DIONISIO FERNANDEZ, EUSEBIO REYES and LUISA REYES, petitioners, vs. ISMAELA DIMAGIBA, respondent. MARIANO REYES, CESAR REYES, LEONOR REYES and PACIENCIA REYES, petitioners, vs. ISMAELA DIMAGIBA, respondent. REYES, J.B.L., Actg. C.J.: The heirs intestate of the late Benedicta de los Reyes have petitioned for a review of the decision of the Court of Appeals (in CA-G. R. No. 31221-R) affirming that of the Court of First Instance of Bulacan, in Special Proceeding No. 831 of said Court, admitting to probate the alleged last will and testament of the deceased, and overruling the opposition to the probate. It appears from the record that on January 19, 1955, Ismaela Dimagiba, now respondent, submitted to the Court of First Instance a petition for the probate of the purported will of the late Benedicta de los Reyes, executed on October 22, 1930, and annexed to the petition. The will instituted the petitioner as the sole heir of the estate of the deceased. The petition was set for hearing, and in due time, Dionisio Fernandez, Eusebio Reyes and Luisa Reyes and one month later, Mariano, Cesar, Leonor and Paciencia, all surnamed Reyes, all claiming to be heirs intestate of the decedent, filed oppositions to the probate asked. Grounds advanced for the opposition were forgery, vices of consent of the testatrix, estoppel by laches of the proponent and revocation of the will by two deeds of conveyance of the major portion of the estate made by the testatrix in favor of the proponent in 1943 and 1944, but which conveyances were finally set aside by this Supreme Court in a decision promulgated on August 3, 1954, in cases G.R. Nos. L-5618 and L-5620 (unpublished). After trial on the formulated issues, the Court of First Instance, by decision of June 20, 1958, found that the will was genuine and properly executed; but deferred resolution on the questions of estoppel and revocation "until such time when we shall pass upon the intrinsic validity of the provisions of the will or when the question of adjudication of the properties is opportunely presented." Oppositors Fernandez and Reyes petitioned for reconsideration, and/or new trial, insisting that the issues of estoppel and revocation be considered and resolved; whereupon, on July 27, 1959, the Court overruled the claim that proponent was in estoppel to ask for the probate of the will, but "reserving unto the parties the right to raise the issue of implied revocation at the opportune time." On January 11, 1960, the Court of First Instance appointed Ricardo Cruz as administrator for the sole purpose of submitting an inventory of the estate, and this was done on February 9, 1960. On February 27, 1962, after receiving further evidence on the issue whether the execution by the testatrix of deeds of sale of the larger portion of her estate in favor of the testamentary heir, made in 1943 and 1944, subsequent to the execution of her 1930 testament, had revoked the latter under Article 957(2) of the 1950 Civil Code (Art. 869 of the Civil Code of 1889), the trial Court resolved against the oppositors and held the will of the late Benedicta de los Reyes "unaffected and unrevoked by the deeds of sale." Whereupon, the oppositors elevated the case to the Court of Appeals. The appellate Court held that the decree of June 20, 1958, admitting the will to probate, had become final for lack of opportune appeal; that the same was appealable independently of the issue of implied revocation; that contrary to the claim of oppositors-appellants, there had been no legal revocation by the execution of the 1943 and 1944 deeds of sale, because the latter had been made in favor of the legatee herself, and affirmed the decision of the Court of First Instance. Oppositors then appealed to this Court. In this instance, both sets of oppositors-appellants pose three main issues: (a) whether or not the decree of the Court of First Instance allowing the will to probate had become final for lack of appeal; (b) whether or not the order of the Court of origin dated July 27, 1959, overruling the estoppel invoked by oppositors-appellants had likewise become final; and (c) whether or not the 1930 will of Benedicta de los Reyes had been impliedly revoked by her execution of deeds of conveyance in favor of the proponent on March 26, 1943 and April 3, 1944. As to the first point, oppositors-appellants contend that the order allowing the will to probate should be considered interlocutory, because it fails to resolve the issues of estoppel and revocation propounded in their opposition. We agree with the Court of Appeals that the appellant's stand is untenable. It is elementary that a probate decree finally and definitively settles all questions concerning capacity of the testator and the proper execution and witnessing of his last will and testament, irrespective of whether its provisions are valid and enforceable or otherwise. (Montaano vs. Suesa, 14 Phil. 676; Mercado vs. Santos, 66 Phil. 215; Trillana vs. Crisostomo, 89 Phil. 710). As such, the probate order is final and appealable; and it is so recognized by express provisions of Section 1 of Rule 109, that specifically prescribes that "any interested person may appeal in special proceedings from an order or judgment . . . where such order or judgment: (a) allows or disallows a will." Appellants argue that they were entitled to await the trial Court's resolution on the other grounds of their opposition before taking an appeal, as otherwise there would be a multiplicity of recourses to the higher Courts. This contention is without weight, since Rule 109, section 1, expressly enumerates six different instances when appeal may be taken in special proceedings. There being no controversy that the probate decree of the Court below was not appealed on time, the same had become final and conclusive. Hence, the appellate courts may no longer revoke said decree nor review the evidence upon which it is made to rest. Thus, the appeal belatedly lodged against the decree was correctly dismissed. The alleged revocation implied from the execution of the deeds of conveyance in favor of the testamentary heir is plainly irrelevant to and separate from the question of whether the testament was duly executed. For one, if the will is not entitled to probate, or its probate is denied, all questions of revocation become superfluous in law, there is no such will and hence there would be nothing to revoke. Then, again, the revocation invoked by the oppositors-appellants is not an express one, but merely implied from subsequent acts of the testatrix allegedly evidencing an abandonment of the original intention to bequeath or devise the properties concerned. As such, the revocation would not affect

