respondent Judge

shall allow petitioner reasonable time within which to submit evidence
needed for the joint probate of the wills of the Cunanan spouses and see to
it that the brothers and sisters of Dr. Jose F. Cunanan are given all notices
and copies of all pleadings pertinent to the probate proceedings.

SO ORDERED

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DOCTRINE: A will is essentially ambulatory. At any time prior to the
testator's death, it may be changed or revoked and until admitted to
probate, it has no effect whatever and no right can be claimed thereunder,
the law being quite explicit: "No will shall pass either real or personal
property unless it is proved and allowed in accordance with the Rules of
Court". An owner's intention to confer title in the future to persons
possessing property by his tolerance is not inconsistent with the former's
taking back of possession in the meantime for any reason deemed
sufficient. In the case at bar, there was sufficient cause for the owner's
resumption of possession. She needed to generate income from the house
on account of the physical infirmities afflicting her, arising from her extreme
age.

THE INCOMPETENT, CARMEN CAÑIZA, REPRESENTED BY HER

LEGAL GUARDIAN, AMPARO EVANGELISTA, Petitioner, -versus -
COURT OF APPEALS (SPECIAL FIRST DIVISION), PEDRO ESTRADA
and HIS WIFE, LEONORA ESTRADA, Respondents.
G.R. No. 110427; February 24, 1997

FACTS OF THE CASE:

Being then 94 years of age, Carmen Cañiza was declared incompetent by

judgment of the RTC in a guardianship proceeding instituted by her niece,
Amparo A. Evangelista. The latter was appointed as the legal guardian of
her person and estate.

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Cañiza was the owner of a house and lot in Quezon City. In relation
thereto, she through her Evangelista commenced a suit to eject spouses
Pedro and Leonora Estrada from said premises. In the complaint, it was
alleged that Cañiza was the absolute owner of the property in question and
that out of kindness, she had allowed the Estrada Spouses to temporarily
reside in her house, rent-free.

In the answer, the respondents declared that in consideration of their

faithful service, they had been considered by Cañiza as her own family,
and the latter had in fact executed a holographic will where she
"bequeathed" to the Estradas the house and lot in question.

The MTC ruled in favor of Cañiza. The RTC, however, reversed this
decision. The CA upheld the RTC decision. In so ruling, it said that while
said will, unless and until it has passed probate by the proper court, could
not be the basis of respondents' claim to the property, it is indicative of
intent and desire on the part of Cañiza that respondents are to continue in
their occupancy and possession so much so that Cañiza's supervening
incompetency cannot be said to have vested in her guardian the right or
authority to drive the respondents out. To this, Caniza alleges error on the
part of the CA for relying on a xerox copy of an alleged holographic will
which is irrelevant to this case.

ISSUE:

Whether the CA erred in taking into consideration the alleged will of Cañiza
in deciding the issue. (YES)

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RULING OF THE SUPREME COURT:

The Estradas insist that the devise of the house to them by Cañiza clearly
denotes her intention that they remain in possession thereof and legally
incapacitated Evangelista from evicting them therefrom since their ouster
would be inconsistent with the ward's will. This must fail.

A will is essentially ambulatory. At any time prior to the testator's death, it

may be changed or revoked and until admitted to probate, it has no effect
whatever. No right can be claimed thereunder, the law being quite explicit:
"No will shall pass either real or personal property unless it is proved and
allowed in accordance with the Rules of Court". An owner's intention to
confer title in the future to persons possessing property by his tolerance is
not inconsistent with the former's taking back of possession in the
meantime for any reason deemed sufficient. In the case at bar, there was
sufficient cause for the owner's resumption of possession. She needed to
generate income from the house on account of the physical infirmities
afflicting her, arising from her extreme age.

DISPOSITIVE:

WHEREFORE, the petition is GRANTED. The Decision of the Court of

Appeals promulgated on June 2, 1993 — affirming the Regional Trial
Court's judgment and dismissing petitioner's petition for certiorari — is
REVERSED and SET ASIDE, and the Decision dated April 13, 1992 of the
Metropolitan Trial Court of Quezon City, Branch 35, in Civil Case No. 3410
is REINSTATED and AFFIRMED. Costs against private respondents.

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SO ORDERED.

DOCTRINE: The rule is established that where the act of destruction is

connected with the making of another will so as fairly to raise the inference
that the testator meant the revocation of the old to depend upon the
efficacy of a new disposition intended to be substituted, the revocation will
be conditional and dependent upon the efficacy of the new disposition; and
if, for any reason, the new will intended to be made as a substitute is
inoperative, the revocation fails and the original will remains in full force.
We hold therefore, that even in the supposition that the destruction of the
original will by the testator could be presumed from the failure of the
petitioner to produce it in court, such destruction cannot have the effect of
defeating the prior will of 1918 because of the fact that it is founded on the
mistaken belief that the will of 1939 has been validly executed and would
be given due effect.

