I.
Probate of the will is mandatory
Guevarra vs. Guevarra
 Ernesto M. Guevarra and Rosario Guevara, ligitimate son and natural daughter,
respectively, of the deceased Victorino L. Guevara, are litigating here over their inheritance
from the latter.
 The action by Rosario Guevara to recover from Ernesto Guevara what she claims to
be her strict ligitime as an acknowledged natural daughter of the deceased — to wit,
a portion of 423,492 square meters of a large parcel of land — and to order the latter to
pay her P6,000 plus P2,000 a year as damages for withholding such legitime from her.
 The defendant answered the complaint contending that whatever right or rights the
plaintiff might have had, had been barred by the operation of law.
 It appears that on August 26, 1931, Victorino L. Guevara executed a will (exhibit A),
apparently with all the formalities of the law, wherein he made the following bequests: To
his stepdaughter Candida Guevara, a pair of earrings worth P150 and a gold chain worth
P40; to his son Ernesto M. Guevara, a gold ring worth P180 and all the furniture, pictures,
statues, and other religious objects found in the residence of the testator in Poblacion Sur,
Bayambang, Pangasinan; "a mi hija Rosario Guevara," a pair of earrings worth P120; to his
stepson Piuo Guevara, a ring worth P120; and to his wife by second marriage, Angustia
Posadas, various pieces of jewelry worth P1,020.
 On September 27, 1933, Victorino L. Guevarra died. His last will and testament,
however, was never presented to the court for probate, nor has any administration
proceeding ever been instituted for the settlement of his estate. Whether the various
legatees mentioned in the will have received their respective legacies or have even
been given due notice of the execution of said will and of the dispositions therein
made in their favor, does not affirmatively appear from the record of this case.
 Ever since the death of Victorino L. Guevara, his only legitimate son Ernesto M. Guevara
appears to have possessed the land adjudicated to him in the registration
proceeding and to have disposed of various portions thereof for the purpose of
paying the debts left by his father.
 In the meantime Rosario Guevara, who appears to have had her father's last will and
testament in her custody, did nothing judicially to invoke the testamentary
dispositions made therein in her favor, whereby the testator acknowledged her as
his natural daughter and, aside from certain legacies and bequests, devised to her a
portion of 21.6171 hectares of the large parcel of land described in the will.
 But a little over four years after the testor's demise, she (assisted by her husband)
commenced the present action against Ernesto M. Guevara alone for the purpose
hereinbefore indicated; and it was only during the trial of this case that she
presented the will to the court, not for the purpose of having it probated but only to
prove that the deceased Victirino L. Guevara had acknowledged her as his natural
daughter.
 Upon that proof of acknowledgment she claimed her share of the inheritance from
him, but on the theory or assumption that he died intestate, because the will had not
been probated, for which reason, she asserted, the betterment therein made by the
testator in favor of his legitimate son Ernesto M. Guevara should be disregarded.
 Both the trial court and the Court of appeals sustained that theory.
Ruling: We cannot sanction the procedure adopted by the respondent Rosario Guevara, it being
in our opinion in violation of procedural law and an attempt to circumvent and disregard the
last will and testament of the decedent.
The proceeding for the probate of a will is one in rem, with notice by publication to the whole
world and with personal notice to each of the known heirs, legatees, and devisees of the
testator Altho not contested the due execution of the will and the fact that the testator at the
time of its execution was of sound and disposing mind and not acting under duress, menace,
and undue influence or fraud, must be proved to the satisfaction of the court, and only then
may the will be legalized and given effect by means of:
a certificate of its allowance, signed by the judge and attested by the seal of the court; and when
the will devises real property, attested copies thereof and of the certificate of allowance must
be recorded in the register of deeds of the province in which the land lies. (Section 12, Rule 77,
and section 624, C. C. P.)
It will readily be seen from the above provisions of the law that the presentation of a will to
the court for probate is mandatory and its allowance by the court is essential and
indispensable to its efficacy.
To assure and compel the probate of will, the law punishes a person who neglects his duty to
present it to the court with a fine not exceeding P2,000, and if he should persist in not
presenting it, he may be committed to prision and kept there until he delivers the will.
The Court of Appeals took express notice of these requirements of the law and held that a will,
unless probated, is ineffective. Nevertheless it sanctioned the procedure adopted by the
respondent for the following reasons:
The majority of the Court is of the opinion that if this case is dismissed ordering the filing
of testate proceedings, it would cause injustice, incovenience, delay, and much
expense to the parties, and that therefore, it is preferable to leave them in the very
status which they themselves have chosen, and to decide their controversy once and
for all, since, in a similar case, the Supreme Court applied that same criterion
(Leaño vs. Leaño, supra), which is now sanctioned by section 1 of Rule 74 of the Rules of
Court. Besides, section 6 of Rule 124 provides that, if the procedure which the court ought
to follow in the exercise of its jurisdiction is not specifically pointed out by the Rules of
Court, any suitable process or mode of procedure may be adopted which appears most
consistent to the spirit of the said Rules. Hence, we declare the action instituted by the
plaintiff to be in accordance with law.
Let us look into the validity of these considerations. Section 1 of Rule 74 provides as follows:
Section 1. Extrajudicial settlement by agreement between heirs. — If the decedent left no
debts and the heirs and legatees are all of age, or the minors are represented by their
judicial guardians, the parties may, without securing letters of administration, divide
the estate among themselves as they see fit by means of a public instrument filed in
the office of the register of deeds, and should they disagree, they may do so in an
ordinary action of partition. If there is only one heir or one legatee, he may adjudicate to
himself the entire estate by means of an affidavit filed in the office of the register of deeds.
It shall be presumed that the decedent left no debts if no creditor files a petition for
letters of administration within two years after the death of the decedent.
That is a modification of section 596 of the Code of Civil Procedure, which reads as follows:
Sec. 596. Settlement of Certain Intestates Without Legal Proceedings. — Whenever all the
heirs of a person who died intestate are of lawful age and legal capacity and there are no
debts due from the estate, or all the debts have been paid the heirs may, by agreement duly
executed in writing by all of them, and not otherwise, apportion and divide the estate
among themselves, as they may see fit, without proceedings in court.
The implication is that by the omission of the word "intestate" and the use of the word
"legatees" in section 1 of Rule 74, a summary extrajudicial settlement of a deceased person's
estate, whether he died testate or intestate, may be made under the conditions specified. Even
if we give retroactive effect to section 1 of Rule 74 and apply it here, as the Court of Appeals did, we
do not believe it sanctions the nonpresentation of a will for probate and much less the nullification of
such will thru the failure of its custodian to present it to the court for probate; for such a result is
precisely what Rule 76 sedulously provides against.
Section 1 of Rule 74 merely authorizes the extrajudicial or judicial partition of the estate of a
decedent "without securing letter of administration." It does not say that in case the decedent
left a will the heirs and legatees may divide the estate among themselves without the necessity
of presenting the will to the court for probate. The petition to probate a will and the petition to
issue letters of administration are two different things, although both may be made in the same case.
The allowance of a will precedes the issuance of letters testamentary or of administration
(section 4, Rule 78). One can have a will probated without necessarily securing letters
testamentary or of administration.
We hold that under section 1 of Rule 74, in relation to Rule 76, if the decedent left a will and no debts
and the heirs and legatees desire to make an extrajudicial partition of the estate, they must first
present that will to the court for probate and divide the estate in accordance with the will. They
may not disregard the provisions of the will unless those provisions are contrary to law.