the will itself, but merely the particular devise or legacy. Only the total and absolute revocation can preclude probate of the revoked testament (Trillana vs. Crisostomo, supra.). As to the issue of estoppel, we have already ruled in Guevara vs. Guevara, 98 Phil. 249, that the presentation and probate of a will are requirements of public policy, being primarily designed to protect the testator's, expressed wishes, which are entitled to respect as a consequence of the decedent's ownership and right of disposition within legal limits. Evidence of it is the duty imposed on a custodian of a will to deliver the same to the Court, and the fine and imprisonment prescribed for its violation (Revised Rule 75). It would be a non sequitur to allow public policy to be evaded on the pretext of estoppel. Whether or not the order overruling the allegation of estoppel is still appealable or not, the defense is patently unmeritorious and the Court of Appeals correctly so ruled. The last issue, that of revocation, is predicated on paragraph 2 of Article 957 of the Civil Code of 1950 (Art. 869 of the Code of 1889), which recites: Art. 957. The legacy or devise shall be without effect: (1) . . . . (2) If the testator by any title or for any cause alienates the thing bequeathed or any part thereof, it being understood that in the latter case the legacy or devise shall be without effect only with respect to the part thus alienated. If after the alienation the thing should again belong to the testator, even if it be by reason of nullity of the contract, the legacy or devise shall not thereafter be valid, unless the reacquisition shall have been effected by virtue of the exercise of the right of repurchase; It is well to note that, unlike in the French and Italian Codes, the basis of the quoted provision is a presumed change of intention on the part of the testator. As pointed out by Manresa in his Commentaries on Article 869 of the Civil Code (Vol. 6, 7th Ed., p. 743) Este caso se funda en la presunta voluntad del testador. Si este, despues de legar, se desprende de la cosa por titulo lucrativo u oneroso, hace desaparecer su derecho sobra ella, dando lugar a la presuncion de que ha cambiado de voluntad, y no quiere que el legado se cumpla. Mas para que pueda presumirse esa voluntad, es necesario que medien actos del testador que la indiquen. Si la perdida del derecho sobre la cosa ha sido independiente de la voluntad del testador, el legado podraquedar sin efecto, mas no en virtud del numero 2 del articulo 869, que exige siempre actos voluntarios de enajenacion por parte del mismo testador. As observed by the Court of Appeals, the existence of any such change or departure from the original intent of the testatrix, expressed in her 1930 testament, is rendered doubtful by the circumstance that the subsequent alienations in 1943 and 1944 were executed in favor of the legatee herself, appellee Dimagiba. In fact, as found by the Court of Appeals in its decision annulling these conveyances (affirmed in that point by this Supreme Court in Reyes vs. Court of Appeals and Dimagiba, L-5618 and L-5620, promulgated on July 31, 1954), "no consideration whatever was paid by respondent Dimagiba" on account of the transfers, thereby rendering it even more doubtful whether in conveying the property to her legatee, the testatrix merely intended to comply in advance with what she had ordained in her testament, rather than an 1 alteration or departure therefrom. Revocation being an exception, we believe, with the Courts below, that in the circumstances of the particular case, Article 957 of the Civil Code of the Philippines, does not apply to the case at bar. Not only that, but even if it were applicable, the annulment of the conveyances would not necessarily result in the revocation of the legacies, if we bear in mind that the findings made in the decision decreeing the annulment of the subsequent 1943 and 1944 deeds of sale were also that it was the moral influence, originating from their confidential relationship, which was the only cause for the execution of Exhs. A and B (the 1943 and 1944 conveyances). (Decision, L-5618 and L-5620). If the annulment was due to undue influence, as the quoted passage implies, then the transferor was not expressing her own free will and intent in making the conveyances. Hence, it can not be concluded, either, that such conveyances established a decision on her part to abandon the original legacy. True it is that the legal provision quoted prescribes that the recovery of the alienated property "even if it be by reason of the nullity of the contract" does not revive the legacy; but as pointed out by Scaevola (Codigo Civil, Vol. XV, 4th Ed., pp. 324-325) the "nullity of the contract" 2 can not be taken in an absolute sense. Certainly, it could not be maintained, for example, that if a testator's subsequent alienation were avoided because the testator was mentally deranged at the time, the revocatory effect ordained by the article should still ensue. And the same thing could be said if the alienation (posterior to the will) were avoided on account of physical or mental duress. Yet, an alienation through undue influence in no way differs from one made through violence or intimidation. In either case, the transferor is not expressing his real 3 intent, and it can not be held that there was in fact an alienation that could produce a revocation of the anterior bequest. In view of the foregoing considerations, the appealed decision of the Court of Appeals is hereby affirmed. Costs against appellants Reyes and Fernandez. So ordered. ANTILANO G. MERCADO, petitioner, vs. ALFONSO SANTOS, Judge of First Instance of Pampanga, respondents. ROSARIO BASA DE LEON, ET AL., intervenors. LAUREL, J.: On May 28, 1931, the petitioner herein filed in the Court of First Instance of Pampanga a petition for the probate of the will of his deceased wife, Ines Basa. Without any opposition, and upon the testimony of Benigno F. Gabino, one of the attesting witnesses, the probate court, on June 27,1931, admitted the will to probate. Almost three years later, on April 11, 1934, the five intervenors herein moved ex parte to reopen the proceedings, alleging lack of jurisdiction of the court to probate the will and to close the proceedings. Because filed ex parte, the motion