It is true that our law on the matter (sec. 623, Code Civil Procedure)
provides that a will may be some will, codicil, or other writing executed as
proved in case of wills" but it cannot be said that the 1939 will should be
regarded, not as a will within the meaning of said word, but as "other
writing executed as provided in the case of wills", simply because it was
denied probate. And even if it be regarded as any other writing within the
meaning of said clause, there is authority for holding that unless said
writing is admitted to probate, it cannot have the effect of revocation

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Testate Estate of the Deceased MARIANO MOLO Y LEGASPI. JUANA
JUAN VDA. DE MOLO, Petitioner-appellee, -versus- LUZ, GLICERIA
and CORNELIO MOLO, Oppositors- appellants.
G.R. No. L-2538; September 21, 1951

FACTS OF THE CASE:

Mariano Molo y Legaspi died on January 24, 1941, in the municipality of

Pasay, province of Rizal, without leaving any forced heir either in the
descending or ascending line. He was survived, however, by his wife, the
herein petitioner Juana Juan Vda. de Molo, and by his nieces and nephew,
the oppositors-appellants, Luz Gliceria and Cornelio, all surnamed Molo,
who were the legitimate children of Candido Molo y Legaspi, deceased
brother of the testator. Mariano Molo y Legaspi left two wills, one executed
on August 17, 1918, and another executed on June 20, 1939. The later will
executed in 1918.

On February 7, 1941, Juana Juan Vda. de Molo, filed in the Court of First
Instance of Rizal a petition docketed as special proceeding no.8022
seeking the probate of the will executed by the deceased on June 20,
1939. There being no opposition, the will was probated. However, upon
petition filed by the herein oppositors, the order of the court admitting the
will to probate was set aside and the case was reopened. After hearing, at
which both parties presented their evidence, the court rendered decision
denying the probate of said will on the ground that the petitioner failed to
prove that the same was executed in accordance with law.

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In view of the disallowance of the will executed on June 20, 1939, the
widow on February 24, 1944, filed another petition for the probate of the will
executed by the deceased on August 17, 1918, which was docketed as
special proceeding No. 56, in the same court. Again, the same oppositors
filed an opposition to the petition based on three grounds: (1) that petitioner
is now estopped from seeking the probate of the will of 1918; (2) that said
will has not been executed in the manner required by law and (3) that the
will has been subsequently revoked. But before the second petition could
be heard, the battle for liberation came and the records of the case were
destroyed.
Consequently, a petition for reconstitution was filed, but the same was
found to be impossible because neither petitioner nor oppositors could
produce the copies required for its reconstitution. As a result, petitioner filed
a new petition on September 14, 1946, similar to the one destroyed, to
which the oppositors filed an opposition based on the same grounds as
those contained in their former opposition. The court issued an order
admitting the will to probate.

ISSUES:

1. W/N the probate court erred in not holding that the alleged will of
1918 was deliberately revoked by Molo himself. (NO)

2. W/N the lower court erred in not holding that Molo's will of 1918 was
subsequently revoked by the decedent's will of 1939. (NO)

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RULING OF THE SUPREME COURT:

1. The oppositors contend that the testator, after executing the 1939 will,
and with full knowledge of the recovatory clause contained said will, himself
deliberately destroyed the original of the 1918 will, and for that reason the
will submitted by petitioner for probate in these proceedings is only a
duplicate of said original.

There is no evidence which may directly indicate that the testator

deliberately destroyed the original of the 1918 will because of his
knowledge of the revocatory clause contained in the will he executed in
1939.

Granting for the sake of argument that the earlier will was voluntarily
destroyed by the testator after the execution of the second will, which
revoked the first, could there be any doubt, under this theory, that said
earlier will was destroyed by the testator in the honest belief that it was no
longer necessary because he had expressly revoked it in his will of 1939?
In other words, can we not say that the destruction of the earlier will was
but the necessary consequence of the testator's belief that the revocatory
clause contained in the subsequent will was valid and the latter would be
given effect? If such is the case, then it is our opinion that the earlier will
can still be admitted to probate under the principle of "dependent relative
revocation".

The rule is established that where the act of destruction is connected with
the making of another will so as fairly to raise the inference that the testator
meant the revocation of the old to depend upon the efficacy of a new

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disposition intended to be substituted, the revocation will be conditional and
dependent upon the efficacy of the new disposition; and if, for any reason,
the new will intended to be made as a substitute is inoperative, the
revocation fails and the original will remains in full force.