Neither may they so away with the presentation of the will to the court for probate, because
such suppression of the will is contrary to law and public policy. The law enjoins the probate of
the will and public policy requires it, because unless the 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, as
is attempted to be done in the instant case. Absent legatees and devisees, or such of them as may have
no knowledge of the will, could be cheated of their inheritance thru the collusion of some of the heirs
who might agree to the partition of the estate among themselves to the exclusion of others.
In the instant case there is no showing that the various legatees other than the present litigants
had received their respective legacies or that they had knowledge of the existence and of the
provisions of the will. Their right under the will cannot be disregarded, nor may those rights
be obliterated on account of the failure or refusal of the custodian of the will to present it to
the court for probate.
Even if the decedent left no debts and nobdy raises any question as to the authenticity and due
execution of the will, none of the heirs may sue for the partition of the estate in accordance
with that will without first securing its allowance or probate by the court:
First, because the law expressly provides that "no will shall pass either real or personal estate
unless it is proved and allowed in the proper court" (Art 838) ; and,
Second, because the probate of a will, which is a proceeding in rem, cannot be dispensed with
the substituted by any other proceeding, judicial or extrajudicial, without offending against public
policy designed to effectuate the testator's right to dispose of his property by will in
accordance with law and to protect the rights of the heirs and legatees under the will thru the
means provided by law, among which are the publication and the personal notices to each and all of
said heirs and legatees.
Nor may the court approve and allow the will presented in evidence in such an action for partition,
which is one in personam, any more than it could decree the registration under the Torrens system of
the land involved in an ordinary action for reinvindicacion or partition.
We therefore believe and so hold that section 1 of Rule 74, relied upon by the Court of Appeals,
does not sanction the procedure adopted by the respondent.
The case of Leaño vs. Leaño (25 Phil., 180), cited by the Court of Appeals, like section 1 of Rule 74,
sanctions the extrajudicial partition by the heirs of the properties left by a decedent, but not
the nonpresentation of a will for probate.
That decision cannot be relied upon as an authority for the unprecedented and unheard of
procedure adopted by the respondent whereby she seeks to prove her status as an
acknowledged natural child of the decedent by his will and attempts to nullify and circumvent
the testamentary dispositions made by him by not presenting the will to the court for probate
and by claiming her legitime as an acknowledged natural child on the basis of intestacy; and
that in the face of express mandatory provisions of the law requiring her to present the will to
the court for probate.
In the subsequent case of Riosa vs. Rocha (1926), 48 Phil. 737, this Court departed from the
procedure sanctioned by the trial court and impliedly approved by this Court in the Leaño
case, by holding that an extrajudicial partition is not proper in testate succession.
The Court of Appeals also cites section 6 of Rule 124, which provides that if the procedure which the
court ought to follow in the exercise of its jurisdiction is not specifically pointed out by the Rules of
Court, any suitable process for mode of proceeding may be adopted which appears most conformable
to the spirit of the said Rules. That provision is not applicable here for the simple reason that the
procedure which the court ought to follow in the exercise of its jurisdiction is specifically pointed out
and prescribed in detail by Rules 74, 76, and 77 of the Rules of Court.
The Court of Appeals also said "that if this case is dismissed, ordering the filing of testate proceedings,
it would cause injustice, inconvenience, delay, and much expense to the parties." We see no injustice
in requiring the plaintiff not to violate but to comply with the law. On the contrary, an injustice
might be committed against the other heirs and legatees mentioned in the will if the attempt
of the plaintiff to nullify said will by not presenting it to the court for probate should be
sanctioned. As to the inconvenience, delay, and expense, the plaintiff herself is to blame
because she was the custodian of the will and she violated the duty imposed upon her by
sections 2, 4, and 5 of Rule 76, which command her to deliver said will to the court on pain of
a fine not exceeding P2,000 and of imprisonment for contempt of court. As for the defendant,
he is not complaining of inconvenience, delay, and expense, but on the contrary he is insisting
that the procedure prescribed by law be followed by the plaintiff.
Our conclusion is that the Court of Appeals erred in declaring the action instituted by the plaintiff to
be in accordance with law. It also erred in awarding relief to the plaintiff in this action on the basis of
intestacy of the decedent notwithstanding the proven existence of a will left by him and solely because
said will has not been probated due to the failure of the plaintiff as custodian thereof to comply with
the duty imposed upon her by the law.
It is apparent that the defendant Ernesto M. Guevara, who was named executor in said will, did not
take any step to have it presented to the court for probate and did not signify his acceptance of the
trust or refusal to accept it as required by section 3 of Rule 76 (formerly section 627 of the Code of
Civil Procedure), because his contention is that said will, insofar as the large parcel of land in litigation
is concerned, has been superseded by the deed of sale exhibit 2 and by the subsequent issuance of the
Torrens certificate of title in his favor.
.
Wherefore, the judgment of said court insofar as it awards any relief to the respondent Rosario
Guevara in this action is hereby reversed and set aside, and the parties herein are hereby
ordered to present the document exhibit A to the proper court for probate in accordance with
law, without prejudice to such action as the provincial fiscal of Pangasinan may take against the
responsible party or parties under section 4 of Rule 76 (the law punishes a person who neglects
his duty to present it to the court with a fine not exceeding P2,000, and if he should persist in
not presenting it, he may be committed to prision and kept there until he delivers the will.)
After the said document is approved and allowed by the court as the last will and testament of
the deceased Victorino L. Guevara, the heirs and legatees therein named may take such action,
judicial or extrajudicial, as may be necessary to partition the estate of the testator, taking into
consideration the pronouncements made in part II of this opinion. No finding as to costs in any
of the three instances.
II. Two Kinds of Probate:
1. Post-mortem- after the testator’s death
2. Ante-mortem-during his lifetime
Ante-mortem wills, reason for this innovation:
1. It is far easier for the courts to determine the mental condition of a testator during his lifetime then
after his death
2. Fraud, intimidation and undue influence are minimized
3. If a will does not comply with the requirements prescribed by law, the same may be corrected at
once. Therefore, less number of contests
Once a will is probated during the lifetime of the testator is probated, the only question that will
remain for the courts to decide after the testator’s death will refer to the intrinsic validity of the
testamentary dispositions. (he may be acting under duress or undue influence, but these are
rare cases)

II. Finality of a probate decree
Once a decree of probate becomes final in accordance with the rules of procedure, it is res
judicata
De la Cerna vs. Potot (1964)
 It appears that on May 9, 1939, the spouses, Bernabe de la Serna and Gervasia Rebaca,
executed a joint last will and testament in the local dialect whereby they willed that "our
two parcels of land acquired during our marriage together with all improvements thereon
shall be given to Manuela Rebaca, our niece, whom we have nurtured since childhood,
because God did not give us any child in our union, Manuela Rebaca being married to
Nicolas Potot", and that "while each of the testators is yet living, he or she will continue to
enjoy the fruits of the two lands aforementioned", the said two parcels of land being
covered by Tax No. 4676 and Tax No. 6677, both situated in sitio Bucao, barrio Lugo,
municipality of Borbon, province of Cebu.