was denied. The same motion was filed a second time, but with notice to the adverse party. The motion was nevertheless denied by the probate court on May 24, 1934. On appeal to this court, the order of denial was affirmed on July 26, 1935. (Basa vs. Mercado, 33 Off. Gaz., 2521.) It appears that on October 27, 1932, i. e., sixteen months after the probate of the will of Ines Basa, intervenor Rosario Basa de Leon filed with the justice of the peace court of San Fernando, Pampanga, a complaint against the petitioner herein, for falsification or forgery of the will probated as above indicated. The petitioner was arrested. He put up a bond in the sum of P4,000 and engaged the services of an attorney to undertake his defense. Preliminary investigation of the case was continued twice upon petition of the complainant. The complaint was finally dismissed, at the instance of the complainant herself, in an order dated December 8, 1932. Three months later, or on March 2, 1933, the same intervenor charged the petitioner for the second time with the same offense, presenting the complaint this time in the justice of the peace court of Mexico, Pampanga. The petitioner was again arrested, again put up a bond in the sum of P4,000, and engaged the services of counsel to defend him. This second complaint, after investigation, was also dismissed, again at the instance of the complainant herself who alleged that the petitioner was in poor health. That was on April 27, 1933. Some nine months later, on February 2, 1934, to be exact, the same intervenor accused the same petitioner for the third time of the same offense. The information was filed by the provincial fiscal of Pampanga in the justice of the peace court of Mexico. The petitioner was again arrested, again put up a bond of P4,000, and engaged the services of defense counsel. The case was dismissed on April 24, 1934, after due investigation, on the ground that the will alleged to have been falsified had already been probated and there was no evidence that the petitioner had forged the signature of the testatrix appearing thereon, but that, on the contrary, the evidence satisfactorily established the authenticity of the signature aforesaid. Dissatisfied with the result, the provincial fiscal, on May 9, 1934, moved in the Court of First Instance of Pampanga for reinvestigation of the case. The motion was granted on May 23, 1934, and, for the fourth time, the petitioner was arrested, filed a bond and engaged the services of counsel to handle his defense. The reinvestigation dragged on for almost a year until February 18, 1934, when the Court of First Instance ordered that the case be tried on the merits. The petitioner interposed a demurrer on November 25, 1935, on the ground that the will alleged to have been forged had already been probated. This demurrer was overruled on December 24, 1935, whereupon an exception was taken and a motion for reconsideration and notice of appeal were filed. The motion for reconsideration and the proposed appeal were denied on January 14, 1936. The case proceeded to trial, and forthwith petitioner moved to dismiss the case claiming again that the will alleged to have been forged had already been probated and, further, that the order probating the will is conclusive as to the authenticity and due execution thereof. The motion was overruled and the petitioner filed with the Court of Appeals a petition for certiorari with preliminary injunction to enjoin the trial court from further proceedings in the matter. The injunction was issued and thereafter, on June 19, 1937, the Court of Appeals denied the petition for certiorari, and dissolved the writ of preliminary injunction. Three justices dissented in a separate opinion. The case is now before this court for review on certiorari. Petitioner contends (1) that the probate of the will of his deceased wife is a bar to his criminal prosecution for the alleged forgery of the said will; and, (2) that he has been denied the constitutional right to a speedy trial. 1. Section 306 of our Code of Civil Procedure provides as to the effect of judgments. SEC. 306. Effect of judgment. The effect of a judgment or final order in an action or special proceeding before a court or judge of the Philippine Islands or of the United States, or of any State or Territory of the United States, having jurisdiction to pronounce the judgment or order, may be as follows. 1. 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 relation of a particular person, the judgment or order is conclusive upon the title of the thing, the will or administration, or the condition or relation of the person Provided, That 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. (Emphasis ours.) Section 625 of the same Code is more explicit as to the conclusiveness of the due execution of a probate will. It says. SEC. 625. Allowance Necessary, and Conclusive as to Execution. No will shall pass either the real or personal estate, unless it is proved and allowed in the Court of First Instance, or by appeal to the Supreme Court; and the allowance by the court of a will of real and personal estate shall be conclusive as to its due execution. (Emphasis ours.) (In Manahan vs. Manahan 58 Phil., 448, 451), we held: . . . The decree of probate is conclusive with respect to the due execution thereof and it cannot be impugned on any of the grounds authorized by law, except that of fraud, in any separate or independent action or proceeding. Sec. 625, Code of Civil Procedure; Castaeda vs. Alemany, 3 Phil., 426; Pimentel vs. Palanca, 5 Phil., 436; Sahagun vs. De Gorostiza, 7 Phil., 347; Limjuco vs. Ganara, 11 Phil., 393; Montaano vs. Suesa, 14 Phil., 676; in re Estate of Johnson, 39 Phil, 156; Riera vs. Palmaroli, 40 Phil., 105; Austria vs. Ventenilla, 21 Phil., 180; Ramirez vs. Gmur, 42 Phil., 855; and Chiong Jocsoy vs. Vano, 8 Phil., 119. In 28 R. C. L., p. 377, section 378, it is said. The probate of a will by the probate court having jurisdiction thereof is usually considered as conclusive as to its due execution and validity, and is also conclusive that the testator was of sound and disposing mind at the time when he executed the will, and was not acting under duress, menace, fraud, or undue influence, and that the will is genuine and not a forgery. (Emphasis ours.) As our law on wills, particularly section 625 of our Code of Civil Procedure aforequoted, was taken almost bodily from the Statutes of Vermont, the decisions of the Supreme Court of the State relative to the effect of the probate of a will are of persuasive authority in this jurisdiction. The Vermont statute as to the conclusiveness of the due execution of a probated will reads as follows.