We hold therefore, that even in the supposition that the destruction of the
original will by the testator could be presumed from the failure of the
petitioner to produce it in court, such destruction cannot have the effect of
defeating the prior will of 1918 because of the fact that it is founded on the
mistaken belief that the will of 1939 has been validly executed and would
be given due effect. The theory on which this principle is predicated is that
the testator did not intend to die intestate. And this intention is clearly
manifest when he executed two wills on two different occasion and
instituted his wife as his universal heir. There can therefore be no mistake
as to his intention of dying testate.

The next contention of appellants refers to the revocatory clause contained

in 1939 will of the deceased which was denied probate. They contend that,
notwithstanding the disallowance of said will, the revocatory clause is valid
and still has the effect of nullifying the prior of 1918.
A subsequent will, containing a clause revoking a previous will, having
been disallowed, for the reason that it was not executed in conformity with
the provisions of section 618 of the Code of Civil Procedure as to the
making of wills, cannot produce the effect of annulling the previous will,
inasmuch as said revocatory clause is void.

It is universally agreed that where the second will is invalid on account of

not being executed in accordance with the provisions of the statute, or

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where the testator who has not sufficient mental capacity to make a will or
the will is procured through undue influence, or the such, in other words,
where the second will is really no will, it does not revoke the first will or
affect it in any manner.

It is true that our law on the matter (sec. 623, Code Civil Procedure)
provides that a will may be some will, codicil, or other writing
executed as proved in case of wills" but it cannot be said that the
1939 will should be regarded, not as a will within the meaning of said
word, but as "other writing executed as provided in the case of wills",
simply because it was denied probate. And even if it be regarded as
any other writing within the meaning of said clause, there is authority
for holding that unless said writing is admitted to probate, it cannot
have the effect of revocation.

DISPOSITIVE:
Wherefore, the order appealed from is hereby affirmed, with costs against
the appellants.

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DOCTRINE: In testate succession, there can be no valid partition among
the heirs until after the will has been probated. The law enjoins the probate
of a will and the public requires it, because unless a will is probated and
notice thereof given to the whole world, the right of a person to dispose of
his property by will may be rendered nugatory. The authentication of a will
decides no other question than such as touch upon the capacity of the
testator and the compliance with those requirements or solemnities which
the law prescribes for the validity of a will.

G.R. No. 149926 February 23, 2005

UNION BANK OF THE PHILIPPINES, petitioner,

vs.
EDMUND SANTIBAÑEZ and FLORENCE SANTIBAÑEZ
ARIOLA, respondents.

FACTS OF THE CASE:

On May 31, 1980, the First Countryside Credit Corporation (FCCC) and
Efraim M. Santibañez entered into a loan agreement3 in the amount of
₱128,000.00. The amount was intended for the payment of the purchase
price of one (1) unit Ford 6600 Agricultural All-Purpose Diesel Tractor. In
view thereof, Efraim and his son, Edmund, executed a promissory note in
favor of the FCCC, the principal sum payable in five equal annual

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amortizations of ₱43,745.96 due on May 31, 1981 and every May 31st
thereafter up to May 31, 1985.

On December 13, 1980, the FCCC and Efraim entered into another loan
agreement,4 this time in the amount of ₱123,156.00. It was intended to pay
the balance of the purchase price of another unit of Ford 6600 Agricultural
All-Purpose Diesel Tractor, with accessories, and one (1) unit Howard
Rotamotor Model AR 60K. Again, Efraim and his son, Edmund, executed a
promissory note for the said amount in favor of the FCCC. Aside from such
promissory note, they also signed a Continuing Guaranty Agreement 5 for
the loan dated December 13, 1980.

Sometime in February 1981, Efraim died, leaving a holographic

will.6 Subsequently in March 1981, testate proceedings commenced before
the RTC of Iloilo City, Branch 7, docketed as Special Proceedings No.
2706. On April 9, 1981, Edmund, as one of the heirs, was appointed as the
special administrator of the estate of the decedent. 7 During the pendency of
the testate proceedings, the surviving heirs, Edmund and his sister
Florence Santibañez Ariola, executed a Joint Agreement8 dated July 22,
1981, wherein they agreed to divide between themselves and take
possession of the three (3) tractors; that is, two (2) tractors for Edmund and
one (1) tractor for Florence. Each of them was to assume the indebtedness
of their late father to FCCC, corresponding to the tractor respectively taken
by them.