 Bernabe dela Serna died on August 30, 1939,
 The aforesaid will was submitted to probate by said Gervasia and Manuela before
the Court of First Instance of Cebu which, after due publication as required by law
and there being no opposition, heard the evidence, and, by Order of October 31,
1939; in Special Proceedings No. 499, "declara legalizado el documento Exhibit A
como el testamento y ultima voluntad del finado
 But for failure of the petitioner, Manuela R. Potot and her attorney, Manuel Potot to
appear, for the hearing of said petition, the case was dismissed on March 30, 1954
Spec. Proc. No. 1016-R, In the matter of the Probate of the Will of Gervasia Rebaca).
 The Court of First Instance ordered the petition heard and declared the testament
null and void, for being executed contrary to the prohibition of joint wills in the Civil
Code (Art. 669, Civil Code of 1889 and Art. 818, Civil Code of the Philippines);
A final judgment rendered on a petition for the probate of a will is binding upon the whole
world (Manalo vs. Paredes, 47 Phil. 938; In re Estates of Johnson, 39 Phil. 156); and public policy
and sound practice demand that at the risk of occasional errors judgment of courts should
become final at some definite date fixed by law. Interest rei publicae ut finis set litium (Dy Cay vs.
Crossfield, 38 Phil, 521, and other cases cited in 2 Moran, Comments on the Rules of Court (1963 Ed.,
p. 322).
Petitioners, as heirs and successors of the late Bernabe de la Cerna, are concluded by the 1939
decree admitting his will to probate. The contention that being void the will cannot be
validated, overlooks that the ultimate decision on Whether an act is valid or void rests with
the courts, and here they have spoken with finality when the will was probated in 1939. On
this court, the dismissal of their action for partition was correct.
But the Court of Appeals should have taken into account also, to avoid future
misunderstanding, that the probate decree in 1989 could only affect the share of the deceased
husband, Bernabe de la Cerna. It could not include the disposition of the share of the wife,
Gervasia Rebaca, who was then still alive, and over whose interest in the conjugal properties
the probate court acquired no jurisdiction, precisely because her estate could not then be in
issue. Be it remembered that prior to the new Civil Code (Aug 30, 1950), a will could not be probated
during the testator's lifetime.
It follows that the validity of the joint will, in so far as the estate of the wife was concerned,
must be, on her death, reexamined and adjudicated de novo, since a joint will is considered a
separate will of each testator. Thus regarded, the holding of the court of First Instance of Cebu that
the joint will is one prohibited by law was correct as to the participation of the deceased Gervasia
Rebaca in the properties in question, for the reasons extensively discussed in our decision in Bilbao
vs. Bilbao, 87 Phil. 144, that explained the previous holding in Macrohon vs. Saavedra, 51 Phil. 267.
Therefore, the undivided interest of Gervasia Rebaca should pass upon her death to her heirs
intestate, and not exclusively to the testamentary heir, unless some other valid will in her favor is
shown to exist, or unless she be the only heir intestate of said Gervasia.
It is unnecessary to emphasize that the fact that joint wills should be in common usage could
not make them valid when our Civil Codes consistently invalidated them, because laws are only
repealed by other subsequent laws, and no usage to the contrary may prevail against their
observance (Art. 5, Civ. Code of 1889; Art. 7, Civil Code of the Philippines of 1950).

 but on appeal by the testamentary heir, the Court of Appeals reversed, on the ground
that the decree of probate in 1939 was issued by a court of probate jurisdiction and
conclusive on the due execution of the testament. Further, the Court of Appeals
declared that:
... . It is true the law (Art. 669, old Civil Code; Art. 818, new Civil Code). prohibits the making
of a will jointly by two or more persons either for their reciprocal benefit or for the benefit
of a third person. However, this form of will has long been sanctioned by use, and the same
has continued to be used; and when, as in the present case, one such joint last will and
testament has been admitted to probate by final order of a Court of competent
jurisdiction, there seems to be no alternative except to give effect to the provisions
thereof that are not contrary to law, as was done in the case of Macrohon vs. Saavedra,
51 Phil. 267, wherein our Supreme Court gave effect to the provisions of the joint will
therein mentioned, saying, "assuming that the joint will in question is valid."
Whence this appeal by the heirs intestate of the deceased husband, Bernabe de la Cerna.
Ruling: The appealed decision correctly held that the final decree of probate, entered in 1939
by the Court of First Instance of Cebu (when the testator, Bernabe de la Cerna, died), has
conclusive effect as to his last will and testament despite the fact that even then the Civil Code
already decreed the invalidity of joint wills, whether in favor of the joint testators,
reciprocally, or in favor of a third party (Art. 669, old Civil Code). The error thus committed by
the probate court was an error of law, that should have been corrected by appeal, but which
did not affect the jurisdiction of the probate court, nor the conclusive effect of its final decision,
however erroneous.
IV. Scope of a final decree of probate
1. A final decree of probate is conclusive as to the due execution of the will; as to the will’s extrinsic
or formal validity only
Gallanosa vs. Arcangel
 The case involves the sixty-one parcels of land in Sorsogon left by Florentino
Hitosis, with an estimated value of P50,000, trial claims for damages exceeding one
million pesos. The undisputed facts are as follows:
 Florentino Hitosis executed a will in the Bicol dialect on June 19, 1938 when he was
eighty years old.
 He died on May 26, 1939 at Irosin, Sorsogon.
 A childless widower, he as survived by his brother, Leon Hitosis. His other brothers,
named Juan, Tito (Juancito), Leoncio (Aloncio) trial Apolonio and only sister, Teodora,
were all dead.
 On June 24, 1939 a petition for the probate of his will was filed in the Court of First
Instance of Sorsogon (Special Proceeding No. 3171).
 The notice of hearing was duly published.
 In that will, Florentino bequeathed his one-half share in the conjugal estate to his
second wife, Tecla Dollentas, and, should Tecla predecease him, as was the case, his
one-half share would be assigned to the spouses Pedro Gallanosa and Corazon
Grecia, the reason being that Pedro, Tecla's son by her first marriage, grew up under
the care of Florentino; he had treated Pedro as his foster child, and Pedro has rendered
services to Florentino and Tecla. Florentino likewise bequeathed his separate properties
consisting of three parcels of abaca land and parcel of riceland to his protege (sasacuyang
ataman), Adolfo Fortajada, a minor.
 Opposition to the probate of the will was registered by the testator's legal heirs,
namely, his surviving brother, Leon, trial his nephews trial nieces.
 After a hearing, wherein the oppositors did not present any evidence in support of their
opposition, Judge Pablo S. Rivera, in his decision of October 27, 1939, admitted the will
to probate and appointed Gallanosa as executor.
 On October 24, 1941, the testamentary heirs, the Gallanosa spouses and Adolfo
Fortajada, submitted a project of partition covering sixty-one parcels of land among
other things
 The project of partition was approved by Judge Doroteo Amador thus confirming the
heirs' possession of their respective shares.
 The testator's legal heirs did not appeal from the decree of probate trial from the
order of partition trial distribution.
 On February 20, 1952, Leon Hitosis trial the heirs of Florentino's deceased brothers
trial sisters instituted an action in the Court of First Instance of Sorsogon against
Pedro Gallanosa for the recovery of the said sixty-one parcels of land.
 They alleged that they, by themselves or through their predecessors-in-interest,
had been in continuous possession of those lands en concepto de dueño trial that
Gallanosa entered those lands in 1951 trial asserted ownership over the lands.
 They prayed that they be declared the owners of the lands trial that they be restored to
the possession thereof. They also claimed damages (Civil Case No. 696).