SEC. 2356. No will shall pass either real or personal estate, unless it is proved and allowed in the probate court, or by appeal in the county or supreme court; and the probate of a will of real or personal estate shall be conclusive as to its due execution. (Vermont Statutes, p. 451.) Said the Supreme Court of Vermont in the case of Missionary Society vs. Eells (68 Vt., 497, 504): "The probate of a will by the probate court having jurisdiction thereof, upon the due notice, is conclusive as to its due execution against the whole world. (Vt. St., sec. 2336; Fosters Exrs. vs. Dickerson, 64 Vt., 233.)" The probate of a will in this jurisdiction is a proceeding in rem. The provision of notice by Publication as a prerequisite to the allowance of a will is constructive notice to the whole world, and when probate is granted, the judgment of the court is binding upon everybody, even against the State. This court held in the case of Manalo vs. Paredes and Philippine Food Co. (47 Phil., 938): The proceeding for the probate of a will is one in rem (40 Cyc., 1265), and the court acquires jurisdiction over all the persons interested, through the publication of the notice prescribed by section 630 of the Code of Civil Procedure, and any order that may be entered therein is binding against all of them. Through the publication of the petition for the probate of the will, the court acquires jurisdiction over all such persons as are interested in said will; and any judgment that may be rendered after said proceeding is binding against the whole world. In Everrett vs. Wing (103 Vt., 488, 492), the Supreme Court of Vermont held. In this State the probate of a will is a proceeding in rem being in form and substance upon the will itself to determine its validity. The judgment determines the status of the instrument, whether it is or is not the will of the testator. When the proper steps required by law have been taken the judgment is binding upon everybody, and makes the instrument as to all the world just what the judgment declares it to be. (Woodruff vs. Taylor, 20 Vt., 65, 73; Burbeck vs. Little, 50 Vt., 713, 715; Missionary Society vs. Eells, 68 Vt., 497, 504; 35 Atl., 463.) The proceedings before the probate court are statutory and are not governed by common law rules as to parties or causes of action. (Holdrige vs. Holdriges Estate, 53 Vt., 546, 550; Purdy vs. Estate of Purdy, 67 Vt. 50, 55; 30 Atl., 695.) No process is issued against anyone in such proceedings, but all persons interested in determining the state or conditions of the instrument are constructively notified by the publication of notice as required by G. L. 3219. (Woodruff vs. Taylor, supra; In re Warners Estate 98 Vt., 254; 271; 127 Atl., 362.) Section 333, paragraph 4, of the Code of Civil Procedure establishes an incontrovertible presumption in favor of judgments declared by it to be conclusive. SEC. 333. Conclusive Presumptions. The following presumptions or deductions, which the law expressly directs to be made from particular facts, are deemed conclusive. 4. The judgment or order of a court, when declared by this code to be conclusive. Conclusive presumptions are inferences which the law makes so peremptory that it will not allow them to be overturned by any contrary proof however strong. (Brant vs. Morning Journal Assn., 80 N.Y.S., 1002, 1004; 81 App. Div., 183; see, also, Joslyn vs. Puloer, 59 Hun., 129, 140, 13 N.Y.S., 311.) The will in question having been probated by a competent court, the law will not admit any proof to overthrow the legal presumption that it is genuine and not a forgery. The majority decision of the Court of Appeals cites English decisions to bolster up its conclusion that "the judgment admitting the will to probate is binding upon the whole world as to the due execution and genuineness of the will insofar as civil rights and liabilities are concerned, but not for the purpose of punishment of a crime." The cases of Dominus Rex vs. Vincent, 93 English Reports, Full Reprint, 795, the first case being decided in 1721, were cited to illustrate the earlier English decisions to the effect that upon indictment for forging a will, the probating of the same is conclusive evidence in the defendants favor of its genuine character. Reference is made, however, to the cases of Rex vs. Gibson, 168 English Reports, Full Reprint, 836, footnote (a), decided in 1802, and Rex vs. Buttery and Macnamarra, 168 English Reports, Full Reprint, 836, decided in 1818, which establish a contrary rule. Citing these later cases, we find the following quotation from Black on Judgments, Vol. II, page 764. A judgment admitting a will to probate cannot be attacked collaterally although the will was forged; and a payment to the executor named therein of a debt due the decedent will discharge the same, notwithstanding the spurious character of the instrument probated. It has also been held that, upon an indictment for forging a will, the probate of the paper in question is conclusive evidence in the defendants favor of its genuine character. But this particular point has lately been ruled otherwise. It was the case of Rex vs. Buttery, supra, which induced the Supreme Court of Massachussetts in the case of Waters vs. Stickney (12 Allen 1; 90 Am. Dec., 122) also cited by the majority opinion, to hold that "according to later and sounder decisions, the probate, though conclusive until set aside of the disposition of the property, does not protect the forger from punishment." This was reproduced in 28 R.C.L., p. 376, and quoted in Barry vs. Walker (103 Fla., 533; 137 So., 711, 715), and Thompson vs. Freeman (149 So., 740, 742), also cited in support of the majority opinion of the Court of Appeals. The dissenting opinion of the Court of Appeals in the instant case under review makes a cursory study of the statutes obtaining in England, Massachussetts and Florida, and comes to the conclusion that the decisions cited in the majority opinion do not appear to "have been promulgated in the face of statutes similar to ours." The dissenting opinion cites Whartons Criminal Evidence (11th ed., sec. 831), to show that the probate of a will in England is only prima facie proof of the validity of the will (Op. Cit. quoting Marriot vs. Marriot, 93 English Reprint, 770); and 21 L.R.A. (pp. 686689 and note), to show that in Massachussetts there is no statute making the probate of a will conclusive, and that in Florida the statute(sec. 1810, Revised Statutes) makes the probate conclusive evidence as to the