On August 20, 1981, a Deed of Assignment with Assumption of

Liabilities9 was executed by and between FCCC and Union Savings and

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Mortgage Bank, wherein the FCCC as the assignor, among others,
assigned all its assets and liabilities to Union Savings and Mortgage Bank.

Demand letters10 for the settlement of his account were sent by petitioner
Union Bank of the Philippines (UBP) to Edmund, but the latter failed to
heed the same and refused to pay. Thus, on February 5, 1988, the
petitioner filed a Complaint11 for sum of money against the heirs of Efraim
Santibañez, Edmund and Florence, before the RTC of Makati City, Branch
150, docketed as Civil Case No. 18909. Summonses were issued against
both, but the one intended for Edmund was not served since he was in the
United States and there was no information on his address or the date of
his return to the Philippines.12 Accordingly, the complaint was narrowed
down to respondent Florence S. Ariola.

On December 7, 1988, respondent Florence S. Ariola filed her

Answer13 and alleged that the loan documents did not bind her since she
was not a party thereto. Considering that the joint agreement signed by her
and her brother Edmund was not approved by the probate court, it was null
and void; hence, she was not liable to the petitioner under the joint
agreement.

RULING OF THE RTC:

On January 29, 1990, the case was unloaded and re-raffled to the RTC of
Makati City, Branch 63.14 Consequently, trial on the merits ensued and a
decision was subsequently rendered by the court dismissing the complaint
for lack of merit.

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The trial court found that the claim of the petitioner should have been filed
with the probate court before which the testate estate of the late Efraim
Santibañez was pending, as the sum of money being claimed was an
obligation incurred by the said decedent. The trial court also found that the
Joint Agreement apparently executed by his heirs, Edmund and Florence,
on July 22, 1981, was, in effect, a partition of the estate of the decedent.
However, the said agreement was void, considering that it had not been
approved by the probate court, and that there can be no valid partition until
after the will has been probated. The trial court further declared that
petitioner failed to prove that it was the now defunct Union Savings and
Mortgage Bank to which the FCCC had assigned its assets and liabilities.
The court also agreed to the contention of respondent Florence S. Ariola
that the list of assets and liabilities of the FCCC assigned to Union Savings
and Mortgage Bank did not clearly refer to the decedent’s account. Ruling
that the joint agreement executed by the heirs was null and void, the trial
court held that the petitioner’s cause of action against respondent Florence
S. Ariola must necessarily fail.

RULING OF THE CA:

The appellate court found that the appeal was not meritorious and held
that the petitioner should have filed its claim with the probate court as
provided under Sections 1 and 5, Rule 86 of the Rules of Court. It further
held that the partition made in the agreement was null and void, since no
valid partition may be had until after the will has been probated.

The petitioner claims that the obligations of the deceased were transmitted
to the heirs as provided in Article 774 of the Civil Code; there was thus no

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2023-24-2ND SEM.
need for the probate court to approve the joint agreement where the heirs
partitioned the tractors owned by the deceased and assumed the
obligations related thereto. Since respondent Florence S. Ariola signed the
joint agreement without any condition, she is now estopped from asserting
any position contrary thereto. The petitioner also points out that the
holographic will of the deceased did not include nor mention any of the
tractors subject of the complaint, and, as such was beyond the ambit of the
said will. The active participation and resistance of respondent Florence S.
Ariola in the ordinary civil action against the petitioner’s claim amounts to a
waiver of the right to have the claim presented in the probate proceedings,
and to allow any one of the heirs who executed the joint agreement to
escape liability to pay the value of the tractors under consideration would
be equivalent to allowing the said heirs to enrich themselves to the damage
and prejudice of the petitioner.

ISSUES:

A. Whether or not the heirs’ assumption of the indebtedness of the

deceased is valid; and
B. Whether the petitioner can hold the heirs liable on the obligation of
the deceased.

RULING OF THE SUPREME COURT:

The petition is bereft of merit.

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The probate court has the jurisdiction to determine all the properties of the
deceased, to determine whether they should or should not be included in
the inventory or list of properties to be administered.20 The said court is
primarily concerned with the administration, liquidation and distribution of
the estate.21

In our jurisdiction, the rule is that there can be no valid partition among the
heirs until after the will has been probated:

In testate succession, there can be no valid partition among the heirs until
after the will has been probated. The law enjoins the probate of a will and
the public requires it, because unless a will is probated and notice thereof
given to the whole world, the right of a person to dispose of his property by
will may be rendered nugatory. The authentication of a will decides no
other question than such as touch upon the capacity of the testator and the
compliance with those requirements or solemnities which the law
prescribes for the validity of a will.