 Gallanosa moved to dismiss the above complaint for lack of cause of action trial on
the ground of bar by the prior judgment in the probate proceeding.
 Judge Anatolio C. Mañalac dismiss the complaint on the ground of res judicata
 The plaintiffs did not appeal from that order of dismissal which should have set the
matter at rest.
 But the same plaintiffs or oppositors to the probate of the will, fifteen years after the
dismissal and twenty-eight years after the probate of the will another action in the same
court against the Gallanosa spouses trial Adolfo Fortajada for the "annulment" of the will
of Florentino Hitosis trial and for the recovery of the same sixty-one parcels of land.
They prayed for the appointment of a receiver.
 As basis of their complaint, they alleged that the Gallanosa spouses, through fraud
trial deceit, caused the execution trial simulation of the document purporting to be
the last will trial testament of Florentino Hitosis.
 As already stated, that 1967 complaint, upon motion of the defendants, now the
petitioners, was dismissed by respondent Judge. The plaintiffs filed a motion for
reconsideration Respondent Judge. granted it trial set aside the order of dismissal. He
denied defendants' motion for the reconsideration of his order setting aside that
dismissal order.
The petitioners or the defendants below contend in this certiorari case that the lower court has no
jurisdiction to set aside the 1939 decree of probate trial the 1952 order of dismissal in Civil Case No.
696 trial that it acted with grave abuse of discretion in not dismissing private respondents' 1967
complaint.
ISSUE: whether, under the facts set forth above, the private respondents have a cause of action the
"annulment" of the will of Florentino Hitosis trial for the recovery of the sixty-one parcels of land
adjudicated under that will to the petitioners.
RULING: We hold that the lower court committed a grave abuse of discretion in reconsideration its
order of dismissal trial in ignoring the 1939 testamentary case trial the 1952 Civil Case No. 696
which is the same as the instant 1967 case.
A rudimentary knowledge of substantive law trial procedure is sufficient for an ordinary lawyer to
conclude upon a causal perusal of the 1967 complaint that it is baseless trial unwarranted.
What the plaintiffs seek is the "annulment" of a last will trial testament duly probated in 1939 by the
lower court itself. The proceeding is coupled with an action to recover the lands adjudicated to the
defendants by the same court in 1943 by virtue of the probated will, which action is a resuscitation
of The complaint of the same parties that the same court dismissed in 1952.
It is evident from the allegations of the complaint trial from defendants' motion to dismiss
that plaintiffs' 1967 action is barred by res judicata, a double-barrelled defense, trial by
prescription, acquisitive trial extinctive, or by what are known in the jus civile trial the jus
gentium as usucapio, longi temporis possesio and praescriptio (See Ramos vs. Ramos, L-19872,
December 3, 1974, 61 SCRA 284).
Our procedural law does not sanction an action for the "annulment" of a will. In order that a will
may take effect, it has to be probated, legalized or allowed in the proper testamentary proceeding.
The probate of the will is mandatory (Art. 838, Civil Code; sec. 1, Rule 75, formerly sec. 1, Rule 76,
Rules of Court; Guevara vs. Guevara, 74 Phil. 479; Guevara vs. Guevara, 98 Phil. 249).
The testamentary proceeding is a special proceeding for the settlement of the testator's estate. A
special proceeding is distinct trial different from an ordinary action (Secs. 1 trial 2, Rule 2 trial sec.
1, Rule 72, Rules of Court).
We say that the defense of res judicata, as a ground for the dismissal of plaintiffs' 1967
complaint, is a two-pronged defense because (1) the 1939 trial 1943 decrees of probate trial
distribution in Special Proceeding No. 3171 trial (2) the 1952 order of dismissal in Civil Case
No. 696 of the lower court constitute bars by former judgment, Rule 39 of the Rules of Court
provides:
SEC. 49. Effect of judgments. — The effect of a judgment or final order rendered
by a court or judge of the Philippines, having jurisdiction to pronounce the
judgment or order, may be as follows:
(a) In case of a judgment or order against a specific thing, or in respect to the
probate of a will or the administration of the estate of a deceased person, or in
respect to the personal, political, or legal condition or status of a particular
person or his relationship to another, the judgment or order is conclusive upon
the title to the thing the will or administration, or the condition, status or
relationship of the person; however, the probate of a will or granting of letters
of administration shall only be prima facie evidence of the death of the testator
or intestate;
(b) In other cases the judgment or order is, with respect to the matter directly
adjudged or as to any other matter that could have been raised in relation
 thereto, conclusive between the parties trial their successors in interest by title After the period for seeking relief from a final order or judgment under Rule 38 of the Rules of Court
subsequent to the commencement of the action or special proceeding, litigating has expired, a final judgment or order can be set aside only on the grounds of
of the same thing trial under the same title trial in the same capacity; (a) lack of jurisdiction or lack of due process of law or
(c) In any other litigation between the same parties or their successors in (b) that the judgment was obtained by means of extrinsic or collateral fraud.
interest, that only is deemed to have been adjudged in a former judgment In the latter case, the period for annulling the judgment is four years from the discovery of the fraud
which appears upon its face to have been so adjudged, or which was actually (2 Moran's Comments on the Rules of Court, 1970 Edition, pp. 245-246; Mauricio vs. Villanueva, 106
trial necessarily included therein or necessary thereto. Phil. 1159).
The 1939 decree of probate is conclusive as to the due execution or formal validity of the will To hurdle over the obstacle of prescription, the trial court, naively adopting the theory of
(Sec. 625, Act 190, sec. 1, Rule 76, now sec. 1, Rule 75, Rules of Court; Last par. of art. 838, Civil plaintiffs' counsel, held that the action for the recovery of the lands had not prescribed because the
Code). rule in article 1410 of the Civil Code, that "the action or defense for the declaration of the
That means that the testator was : inexistence of a contract does not prescribe", applies to wills.
1. of sound trial disposing mind at the time when he executed the will That ruling is a glaring error. Article 1410 cannot possibly apply to last wills trial testaments. The
2. was not acting under duress, menace, fraud, or undue influence; trial court trial plaintiffs' counsel relied upon the case of Dingle vs. Guillermo, 48 0. G. 4410,
3. that the will was signed by him in the presence of the required number of witnesses, and allegedly decided by this Court, which cited the ruling in Tipton vs. Velasco, 6 Phil. 67, that mere
4. That the will is genuine trial is not a forgery. Accordingly, these facts cannot again be lapse of time cannot give efficacy to void contracts, a ruling elevated to the category of a codal
questioned in a subsequent proceeding, not even in a criminal action for the forgery of the will. (3 provision in article 1410. The Dingle case was decided by the Court of Appeals. Even the trial court
Moran's Comments on the Rules of Court, 1970 Edition, p. 395; Manahan vs. Manahan, 58 Phil. 448). did not take pains to verify the misrepresentation of plaintiffs' counsel that the Dinglecase was
After the finality of the allowance of a will, the issue as to the voluntariness of its execution decided by this Court. An elementary knowledge of civil law could have alerted the trial court to the
cannot be raised anymore (Santos vs. De Buenaventura, L-22797, September 22, 1966, 18 SCRA egregious error of plaintiffs' counsel in arguing that article 1410 applies to wills.