validity of the will with regard to personal, and prima facie as to real estate. The cases decided by the Supreme Court of Florida cited by the majority opinion, supra, refer to wills of both personal and real estate. The petitioner cites the case of State vs. McGlynn (20 Cal., 233, decided in 1862), in which Justice Norton of the Supreme Court of California, makes the following review of the nature of probate proceedings in England with respect to wills personal and real property. In England, the probate of wills of personal estate belongs to the Ecclesiastical Courts. No probate of a will relating to real estate is there necessary. The real estate, upon the death of the party seized, passes immediately to the devisee under the will if there be one; or if there be no will, to the heir at law. The person who thus becomes entitled takes possession. If one person claims to be the owner under a will, and another denies the validity of the will and claims to be the owner as heir at law, an action of ejectment is brought against the party who may be in possession by the adverse claimant; and on the trial of such an action, the validity of the will is contested, and evidence may be given by the respective parties as to the capacity of the testator to make a will, or as to any fraud practiced upon him, or as to the actual execution of it, or as to any other circumstance affecting its character as a valid devise of the real estate in dispute. The decision upon the validity of the will in such action becomes res adjudicata, and is binding and conclusive upon the parties to that action and upon any person who may subsequently acquire the title from either of those parties; but the decision has no effect upon other parties, and does not settle what may be called the status or character of the will, leaving it subject to be enforced as a valid will, or defeated as invalid, whenever other parties may have a contest depending upon it. A probate of a will of personal property, on the contrary, is a judicial determination of the character of the will itself. It does not necessarily or ordinarily arise from any controversy between adverse claimants, but is necessary in order to authorize a disposition of the personal estate in pursuance of its provisions. In case of any controversy between adverse claimants of the personal estate, the probate is given in evidence and is binding upon the parties, who are not at liberty to introduce any other evidence as to the validity of the will. The intervenors, on the other hand, attempt to show that the English law on wills is different from that stated in the case of State vs. McGlynn, supra, citing the following statutes. 1. The Wills Act, 1837 (7 Will. 4 E 1 Vict. c. 26). 2. The Court of Probate Act, 1857 (20 and 21 Vict. c. 77). 3. The Judicature Act, 1873 (36 and 37 Vict. c. 66). The Wills Act of 1837 provides that probate may be granted of "every instrumental purporting to be testamentary and executed in accordance with the statutory requirements . . . if it disposes of property, whether personal or real." The Ecclesiastical Courts which took charge of testamentary causes (Ewells Blackstone [1910], p. 460), were determined by the Court of Probate Act of 1857, and the Court of Probate in turn was, together with other courts, incorporated into the Supreme Court of Judicature, and transformed into the Probate Division thereof, by the Judicature Act of 1873. (Lord Halsbury, The Laws of England[1910], pp. 151156.) The intervenors overlook the fact, however, that the case of Rex vs. Buttery and Macnamarra, supra, upon which they rely in support of their theory that the probate of a forged will does not protect the forger from punishment, was decided long before the foregoing amendatory statutes to the English law on wills were enacted. The case of State vs. McGlynn may be considered, therefore, as more or less authoritative on the law of England at the time of the promulgation of the decision in the case of Rex vs. Buttery and Macnamarra. In the case of State vs. McGlynn, the Attorney General of California filed an information to set aside the probate of the will of one Broderick, after the lapse of one year provided by the law of California for the review of an order probating a will, in order that the estate may be escheated to the State of California for the review of an probated will was forged and that Broderick therefore died intestate, leaving no heirs, representatives or devisees capable of inheriting his estate. Upon these facts, the Supreme Court of California held. The fact that a will purporting to be genuine will of Broderick, devising his estate to a devisee capable of inheriting and holding it, has been admitted to probate and established as a genuine will by the decree of a Probate Court having jurisdiction of the case, renders it necessary to decide whether that decree, and the will established by it, or either of them, can be set aside and vacated by the judgment of any other court. If it shall be found that the decree of the Probate Court, not reversed by the appellate court, is final and conclusive, and not liable to be vacated or questioned by any other court, either incidentally or by any direct proceeding, for the purpose of impeaching it, and that so long as the probate stands the will must be recognized and admitted in all courts to be valid, then it will be immaterial and useless to inquire whether the will in question was in fact genuine or forged. (State vs. McGlynn, 20 Cal., 233; 81 Am. Dec., 118, 121.). Although in the foregoing case the information filed by the State was to set aside the decree of probate on the ground that the will was forged, we see no difference in principle between that case and the case at bar. A subtle distinction could perhaps be drawn between setting aside a decree of probate, and declaring a probated will to be a forgery. It is clear, however, that a duly probated will cannot be declared to be a forgery without disturbing in a way the decree allowing said will to probate. It is at least anomalous that a will should be regarded as