This, of course, presupposes that the properties to be partitioned are the

same properties embraced in the will.23 In the present case, the deceased,
Efraim Santibañez, left a holographic will24 which contained, inter alia, the
provision which reads as follows:

(e) All other properties, real or personal, which I own and may be
discovered later after my demise, shall be distributed in the proportion
indicated in the immediately preceding paragraph in favor of Edmund and
Florence, my children.

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We agree with the appellate court that the above-quoted is an all-
encompassing provision embracing all the properties left by the decedent
which might have escaped his mind at that time he was making his will, and
other properties he may acquire thereafter. Included therein are the three
(3) subject tractors. This being so, any partition involving the said tractors
among the heirs is not valid. The joint agreement25 executed by Edmund
and Florence, partitioning the tractors among themselves, is invalid,
specially so since at the time of its execution, there was already a pending
proceeding for the probate of their late father’s holographic will covering the
said tractors.

It must be stressed that the probate proceeding had already acquired

jurisdiction over all the properties of the deceased, including the three (3)
tractors. To dispose of them in any way without the probate court’s
approval is tantamount to divesting it with jurisdiction which the Court
cannot allow.26 Every act intended to put an end to indivision among co-
heirs and legatees or devisees is deemed to be a partition, although it
should purport to be a sale, an exchange, a compromise, or any other
transaction.27 Thus, in executing any joint agreement which appears to be in
the nature of an extra-judicial partition, as in the case at bar, court approval
is imperative, and the heirs cannot just divest the court of its jurisdiction
over that part of the estate. Moreover, it is within the jurisdiction of the
probate court to determine the identity of the heirs of the decedent. 28 In the
instant case, there is no showing that the signatories in the joint agreement
were the only heirs of the decedent. When it was executed, the probate of
the will was still pending before the court and the latter had yet to
determine who the heirs of the decedent were. Thus, for Edmund and

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respondent Florence S. Ariola to adjudicate unto themselves the three (3)
tractors was a premature act, and prejudicial to the other possible heirs and
creditors who may have a valid claim against the estate of the deceased.

The question that now comes to fore is whether the heirs’ assumption of
the indebtedness of the decedent is binding. We rule in the negative.
Perusing the joint agreement, it provides that the heirs as parties thereto
"have agreed to divide between themselves and take possession and use
the above-described chattel and each of them to assume the indebtedness
corresponding to the chattel taken as herein after stated which is in favor of
First Countryside Credit Corp."29 The assumption of liability was conditioned
upon the happening of an event, that is, that each heir shall take
possession and use of their respective share under the agreement. It was
made dependent on the validity of the partition, and that they were to
assume the indebtedness corresponding to the chattel that they were each
to receive. The partition being invalid as earlier discussed, the heirs in
effect did not receive any such tractor. It follows then that the assumption of
liability cannot be given any force and effect.

The Court notes that the loan was contracted by the decedent. The
petitioner, purportedly a creditor of the late Efraim Santibañez, should have
thus filed its money claim with the probate court in accordance with Section
5, Rule 86 of the Revised Rules of Court, which provides:

Section 5. Claims which must be filed under the notice. If not filed
barred; exceptions. — All claims for money against the decedent,
arising from contract, express or implied, whether the same be due,
not due, or contingent, all claims for funeral expenses for the last

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 sickness of the decedent, and judgment for money against the
decedent, must be filed within the time limited in the notice; otherwise
they are barred forever, except that they may be set forth as
counterclaims in any action that the executor or administrator may
bring against the claimants. Where an executor or administrator
commences an action, or prosecutes an action already commenced
by the deceased in his lifetime, the debtor may set forth by answer
the claims he has against the decedent, instead of presenting them
independently to the court as herein provided, and mutual claims
may be set off against each other in such action; and if final judgment
is rendered in favor of the defendant, the amount so determined shall
be considered the true balance against the estate, as though the
claim had been presented directly before the court in the
administration proceedings. Claims not yet due, or contingent, may
be approved at their present value.