47). WHEREFORE, the lower court's orders of May 3 trial June 17, 1968 are reversed trial set aside trial
In Austria vs. Ventenilla, 21 Phil. 180, a "petition for annulment of a will" was not entertained after its order of dismissal dated January 10, 1968 is affirmed. Costs against the private respondents.
the decree of probate had become final. That case is summarized as follows:
Wills; Probate; Alledged Fraudulent Will; Appeal.— V. died. His will was
admitted to probate without objection. No appeal was taken from said order. It
was admitted that due trial legal notice had been given to all parties. Fifteen
months after the date of said order, a motion was presented in the lower court
to have said will declared null and void, for the reason that fraud had been
practised upon the deceased in the making of his will.
Held: That under section 625 of Act No. 190, the only time given parties who
are displeased with the order admitting to probate a will, for an appeal is the
time given for appeals in ordinary actions; but without deciding whether or not
an order admitting a will to probate will be opened for fraud, after the time
allowed for an appeal has expired, when no appeal is taken from an order
probating a will, the heirs can not, in subsequent litigation in the same
proceedings, raise questions relating to its due execution. The probate of a will
is conclusive as to its due execution trial as to the testamentary capacity of The
testator. (See Austria vs. Heirs of Ventenilla. 99 Phil. 1069).
On the other hand, the 1943 decree of adjudication rendered by the trial court in the testate
proceeding for the settlement of the estate of Florentino Hitosis, having been rendered in a
proceeding in rem, is under the abovequoted section 49(a), binding upon the whole world (Manalo
vs. Paredes, 47 Phil. 938; In re Estate of Johnson, 39 Phil. 156; De la Cerna vs. Potot, 120 Phil. 1361,
1364; McMaster vs. Hentry Reissmann & Co., 68 Phil. 142).
It is not only the 1939 probate proceeding that can be interposed as res judicata with respect
to private respondents' complaint, The 1952 order of dismissal rendered by Judge Mañalac
in Civil Case No. 696, a judgment in personam was an adjudication on the merits (Sec. 4, Rule
30, old Rules of Court). It constitutes a bar by former judgment under the aforequoted section
49(b) (Anticamara vs. Ong, L-29689. April 14, 1978).
The plaintiffs or private respondents did not even bother to ask for the annulment of the
testamentary proceeding and the proceeding in Civil Case No. 696. Obviously, they realized
that the final adjudications in those cases have the binding force of res judicata and that
there is no ground, nor is it timely, to ask for the nullification of the final orders trial
judgments in those two cases.
It is a fundamental concept in the organization of every jural system, a principle of public policy,
that, at the risk of occasional errors, judgments of courts should become final at some
definite date fixed by law. Interest rei publicae ut finis sit litum. "The very object for which the
courts were constituted was to put an end to controversies." (Dy Cay vs. Crossfield and O'Brien,
38 Phil. 521: Peñalosa vs. Tuason, 22 Phil, 303; De la Cerna vs. Potot, supra).
Gallanosa enumerates what are covered by the term formal validity and therefore are conclusively
setteled by a final decree of probate:
i. that the testator was of sound and disposing mind
ii. that his consent was not vitiated
iii. that the will was signed by him in the presence of the required number of witnesses
iv. the will is genuine
3- that all the formal requirements of the law have been complied with such as:
FORMAL REQUIREMENTS:
804-808; 820-821
Art. 804. Every will must be in writing and executed in a language or dialect known to the testator.
Art. 805. Every will, other than a holographic will, must be subscribed at the end thereof by the
testator himself or by the testator’s name written by some other person in his presence, and by his
express direction, and attested and subscribed by three or more credible witnesses in the presence
of the testator and of one another. The testator or the person requested by him to write his name
and the instrumental witnesses of the will, shall also sign, as aforesaid, each and every page thereof,
except the last, on the left margin, and all the pages shall be numbered correlatively in letters placed
on the upper part of each page. The attestation shall state the number of pages used upon which the
will is written, and the fact that the testator signed the will and every page thereof, or caused some
other person to write his name, under his express direction, in the presence of the instrumental
witnesses, and that the latter witnessed and signed the will and all the pages thereof in the presence
of the testator and of one another. If the attestation clause is in a language not known to the
witnesses, it shall be interpreted to them.
Art. 806. Every will must be acknowledged before a notary public by the testator and the witnesses.
The notary public shall not be required to retain a copy of the will, or file another with the office of
the Clerk of Court.
Art. 807. If the testator be deaf, or a deaf-mute, he must personally read the will, if able to do so;
otherwise, he shall designate two persons to read it and communicate to him, in some practicable
manner, the contents thereof.
Art. 808. If the testator is blind, the will shall be read to him twice; once, by one of the subscribing
witnesses, and again, by the notary public before whom the will is acknowledged.
Art. 809. In the absence of bad faith, forgery, or fraud, or undue and improper pressure and
influence, defects and imperfections in the form of attestation or in the language used therein shall
not render the will invalid if it is proved that the will was in fact executed and attested in substantial
compliance with all the requirements of article 805.
Witnesses to Wills
Art. 820. Any person of sound mind and of the age of eighteen years or more, and not bind, deaf or
dumb, and able to read and write, may be a witness to the execution of a will mentioned in Article
805 of this Code. (n)
Art. 821. The following are disqualified from being witnesses to a will:
(1) Any person not domiciled in the Philippines;
(2) Those who have been convicted of falsification of a document, perjury or false testimony. (n)
Holographic Wills Art 804 and 810-814
Art. 804. Every will must be in writing and executed in a language or dialect known to the
testator. (n)
Art. 810. A person may execute a holographic will which must be entirely written, dated, and signed
by the hand of the testator himself. It is subject to no other form, and may be made in or out of the
Philippines, and need not be witnessed.(678, 688a)
Art. 811. In the probate of a holographic will, it shall be necessary that at least one witness who
knows the handwriting and signature of the testator explicitly declare that the will and the signature
are in the handwriting of the testator. If the will is contested, at least three of such witnesses shall be
required.
In the absence of any competent witness referred to in the preceding paragraph, and if the court
deem it necessary, expert testimony may be resorted to. (619a)
Art. 812. In holographic wills, the dispositions of the testator written below his signature must be
dated and signed by him in order to make them valid as testamentary dispositions. (n)
Art. 813. When a number of dispositions appearing in a holographic will are signed without being
dated, and the last disposition has a signature and a date, such date validates the dispositions
preceding it, whatever be the time of prior dispositions. (n)
Art. 814. In case of any insertion, cancellation, erasure or alteration in a holographic will, the
testator must authenticate the same by his full signature. (n)
AND ART 818-819
Art. 818. Two or more persons cannot make a will jointly, or in the same instrument, either for their
reciprocal benefit or for the benefit of a third person. (669)
Art. 819. Wills, prohibited by the preceding article, executed by Filipinos in a foreign country shall
not be valid in the Philippines, even though authorized by the laws of the country where they may
have been executed. (733a)
Doroteo vs CA also enumerates what formal validity encompasses:
1. whether the will submitted is indded the last will and testament of the decendent
2. compliance with the prescribed formalities in the execution of wills
3. testamentary capacity
Art. 796. All persons who are not expressly prohibited by law may make a will. (662)
Art. 797. Persons of either sex under eighteen years of age cannot make a will. (n)
Art. 798. In order to make a will it is essential that the testator be of sound mind at the time of its
execution. (n)
Art. 799. To be of sound mind, it is not necessary that the testator be in full possession of all his
reasoning faculties, or that his mind be wholly unbroken, unimpaired, or unshattered by disease,
injury or other cause.