genuine for one purpose and spurious for another. The American and English cases show a conflict of authorities on the question as to whether or not the probate of a will bars criminal prosecution of the alleged forger of the probate will. We have examined some important cases and have come to the conclusion that no fixed standard maybe adopted or drawn therefrom, in view of the conflict no less than of diversity of statutory provisions obtaining in different jurisdictions. It behooves us, therefore, as the court of last resort, to choose that rule most consistent with our statutory law, having in view the needed stability of property rights and the public interest in general. To be sure, we have seriously reflected upon the dangers of evasion from punishment of culprits deserving of the severity of the law in cases where, as here, forgery is discovered after the probate of the will and the prosecution is had before the prescription of the offense. By and large, however, the balance seems inclined in favor of the view that we have taken. Not only does the law surround the execution of the will with the necessary formalities and require probate to be made after an elaborate judicial proceeding, but section 113, not to speak of section 513, of our Code of Civil Procedure provides for an adequate remedy to any party who might have been adversely affected by the probate of a forged will, much in the same way as other parties against whom a judgment is rendered under the same or similar circumstances. (Pecson vs. Coronel, 43 Phil., 358.)The aggrieved party may file an application for relief with the proper court within a reasonable time, but in no case exceeding six months after said court has rendered the judgment of probate, on the ground of mistake, inadvertence, surprise or excusable neglect. An appeal lies to review the action of a court of first instance

when that court refuses to grant relief. (Banco Espaol Filipino vs. Palanca, 37 Phil., 921; Philippine Manufacturing Co. vs. Imperial, 47 Phil., 810; Samia vs. Medina, 56 Phil., 613.) After a judgment allowing a will to be probated has become final and unappealable, and after the period fixed by section 113 of the Code of Civil Procedure has expired, the law as an expression of the legislative wisdom goes no further and the case ends there. . . . The court of chancery has no capacity, as the authorities have settled, to judge or decide whether a will is or is not a forgery; and hence there would be an incongruity in its assuming to set aside a probate decree establishing a will, on the ground that the decree was procured by fraud, when it can only arrive at the fact of such fraud by first deciding that the will was a forgery. There seems, therefore, to be a substantial reason, so long as a court of chancery is not allowed to judge of the validity of a will, except as shown by the probate, for the exception of probate decrees from the jurisdiction which courts of chancery exercise in setting aside other judgments obtained by fraud. But whether the exception be founded in good reason or otherwise, it has become too firmly established to be disregarded. At the present day, it would not be a greater assumption to deny the general rule that courts of chancery may set aside judgments procured by fraud, than to deny the exception to that rule in the case of probate decrees. We must acquiesce in the principle established by the authorities, if we are unable to approve of the reason. Judge Story was a staunch advocate for the most enlarged jurisdiction of courts of chancery, and was compelled to yield to the weight of authority. He says "No other excepted case is known to exist; and it is not easy to discover the grounds upon which this exception stands, in point of reason or principle, although it is clearly settled by authority. (1 Storys Eq. Jur. sec. 440.)" (State vs. McGlynn, 20 Cal., 233; 81 Am. Dec., 118, 129. See, also, Tracy vs. Muir, 121 American State Reports, 118, 125.) We hold, therefore, that in view of the provisions of sections 306, 333 and 625 of our Code of Civil Procedure, criminal action will not lie in this jurisdiction against the forger of a will which had been duly admitted to probate by a court of competent jurisdiction. The resolution of the foregoing legal question is sufficient to dispose of the case. However, the other legal question with reference to the denial to the accused of his right to a speedy trial having been squarely raised and submitted, we shall proceed to consider the same in the light of cases already adjudicated by this court. 2. The Constitution of the Philippines provides that "In all criminal prosecutions the accused . . . shall enjoy the right . . . to have a speedy . . . trial. . . . (Art. III, sec. 1, par. 17. See, also, G.O. No. 58, sec. 15, No. 7.) Similar provisions are to be found in the Presidents Instructions to the Second Philippine Commission (par. 11), the Philippine Bill of July 1, 1902 (sec. 5, par. 2) and the Jones Act of August 29, 1916 (sec. 3, par. 2). The provisions in the foregoing organic acts appear to have been taken from similar provisions in the Constitution of the United States (6th Amendment) and those of the various states of the American Union. A similar injunction is contained in the Malolos Constitution (art. 8, Title IV), not to speak of other constitutions. More than once this court had occasion to set aside the proceedings in criminal cases to give effect to the constitutional injunction of speedy trial. (Conde vs. Judge of First Instance and Fiscal of Tayabas [1923], 45 Phil., 173; Conde vs. Rivera and Unson[1924], 45 Phil., 650; People vs. Castaeda and Fernandez[1936]), 35 Off. Gaz., 1269; Kalaw vs. Apostol, Oct. 15, 1937, G.R. No. 45591; Esguerra vs. De la Costa, Aug. 30,1938, G.R. No. 46039.). In Conde vs. Rivera and Unson, supra, decided before the adoption of our Constitution, we said. Philippine organic and statutory law expressly guarantee that in all criminal prosecutions the accused shall enjoy the right to have a speedy trial. Aurelia Conde, like all other accused persons, has a right to a speedy trial in order that if innocent she may go free, and she has been deprived of that right in defiance of law. Dismissed from her humble position, and compelled to dance attendance on courts