The filing of a money claim against the decedent’s estate in the probate
court is mandatory. As we held in the vintage case of Py Eng Chong v.
Herrera:31

… This requirement is for the purpose of protecting the estate of the

deceased by informing the executor or administrator of the claims
against it, thus enabling him to examine each claim and to determine
whether it is a proper one which should be allowed. The plain and
obvious design of the rule is the speedy settlement of the affairs of
the deceased and the early delivery of the property to the
distributees, legatees, or heirs. `The law strictly requires the prompt
presentation and disposition of the claims against the decedent's
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 estate in order to settle the affairs of the estate as soon as possible,
pay off its debts and distribute the residue.32

Perusing the records of the case, nothing therein could hold private
respondent Florence S. Ariola accountable for any liability incurred by her
late father. The documentary evidence presented, particularly the
promissory notes and the continuing guaranty agreement, were executed
and signed only by the late Efraim Santibañez and his son Edmund. As the
petitioner failed to file its money claim with the probate court, at most, it
may only go after Edmund as co-maker of the decedent under the said
promissory notes and continuing guaranty, of course, subject to any
defenses Edmund may have as against the petitioner. As the court had not
acquired jurisdiction over the person of Edmund, we find it unnecessary to
delve into the matter further.

We agree with the finding of the trial court that the petitioner had not
sufficiently shown that it is the successor-in-interest of the Union Savings
and Mortgage Bank to which the FCCC assigned its assets and
liabilities.33 The petitioner in its complaint alleged that "by virtue of the Deed
of Assignment dated August 20, 1981 executed by and between First
Countryside Credit Corporation and Union Bank of the
Philippines…"34 However, the documentary evidence35 clearly reflects that
the parties in the deed of assignment with assumption of liabilities were the
FCCC, and the Union Savings and Mortgage Bank, with the conformity of
Bancom Philippine Holdings, Inc. Nowhere can the petitioner’s participation
therein as a party be found. Furthermore, no documentary or testimonial
evidence was presented during trial to show that Union Savings and

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Mortgage Bank is now, in fact, petitioner Union Bank of the Philippines. As
the trial court declared in its decision:

… [T]he court also finds merit to the contention of defendant that plaintiff
failed to prove or did not present evidence to prove that Union Savings and
Mortgage Bank is now the Union Bank of the Philippines. Judicial notice
does not apply here. "The power to take judicial notice is to [be] exercised
by the courts with caution; care must be taken that the requisite notoriety
exists; and every reasonable doubt upon the subject should be promptly
resolved in the negative." (Republic vs. Court of Appeals, 107 SCRA
504).36

This being the case, the petitioner’s personality to file the complaint is
wanting. Consequently, it failed to establish its cause of action. Thus, the
trial court did not err in dismissing the complaint, and the CA in affirming
the same.

DISPOSITIVE:

IN LIGHT OF ALL THE FOREGOING, the petition is hereby DENIED. The

assailed Court of Appeals Decision is AFFIRMED. No costs.

SO ORDERED.

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DOCTRINE: Preterition consists in the omission of a compulsory heir from
the will, either because he is not named or, although he is named as a
father, son, etc., he is neither instituted as an heir nor assigned any part of
the estate without expressly being disinherited – tacitly depriving the heir of
his legitime. It requires that the omission be total which means that the heir
did not also receive any legacy, devise, or advance on his legitime. In the
case at bar, the decedent’s will evidently omitted Francisco Olondriz as an
heir, legatee, or devisee when in fact he, being an illegitimate son, is a
compulsory heir in the direct line. Unless Morales could show otherwise,
Francisco’s omission from the will leads to the conclusion of his preterition.
No evidence, however, was adduced that would show that donations inter
vivos and advances on his legitime were received by Francisco. As such,

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considering that the subject will does not contain specific legacy or device
and that Francisco’s preterition annulled the institution of heirs, the total
abrogation of the will resulting in total intestacy happened. The decedent’s
will, no matter how valid it may appear extrinsically, is null and void.

IRIS MORALES, Petitioner, -versus - ANA MARIA OLONDRIZ,

ALFONSO JUAN OLONDRIZ, JR., ALEJANDRO MORENO OLONDRIZ,
ISABEL ROSA OLONDRIZ and FRANCISCO JAVIER MARIA
OLONDRIZ, Respondents.
G.R. No. 198994; February 3, 2016

FACTS OF THE CASE:

Alfonso Juan P. Olondriz, Sr. (the decedent) died on June 9, 2003.

Believing that the decedent died intestate, the respondent heirs filed a
petition for the partition of the decedent’s estate and the appointment of a
special administrator. The RTC appointed Alfonso Juan O. Olondriz, Jr.
one of the heirs as special administrator.

Iris Morales, however, filed a separate petition with the RTC alleging that
the decedent left a will which omitted Francisco Javier Maria Olondriz, an
illegitimate son of the decedent. She moved for the suspension the
intestate proceedings in order to give way to the probate of the said will.

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This was opposed by the respondent heirs and moved to dismiss the
probate proceedings because Francisco was preterited from the will.

The RTC suspended the intestate proceedings and set the case or probate.
It reasoned that probate proceedings take precedence over intestate
proceedings.