It shall be sufficient if the testator was able at the time of making the will to know the nature of the
estate to be disposed of, the proper objects of his bounty, and the character of the testamentary
act. (n)
Art. 800. The law presumes that every person is of sound mind, in the absence of proof to the
contrary.
4. due execution
Due execution means:
1. the testator’s sound and disposing mind
2. freedom from vitiating factors (duress, menace and undue influence)
3. will genuine not forgery
4. proper testamentary age
5. the testator not expressly prohibited from making a will.
Baltazar vs. Laxa- Extrinsic validity pertains to whether the testator, being of sound mind, freely
executed the will in accordance with the requisites prescribed by law.
Exception to the rule: A decree of probate does not concern itself with the question of intrinsic validity
and the probate court should not pass upon that issue
HOWEVER THIS IS NOT ABSOLUTE
The probate of a will might become an idle ceremony if on its face it appears that it is intrinsically
void.
Nepomuceno vs. CA, 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.
In Balanay vs Martinez- save in extreme case where the will on its face is intrinsically void, it is the
probate court’s duty to pass first upon the formal validity of the will.

Nepomuceno vs. CA 1985
 Martin Jugo died on July 16, 1974 in Malabon, Rizal.
He left a last Will and Testament duly signed by him at the end of the Will on page three and on the
left margin of pages 1, 2 and 4 thereof in the presence of Celestina Alejandro, Myrna C. Cortez, and
Leandro Leano, who in turn, affixed their signatures below the attestation clause and on the left
margin of pages 1, 2 and 4 of the Will in the presence of the testator and of each other and the
Notary Public.
 The Will was acknowledged before the Notary Public Romeo Escareal by the testator and
his three attesting witnesses.
 In the said Will, the testator named and appointed herein petitioner Sofia J. Nepomuceno
as his sole and only executor of his estate.
 It is clearly stated in the Will that the testator was legally married to a certain Rufina
Gomez by whom he had two legitimate children, Oscar and Carmelita, but since 1952, he
had been estranged from his lawfully wedded wife and had been living with petitioner as
husband and wife.
 In fact, on December 5, 1952, the testator Martin Jugo and the petitioner herein, Sofia
J. Nepomuceno were married in Victoria, Tarlac before the Justice of the Peace. The
testator devised to his forced heirs, namely, his legal wife Rufina Gomez and his
children Oscar and Carmelita his entire estate and the free portion thereof to
herein petitioner.
 On August 21, 1974, the petitioner filed a petition for the probate of the last Will and
Testament of the deceased Martin Jugo and asked for the issuance to her of letters
testamentary.
 The legal wife of the testator, Rufina Gomez and her children filed an opposition
alleging inter alia that the execution of the Will was procured by undue and
improper influence on the part of the petitioner; that at the time of the execution of the
Will, the testator was already very sick and that petitioner having admitted her living
in concubinage with the testator, she is wanting in integrity and thus, letters
testamentary should not be issued to her.
 The lower court denied the probate of the Will on the ground that as the testator
admitted in his Will to cohabiting with the petitioner from December 1952 until his death
on July 16, 1974, the Will's admission to probate will be an Idle exercise because on
the face of the Will, the invalidity of its intrinsic provisions is evident.
 The petitioner appealed to the respondent-appellate court.
 The respondent court set aside the decision of the Court of First Instance of Rizal denying
the probate of the will. The respondent court declared the Will to be valid except that
the devise in favor of the petitioner is null and void pursuant to Article 739 in
relation with Article 1028 of the Civil Code of the Philippines. The dispositive portion
of the decision reads:
Issue: Whether or not the respondent court acted in excess of its jurisdiction when after declaring
the last Will and Testament of the deceased Martin Jugo validly drawn, it went on to pass upon the
intrinsic validity of the testamentary provision in favor of herein petitioner.
The petitioner submits that the validity of the testamentary provision in her favor cannot be
passed upon and decided in the probate proceedings but in some other proceedings because
the only purpose of the probate of a Will is to establish conclusively as against everyone that
a Will was executed with the formalities required by law and that the testator has the mental
capacity to execute the same. The petitioner further contends that even if the provisions of
paragraph 1 of Article 739 of the Civil Code of the Philippines were applicable, the declaration of its
nullity could only be made by the proper court in a separate action brought by the legal wife for the
specific purpose of obtaining a declaration of the nullity of the testamentary provision in the Will in
favor of the person with whom the testator was allegedly guilty of adultery or concubinage.
The respondents on the other hand contend that the fact that the last Will and Testament itself
expressly admits indubitably on its face the meretricious relationship between the testator and the
petitioner and the fact that petitioner herself initiated the presentation of evidence on her alleged
ignorance of the true civil status of the testator, which led private respondents to present contrary
evidence, merits the application of the doctrine enunciated in Nuguid v. Felix Nuguid, et al. (17 SCRA
449) and Felix Balanay, Jr. v. Hon. Antonio Martinez, et al. (G.R. No. L- 39247, June 27, 1975).
Respondents also submit that the admission of the testator of the illicit relationship between
him and the petitioner put in issue the legality of the devise.
Ruling: We agree with the respondents.
The respondent court acted within its jurisdiction when after declaring the Will to be validly drawn,
it went on to pass upon the intrinsic validity of the Will and declared the devise in favor of
the petitioner null and void.
The general rule is that in probate proceedings, the court's area of inquiry is limited to an
examination and resolution of the extrinsic validity of the Will.
The rule, however, is not inflexible and absolute. Given exceptional circumstances, the probate court
is not powerless to do what the situation constrains it to do and pass upon certain provisions of the
Will.
In Nuguid v. Nuguid (17 SCRA 449) cited by the trial court, the testator instituted the petitioner as
universal heir and completely preterited her surviving forced heirs. A will of this nature, no matter
how valid it may appear extrinsically, would be null and void. Separate or latter proceedings to
determine the intrinsic validity of the testamentary provisions would be superfluous.
Even before establishing the formal validity of the will, the Court in Balanay .Jr. v. Martinez (64
SCRA 452) passed upon the validity of its intrinsic provisions.
Invoking "practical considerations", we stated:
The basic issue is whether the probate court erred in passing upon the intrinsic
validity of the will, before ruling on its allowance or formal validity, and in
declaring it void.
We are of the opinion that in view of certain unusual provisions of the will,
which are of dubious legality, and because of the motion to withdraw the
petition for probate (which the lower court assumed to have been filed with
the petitioner's authorization) the trial court acted correctly in passing upon
the will's intrinsic validity even before its formal validity had been established.
The probate of a will might become an Idle ceremony if on its face it
appears to be intrinsically void. Where practical considerations demand
that the intrinsic validity of the will be passed upon, even before it is
probated, the court should meet the issue (Nuguid v. Nuguid, 64 O.G. 1527,
17 SCRA 449. Compare with Sumilang vs. Ramagosa L-23135, December 26,
1967, 21 SCRA 1369; Cacho v. Udan L-19996, April 30, 1965, 13 SCRA 693).
There appears to be no more dispute at this time over the extrinsic validity of the Will. Both
parties are agreed that the Will of Martin Jugo was executed with all the formalities required
by law and that the testator had the mental capacity to execute his Will. The petitioner states
that she completely agrees with the respondent court when in resolving the question of
whether or not the probate court correctly denied the probate of Martin Jugo's last Will and
Testament, it ruled:
This being so, the will is declared validly drawn. (Page 4, Decision, Annex A
of Petition.)