while investigations and trials are arbitrarily postponed without her consent, is palpably and openly unjust to her and a detriment to the public. By the use of reasonable diligence, the prosecution could have settled upon the appropriate information, could have attended to the formal preliminary examination, and could have prepared the case for a trial free from vexatious, capricious, and oppressive delays. In People vs. Castaeda and Fernandez, supra, this court found that the accused had not been given a fair and impartial trial. The case was to have been remanded to the court a quo for a new trial before an impartial judge. This step, however, was found unnecessary. A review of the evidence convinced this court that a judgment of conviction for theft, as charged, could not be sustained and, having in view the right to a speedy trial guaranteed by the Constitution to every person accused of crime, entered a judgment acquitting the accused, with costs de oficio. We said. . . . The Constitution, Article III, section 1, paragraph 17, guarantees to every accused person the right to a speedy trial. This criminal proceeding has been dragging on for almost five years now. The accused have twice appealed to this court for redress from the wrong that they have suffered at the hands of the trial court. At least one of them, namely Pedro Fernandez alias Piro, had been con-fined in prison from July 20, 1932 to November 27, 1934, for inability to post the required bond of P3,000 which was finally reduced to P300. The Government should be the last to set an example of delay and oppression in the administration of justice and it is the moral and legal obligation of this court to see that the criminal proceedings against the accused come to an end and that they be immediately dis-charged from the custody of the law. (Conde vs. Rivera and Unson, 45 Phil., 651.) In Kalaw vs. Apostol, supra, the petitioner invoked and this court applied and gave effect to the doctrines stated in the second Conde case, supra. In granting the writs prayed for, this court, after referring to the constitutional and statutory provisions guaranteeing to persons accused of crime the right to a speedy trial, said: Esguerra vs. De la Costa, supra, was a petition for mandamus to compel the respondent judge of the Court of First Instance of Rizal to dismiss the complaint filed in a criminal case against the petitioner, to cancel the bond put up by the said petitioner and to declare the costs de oficio. In accepting the contention that the petitioner had been denied speedy trial, this court said: Consta que en menos de un ao el recurrente fue procesado criminalmente por el alegado delito de abusos deshonestos, en el Juzgado de Paz del Municipio de Cainta, Rizal. Como consecuencia de las denuncias que contra el se presentaron fue arrestado tres veces y para gozar

de libertad provisional, en espera de los juicios, se vio obligado a prestartres fianzas por la suma de P1,000 cada una. Si no se da fin al proceso que ultimamente se ha incoado contra el recurrente la incertidumbre continuara cerniendose sobre el y las consiguientes molestias y preocupaciones continuaran igualmente abrumandole. El Titulo III, articulo 1, No. 17,de la Constitucion preceptua que en todo proceso criminalel acusado tiene derecho de ser juzgado pronta y publicamente. El Articulo 15, No. 7, de la Orden General No. 58 dispone asimismo que en las causas criminales el acusado tendra derecho a ser juzgado pronta y publicamente. Si el recurrente era realmente culpable del delito que se le imputo, tenia de todos modos derechos a que fuera juzgado pronta y publicamente y sin dilaciones arbitrarias y vejatorias. Hemos declarado reiteradamente que existe un remedio positivo para los casos en que se viola el derecho constitucional del acusado de ser juzgado prontamente. El acusado que esprivado de su derecho fundomental de ser enjuiciado rapidamente tiene derecho a pedir que se le ponga en libertad, si estuviese detenido, o a que la causa que pende contra el sea sobreseida definitivamente. (Conde contra Rivera y Unson, 45 Jur. Fil., 682; In the matter of Ford [1911], 160 Cal., 334; U. S. vs. Fox [1880], 3 Mont., 512; Kalaw contra Apostol, R. G. No. 45591, Oct. 15, 1937; Pueblo contra Castaeda y Fernandez, 35 Gac. Of., 1357.) We are again called upon to vindicate the fundamental right to a speedy trial. The facts of the present case may be at variance with those of the cases hereinabove referred to. Nevertheless, we are of the opinion that, under the circumstances, we should consider the substance of the right instead of indulging in more or less academic or undue factual differentiations. The petitioner herein has been arrested four times, has put up a bond in the sum of P4,000 and has engaged the services of counsel to undertake his defense an equal number of times. The first arrest was made upon a complaint filed by one of the intervenors herein for alleged falsification of a will which, sixteen months before, had been probated in court. This complaint, after investigation, was dismissed at the complainant's own request. The second arrest was made upon a complaint charging the same offense and this complaint, too, was dismissed at the behest of the complainant herself who alleged the quite startling ground that the petitioner was in poor health. The third arrest was made following the filing of an information by the provincial fiscal of Pampanga, which information was dismissed, after due investigation, because of insufficiency of the evidence. The fourth arrest was made when the provincial fiscal secured a reinvestigation of the case against the petitioner on the pretext that he had additional evidence to present, although such evidence does not appear to have ever been presented. It is true that the provincial fiscal did not intervene in the case until February 2, 1934, when he presented an information charging the petitioner, for the third time, of the offense of falsification. This, however, does not matter. The prosecution of offenses is a matter of public interest and it is the duty of the government or those acting in its behalf to prosecute all cases to their termination without oppressive, capricious and vexatious delay. The Constitution does not say that the right to a speedy trial may be