ISSUES:

A. Whether there was preterition. (YES)

B. Whether it was proper for the RTC to pass upon the intrinsic validity
of the will during probate proceedings. (YES)

RULING:

(A) Preterition consists in the omission of a compulsory heir from the will,
either because he is not named or, although he is named as a father, son,
etc., he is neither instituted as an heir nor assigned any part of the estate
without expressly being disinherited – tacitly depriving the heir of his
legitime. It requires that the omission be total which means that the heir did
not also receive any legacy, devise, or advance on his legitime.

Under the Civil Code, the preterition of a compulsory heir in the direct line
shall annul the institution of heirs, but the devises and legacies shall remain
valid insofar as the legitimes are not impaired. Consequently, if a will does
not institute any devisee or legatee, the preterition of a compulsory heir in
the direct line will result in total intestacy.

In the case at bar, the decedent’s will evidently omitted Francisco Olondriz
as an heir, legatee, or devisee when in fact he, being an illegitimate son, is

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a compulsory heir in the direct line. Unless Morales could show otherwise,
Francisco’s omission from the will leads to the conclusion of his preterition.
No evidence, however, was adduced that would show that donations inter
vivos and advances on his legitime were received by Francisco.

Furthermore, considering that subject will does not contain specific legacy
or device and that Francisco’s preterition annulled the institution of heirs,
the total abrogation of the will resulting in total intestacy happened. The
decedent’s will, no matter how valid it may appear extrinsically, is null and
void.

(B) The general rule is that in probate proceedings, the scope of the court’s
inquiry is limited to questions on the extrinsic validity of the will such that
the probate court will only determine the will’s formal validity and due
execution. This rule, however, is not inflexible and absolute. It is not
beyond the probate court’s jurisdiction to pass upon the intrinsic validity of
the will when so warranted by exceptional circumstances. When practical
considerations demand that the intrinsic validity of the will be passed upon
even before it is probated, the probate court should meet the issue.

DISPOSITIVE:

WHEREFORE, the petition is DISMISSED. Costs against the petitioner.

SO ORDERED.

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DOCTRINE: In case of doubt, the conveyance should be deemed a
donation inter vivos rather than mortis causa, in order to avoid uncertainty
as to the ownership of the property subject of the deed.

G.R. No. 187056 September 20, 2010

JARABINI G. DEL ROSARIO, Petitioner,

vs.
ASUNCION G. FERRER, substituted by her heirs, VICENTE, PILAR,
ANGELITO, FELIXBERTO, JR., all surnamed G. FERRER, and
MIGUELA FERRER ALTEZA, Respondents.

FACTS OF THE CASE:

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On August 27, 1968 the spouses Leopoldo and Guadalupe Gonzales
executed a document entitled "Donation Mortis Causa"1 in favor of their two
children, Asuncion and Emiliano, and their granddaughter, Jarabini
(daughter of their predeceased son, Zoilo) covering the spouses’ 126-
square meter lot and the house on it in Pandacan, Manila2 in equal shares.
The deed of donation reads:

It is our will that this Donation Mortis Causa shall be irrevocable and shall
be respected by the surviving spouse.

It is our will that Jarabini Gonzales-del Rosario and Emiliano Gonzales will
continue to occupy the portions now occupied by them.

It is further our will that this DONATION MORTIS CAUSA shall not in any
way affect any other distribution of other properties belonging to any of us
donors whether testate or intestate and where ever situated.

It is our further will that any one surviving spouse reserves the right,
ownership, possession and administration of this property herein donated
and accepted and this Disposition and Donation shall be operative and
effective upon the death of the DONORS.3

Although denominated as a donation mortis causa, which in law is the

equivalent of a will, the deed had no attestation clause and was witnessed
by only two persons. The named donees, however, signified their
acceptance of the donation on the face of the document.

Guadalupe, the donor wife, died in September 1968. A few months later or
on December 19, 1968, Leopoldo, the donor husband, executed a deed of

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assignment of his rights and interests in subject property to their daughter
Asuncion. Leopoldo died in June 1972.

In 1998 Jarabini filed a "petition for the probate of the August 27, 1968
deed of donation mortis causa" before the Regional Trial Court (RTC) of
Manila in Sp. Proc. 98-90589.4 Asuncion opposed the petition, invoking his
father Leopoldo’s assignment of his rights and interests in the property to
her.

DECISION OF THE RTC:

The RTC rendered a decision finding that the donation was in fact one
made inter vivos, the donors’ intention being to transfer title over the
property to the donees during the donors’ lifetime, given its irrevocability.
Consequently, said the RTC, Leopoldo’s subsequent assignment of his
rights and interest in the property was void since he had nothing to assign.
The RTC thus directed the registration of the property in the name of the
donees in equal shares.