On the other hand the respondents pray for the affirmance of the Court of Appeals' decision in toto.
The only issue, therefore, is the jurisdiction of the respondent court to declare the
testamentary provision in favor of the petitioner as null and void.
We sustain the respondent court's jurisdiction. As stated in Nuguid v. Nuguid, (supra):
We pause to reflect. If the case were to be remanded for probate of the will,
nothing will be gained. On the contrary, this litigation will be protracted. And
for aught that appears in the record, in the record,
In the event of probate or if the court rejects the will, probability exists
that the case will come up once again before us on the same issue of the
intrinsic validity or nullity of the will. Result, waste of time, effort,
expense, plus added anxiety.
These are the practical considerations that induce us to a belief that we
might as well meet head-on the issue of the validity of the provisions of
the will in question. (Section 2, Rule 1, Rules of Court. Case, et al. v. Jugo, et al.,
 77 Phil. 517, 522). After all, there exists a justiciable controversy crying for
solution.
We see no useful purpose that would be served if we remand the nullified provision to the
proper court in a separate action for that purpose simply because, in the probate of a will, the
court does not ordinarily look into the intrinsic validity of its provisions.
Article 739 of the Civil Code provides:
The following donations shall be void:
(1) Those made between persons who were guilty of adultery or concubinage
at the time of the donation;
Article 1028 of the Civil Code provides:
The prohibitions mentioned in Article 739, concerning donations inter
vivos shall apply to testamentary provisions.
In Article III of the disputed Will, executed on August 15, 1968, or almost six years before the
testator's death on July 16, 1974, Martin Jugo stated that respondent Rufina Gomez was his
legal wife from whom he had been estranged "for so many years." He also declared that
respondents Carmelita Jugo and Oscar Jugo were his legitimate children. In Article IV, he
stated that he had been living as man and wife with the petitioner since 1952. Testator Jugo
declared that the petitioner was entitled to his love and affection. He stated that Nepomuceno
represented Jugo as her own husband but "in truth and in fact, as well as in the eyes of the
law, I could not bind her to me in the holy bonds of matrimony because of my
aforementioned previous marriage.
There is no question from the records about the fact of a prior existing marriage when Martin Jugo
executed his Will. There is also no dispute that the petitioner and Mr. Jugo lived together in an
ostensible marital relationship for 22 years until his death.
It is also a fact that on December 2, 1952, Martin Jugo and Sofia J. Nepomuceno contracted a
marriage before the Justice of the Peace of Victoria, Tarlac. The man was then 51 years old while the
woman was 48. Nepomuceno now contends that she acted in good faith for 22 years in the belief
that she was legally married to the testator.
The records do not sustain a finding of innocence or good faith. As argued by the private
respondents:
First. The last will and testament itself expressly admits indubitably on its face
the meretricious relationship between the testator and petitioner, the devisee.
Second. Petitioner herself initiated the presentation of evidence on her alleged
ignorance of the true civil status of the testator, which led private respondents
to present contrary evidence.
In short, the parties themselves dueled on the intrinsic validity of the
legacy given in the will to petitioner by the deceased testator at the start
of the proceedings.
Whether or not petitioner knew that testator Martin Jugo, the man he had
lived with as man and wife, as already married, was an important and
specific issue brought by the parties before the trial court, and passed
upon by the Court of Appeals.
Instead of limiting herself to proving the extrinsic validity of the will, it
was petitioner who opted to present evidence on her alleged good faith in
marrying the testator. (Testimony of Petitioner, TSN of August 1, 1982, pp.
56-57 and pp. 62-64).
Moreover, the prohibition in Article 739 of the Civil Code is against the making of a donation
between persons who are living in adultery or concubinage. It is the donation which becomes
void. The giver cannot give even assuming that the recipient may receive. The very wordings of
the Will invalidate the legacy because the testator admitted he was disposing the properties
to a person with whom he had been living in concubinage.
WHEREFORE, the petition is DISMISSED for lack of merit. The decision of the Court of Appeals, now
Intermediate Appellate Court, is AFFIRMED. No costs.
Art 854
GR: The falsity of the stated cause for the testamentary institution does not affect the validity
of the institution
Reason: Testamentary dispositions are ultimately based on liberality
Exception: The falsity of the stated cause for institution will set aside the institution, if certain
factors are present.
Austria vs. Reyes (1970)
Facts:
 Basilia Austria vda. de Cruz filed with the Court of First Instance of Rizal (Special
Proceedings 2457) a petition for probate, ante mortem, of her last will and testament.
 The probate was opposed by the present petitioners Ruben Austria, Consuelo Austria-
Benta and Lauro Austria Mozo, and still others who, like the petitioner, are nephews and
nieces of Basilia.
 This opposition was, however, dismissed and the probate of the will allowed after due
hearing.
The bulk of the estate of Basilia, admittedly, was destined under the will to pass on to the
respondents Perfecto Cruz, Benita Cruz-Meñez, Isagani Cruz, Alberto Cruz, and Luz Cruz-
Salonga, all of whom had been assumed and declared by Basilia as her own legally adopted
children.
 More than two years after her will was allowed to probate, Basilia died.
 The respondent Perfecto Cruz was appointed executor without bond by the same court in
accordance with the provisions of the decedent's will, notwithstanding the blocking
attempt pursued by the petitioner Ruben Austria.
The present petitioners filed in the same proceedings a petition in intervention for partition alleging
in substance that they are the nearest of kin of Basilia, and that the five respondents Perfecto
Cruz, et al., had not in fact been adopted by the decedent in accordance with law, in effect
rendering these respondents mere strangers to the decedent and without any right to
succeed as heirs.
The contending sides debated the matter of authenticity or lack of it of the several adoption papers
produced and presented by the respondents.
The complaint in intervention filed in the lower court assails the legality of the tie which the
respondent Perfecto Cruz and his brothers and sisters claim to have with the decedent. The
lower court had, however, assumed, by its orders in question, that the validity or invalidity of
the adoption is not material nor decisive on the efficacy of the institution of heirs; for, even if
the adoption in question were spurious, the respondents Perfecto Cruz, et al., will
nevertheless succeed not as compulsory heirs but as testamentary heirs instituted in
Basilia's will. This ruling apparently finds support in article, 842 of the Civil Code which reads:
One who has no compulsory heirs may dispose of by will all his estate or any
part of it in favor of any person having capacity to succeed.
One who has compulsory heirs may dispose of his estate provided he does not
contravene the provisions of this Code with regard to the legitime of said heirs.
The lower court must have assumed that since the petitioners nephews and niece are not
compulsory heirs, they do not possess that interest which can be prejudiced by a free-
wheeling testamentary disposition. The petitioners' interest is confined to properties, if any,
that have not been disposed of in the will, for to that extent intestate succession can take
place and the question of the veracity of the adoption acquires relevance.
The petitioners nephews and niece, upon the other hand, insist that the entire estate should descend
to them by intestacy by reason of the intrinsic nullity of the institution of heirs embodied in the
decedent's will. They have thus raised squarely the issue of whether or not such institution of heirs
would retain efficacy in the event there exists proof that the adoption of the same heirs by the
decedent is false.
The petitioners cite, as the controlling rule, article 850 of the Civil Code which reads:
 The statement of a false cause for the institution of an heir shall be considered
as not written, unless it appears from the will that the testator would not have
made such institution if he had known the falsity of such cause.
Coming closer to the center of the controversy, the petitioners have called the attention of the lower
court and this Court to the following pertinent portions of the will of the deceased which recite:
The tenor of the language used, the petitioners argue, gives rise to the inference that the late
Basilia was deceived into believing that she was legally bound to bequeath one-half of her
entire estate to the respondents Perfecto Cruz, et al. as the latter's legitime. The petitioners
further contend that had the deceased known the adoption to be spurious, she would not
have instituted the respondents at all — the basis of the institution being solely her belief
that they were compulsory heirs. Proof therefore of the falsity of the adoption would cause a
nullity of the institution of heirs and the opening of the estate wide to intestacy.
Issue: Did the lower court then abuse its discretion or act in violation of the rights of the parties in
barring the petitioners nephews and niece from registering their claim even to properties
adjudicated by the decedent in her will?
Ruling:
Before the institution of heirs may be annulled under article 850 of the Civil Code, the following
requisites must concur: First, the cause for the institution of heirs must be stated in the will; second,
the cause must be shown to be false; and third, it must appear from the face of the will that the
testator would not have made such institution if he had known the falsity of the cause.
The petitioners would have us imply, from the use of the terms, "sapilitang tagapagmana"
(compulsory heirs) and "sapilitang mana" (legitime), that the impelling reason or cause for the
institution of the respondents was the testatrix's belief that under the law she could not do
otherwise. If this were indeed what prompted the testatrix in instituting the respondents, she did
not make it known in her will. Surely if she was aware that succession to the legitime takes place by
operation of law, independent of her own wishes, she would not have found it convenient to name
her supposed compulsory heirs to their legitimes. Her express adoption of the rules on legitimes
should very well indicate her complete agreement with that statutory scheme. But even this,
like the petitioners' own proposition, is highly speculative of what was in the mind of the
testatrix when she executed her will. One fact prevails, however, and it is that the decedent's
will does not state in a specific or unequivocal manner the cause for such institution of heirs.
We cannot annul the same on the basis of guesswork or uncertain implications.
And even if we should accept the petitioners' theory that the decedent instituted the respondents
Perfecto Cruz, et al. solely because she believed that the law commanded her to do so, on the false
assumption that her adoption of these respondents was valid, still such institution must stand.
Article 850 of the Civil Code, quoted above, is a positive injunction to ignore whatever false
cause the testator may have written in his will for the institution of heirs. Such institution
may be annulled only when one is satisfied, after an examination of the will, that the testator
clearly would not have made the institution if he had known the cause for it to be false. Now,
would the late Basilia have caused the revocation of the institution of heirs if she had known that
she was mistaken in treating these heirs as her legally adopted children? Or would she have
instituted them nonetheless?
The decedent's will, which alone should provide the answer, is mute on this point or at best is vague
and uncertain. The phrases, "mga sapilitang tagapagmana" and "sapilitang mana," were borrowed
from the language of the law on succession and were used, respectively, to describe the class of heirs
instituted and the abstract object of the inheritance. They offer no absolute indication that the
decedent would have willed her estate other than the way she did if she had known that she
was not bound by law to make allowance for legitimes. Her disposition of the free portion of
her estate (libre disposicion) which largely favored the respondent Perfecto Cruz, the latter's
children, and the children of the respondent Benita Cruz, shows a perceptible inclination on
her part to give to the respondents more than what she thought the law enjoined her to give
to them. Compare this with the relatively small devise of land which the decedent had left for her
blood relatives, including the petitioners Consuelo Austria-Benta and Lauro Mozo and the children
of the petitioner Ruben Austria. Were we to exclude the respondents Perfecto Cruz, et al. from the
inheritance, then the petitioners and the other nephews and nieces would succeed to the bulk of the
testate by intestacy — a result which would subvert the clear wishes of the decedent.
Whatever doubts one entertains in his mind should be swept away by these explicit
injunctions in the Civil Code: "The words of a will are to receive an interpretation which will
give to every expression some effect, rather than one which will render any of the
expressions inoperative; and of two modes of interpreting a will, that is to be preferred
which will prevent intestacy." 1
Testacy is favored and doubts are resolved on its side, especially where the will evinces an
intention on the part of the testator to dispose of practically his whole estate,2 as was done in
this case. Moreover, so compelling is the principle that intestacy should be avoided and the
wishes of the testator allowed to prevail, that we could even vary the language of the will for
the purpose of giving it effect.3
A probate court has found, by final judgment, that the late Basilia Austria Vda. de Cruz was
possessed of testamentary capacity and her last will executed free from falsification, fraud,
trickery or undue influence. In this situation, it becomes our duty to give full expression to
her will.4
Reyes v. BarrettoDatu
(1967)
Facts: Testator instituted as heirs his two daughters, Salud and Milagros. Later, it turned out that
Salud was notthe testator’s daughter by his wife. Milagros claimed that Salud not entitled to any
share in her father’s estate.
Held: That while the share assigned to Salud impinged on the legitime of Milagros, Salud did not for
that reasoncease to be a testamentary heir. That there was no preterition or total omission of a
forced heir (Milagros)despite the fact that Milagros was allotted in her father’s will a share smaller
than her legitime. That such allotmentdid not invalidate the institution of heir (Salud).
Aznar v. Duncan (1966)
Facts: Testator instituted as heir his acknowledged natural daughter, Lucy Duncan. Helen
Garcia, another natural daughter of testator who however was not acknowledged, complained
that she had been preterited. Helen Garcia was given only a legacy of 3,600 pesos.
Held: That there was no preterition because Helen Garcia, a compulsory heir, was not entirely
omitted from the inheritance as in fact she received a legacy. That Helen Garcia’s remedy is to
have her legitime satisfied.
Heirs of Ureta v. Heirs of Ureta (2011)
Facts: Heirs of Policronio argued that they had been preterited because they were deprived of a
share in the estate of their late father.
Held: That preterition is a concept of testamentary succession and that where decedent leaves
no will, as in this case, there can be no preterition. There is preteriton if a compulsory heir
received nothing from the testator by way of:
‐ testamentary succession
‐ legacy or devise
‐ donation inter vivos
‐ intestacy
What constitutes preterition is not omission (in the sense of not being mention) in the will but
being completely left out of the inheritance
Seangio v. Reyes (2006)
Facts: Testator executed a holographic will wherein he disinherited one of his compulsory
heirs (Alfredo, testator’s son). Virginia’s name mentioned in the
holographic will.
Held: That there was no preterition because it was testator’s intention to bequeath his estate to
all his compulsory heirs except Alfredo. That testator did notinstitute an heir to the exclusion
of other compulsory heirs. That mere mention of Virginia’s name did not I nstitute her as
universal heir but a mere witness to Alfredo’s maltreatment of testator.
Who are included within the terms of ART. 854
‐ a compulsory heir in the direct line, “whether living at the time of the execution of the will or
born after the death of the testator”
o but quasi‐posthumous children also included
those born after the execution of the will but before the testator’s death
Compulsory heirs in the direct line—
‐ children or descendants*
o including adopted children (Acain v.
IAC [1987])
‐ parents or ascendants (in default of children or
descendants)*
*legitimate or illegitimate; the law does not distinguish
(Manresa)
Surviving spouse is NOT a compulsory heir in the
direct line
‐ while a compulsory heir, he is NOT in the direct
line (Balanay v. Martinez, Acain v. IAC)
‐ meaning of direct line (ART. 964, par. 2)