RULING OF THE CA:

On Asuncion’s appeal to the Court of Appeals (CA), the latter rendered a

decision on December 23, 2008, reversing that of the RTC.

The CA held that Jarabini cannot, through her petition for the probate of the
deed of donation mortis causa, collaterally attack Leopoldo’s deed of
assignment in Asuncion’s favor. The CA further held that, since no
proceeding exists for the allowance of what Jarabini claimed was actually a
donation inter vivos, the RTC erred in deciding the case the way it did.

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Finally, the CA held that the donation, being one given mortis causa, did
not comply with the requirements of a notarial will, 8 rendering the same
void. Following the CA’s denial of Jarabini’s motion for
reconsideration,9 she filed the present petition with this Court.

ISSUE: Whether or not the spouses Leopoldo and Guadalupe’s donation to

Asuncion, Emiliano, and Jarabini was a donation mortis causa, as it was
denominated, or in fact a donation inter vivos.

RULING OF THE SUPREME COURT:

That the document in question in this case was captioned "Donation Mortis
Causa" is not controlling. This Court has held that, if a donation by its terms
is inter vivos, this character is not altered by the fact that the donor styles
it mortis causa.

In Austria-Magat v. Court of Appeals,11 the Court held that "irrevocability" is

a quality absolutely incompatible with the idea of conveyances mortis
causa, where "revocability" is precisely the essence of the act. A donation
mortis causa has the following characteristics:

1. It conveys no title or ownership to the transferee before the death

of the transferor; or, what amounts to the same thing, that the
transferor should retain the ownership (full or naked) and control of
the property while alive;

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 2. That before his death, the transfer should be revocable by the
transferor at will, ad nutum; but revocability may be provided for
indirectly by means of a reserved power in the donor to dispose of the
properties conveyed; and

3. That the transfer should be void if the transferor should survive the
transferee.12 (Underscoring supplied)

Here, the donors plainly said that it is "our will that this Donation Mortis
Causa shall be irrevocable and shall be respected by the surviving
spouse." The intent to make the donation irrevocable becomes even
clearer by the proviso that a surviving donor shall respect the irrevocability
of the donation. Consequently, the donation was in reality a donation inter
vivos.

The donors in this case of course reserved the "right, ownership,

possession, and administration of the property" and made the donation
operative upon their death. But this Court has consistently held that such
reservation (reddendum) in the context of an irrevocable donation simply
means that the donors parted with their naked title, maintaining
only beneficial ownership of the donated property while they lived.13

Notably, the three donees signed their acceptance of the donation, which
acceptance the deed required.14 This Court has held that an acceptance
clause indicates that the donation is inter vivos, since acceptance is a
requirement only for such kind of donations.Donations mortis causa, being
in the form of a will, need not be accepted by the donee during the donor’s
lifetime.15

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Finally, as Justice J. B. L. Reyes said in Puig v. Peñaflorida,16 in case of
doubt, the conveyance should be deemed a donation inter vivos rather
than mortis causa, in order to avoid uncertainty as to the ownership of the
property subject of the deed.

Since the donation in this case was one made inter vivos, it was
immediately operative and final. The reason is that such kind of donation is
deemed perfected from the moment the donor learned of the donee’s
acceptance of the donation. The acceptance makes the donee the absolute
owner of the property donated.17

Given that the donation in this case was irrevocable or one given inter
vivos, Leopoldo’s subsequent assignment of his rights and interests in the
property to Asuncion should be regarded as void for, by then, he had no
more rights to assign. He could not give what he no longer had. Nemo dat
quod non habet.18

The trial court cannot be faulted for passing upon, in a petition for probate
of what was initially supposed to be a donation mortis causa, the validity of
the document as a donation inter vivos and the nullity of one of the donor’s
subsequent assignment of his rights and interests in the property. The
Court has held before that the rule on probate is not inflexible and
absolute.19 Moreover, in opposing the petition for probate and in putting the
validity of the deed of assignment squarely in issue, Asuncion or those who
substituted her may not now claim that the trial court improperly allowed a
collateral attack on such assignment.

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DISPOSITIVE:

WHEREFORE, the Court GRANTS the petition, SETS ASIDE the assailed
December 23, 2008 Decision and March 6, 2009 Resolution of the Court of
Appeals in CA-G.R. CV 80549, and REINSTATES in toto the June 20,
2003 Decision of the Regional Trial Court of Manila, Branch 19, in Sp.
Proc. 98-90589.

SO ORDERED.

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