availed of only where the prosecution for crime is commenced and undertaken by the fiscal. It does not exclude from its operation cases commenced by private individuals. Where once a person is prosecuted criminally, he is entitled to a speedy trial, irrespective of the nature of the offense or the manner in which it is authorized to be commenced. In any event, even the actuations of the fiscal himself in this case is not entirely free from criticism. From October 27, 1932, when the first complaint was filed in the justice of the peace court of San Fernando, to February 2, 1934, when the provincial fiscal filed his information with the justice of the peace of Mexico, one year, three months and six days transpired; and from April 27, 1933, when the second criminal complaint was dismissed by the justice of the peace of Mexico, to February 2, 1934, nine months and six days elapsed. The investigation following the fourth arrest, made after the fiscal had secured a reinvestigation of the case, appears also to have dragged on for about a year. There obviously has been a delay, and considering the antecedent facts and circumstances within the knowledge of the fiscal, the delay may not at all be regarded as permissible. In Kalaw vs. Apostol, supra, we observed that the prosecuting officer all prosecutions for public offenses (secs. 1681 and 2465 of the Rev. Adm. Code), and that it is his duty to see that criminal cases are heard without vexatious, capricious and oppressive delays so that the courts of justice may dispose of them on the merits and determine whether the accused is guilty or not. This is as clear an admonition as could be made. An accused person is entitled to a trial at the earliest opportunity. (Sutherland on the Constitution, p. 664; United States vs. Fox, 3 Mont., 512.) He cannot be oppressed by delaying he commencement of trial for an unreasonable length of time. If the proceedings pending trial are deferred, the trial itself is necessarily delayed. It is not to be supposed, of course, that the Constitution intends to remove from the prosecution every reasonable opportunity to prepare for trial. Impossibilities cannot be expected or extraordinary efforts required on the part of the prosecutor or the court. As stated by the Supreme Court of the United States, "The right of a speedy trial is necessarily relative. It is consistent with delays and depends upon circumstances. It secures rights to a defendant. It does not preclude the rights of public justice." (Beavers vs. Haubert [1905], 198 U. S., 86; 25 S. Ct., 573; 49 Law. ed., 950, 954.). It may be true, as seems admitted by counsel for the intervenors, in paragraph 8, page 3 of his brief, that the delay was due to "the efforts towards reaching an amicable extrajudicial compromise," but this fact, we think, casts doubt instead upon the motive which led the intervenors to bring criminal action against the petitioner. The petitioner claims that the intention of the intervenors was to press upon settlement, with the continuous threat of criminal prosecution, notwithstanding the probate of the will alleged to have been falsified. Argument of counsel for the petitioner in this regard is not without justification. Thus after the filing of the second complaint with the justice of the peace court of Mexico, complainant herself, as we have seen, asked for dismissal of the complaint, on the ground that "el acusado tenia la salud bastante delicada," and, apparently because of failure to arrive at any settlement, she decided to renew her complaint. Counsel for the intervenors contend and the contention is sustained by the Court of Appeals that the petitioner did not complain heretofore of the denial of his constitutional right to a speedy trial. This is a mistake. When the petitioner, for the fourth time, was ordered arrested by the Court of First Instance of Pampanga, he moved for reconsideration of the order of arrest, alleging, among other things, "Que por estas continuas acusaciones e investigaciones, el acusado compareciente no obstante su mal estado de salud desde el ao 1932 en que tuvo que ser operado por padecer de tuberculosis ha tenido que sostener litigios y ha sufrido la mar de humiliaciones y zozobras y ha incudo en enormes gastos y molestias y ha desatendido su quebrantada salud." The foregoing allegation was inserted on page 6 of the amended petition for certiorari presented to the Court of Appeals. The constitutional issue also appears to have been actually raised and considered in the Court of Appeals. In the majority opinion of that court, it is stated: Upon the foregoing facts, counsel for the petitioner submits for the consideration of this court the following questions of law: First, that the respondent court acted arbitrarily and with abuse of its authority, with serious damage and prejudice to the rights and interests of the petitioner, in allowing that the latter be prosecuted and arrested for the fourth time, and that he be subjected, also for the fourth time, to a preliminary investigation for the same offense, hereby converting the court into an instrument of oppression and vengeance on the part of the alleged offended parties, Rosario Basa et al.; . . . .

And in the dissenting opinion, we find the following opening paragraph: We cannot join in a decision declining to stop a prosecution that has dragged for about five years and caused the arrest on four different occasions of a law abiding citizen for the alleged offense of falsifying a will that years be competent jurisdiction. From the view we take of the instant case, the petitioner is entitled to have the criminal proceedings against him quashed. The judgment of the Court of Appeals is hereby reversed, without pronouncement regarding costs. So ordered. TESTATE ESTATE OF HILARION RAMAGOSA. MARIANO SUMILANG, petitioner-appellee, vs. SATURNINA RAMAGOSA, SANTIAGO RAMAGOSA, ENRIQUE PABELLA, LICERIA PABELLA and ANDREA RAVALO, oppositors-appellants. MAKALINTAL, J.: On July 5, 1960 Mariano Sumilang filed in the Court of First Instance of Quezon a petition for the probate of a document alleged to be the last will and testament of Hilarion Ramagosa, who died on December 1, 1959. Said document, written in Tagalog and dated February 26, 1949, institutes petitioner as sole heir of the testator. The petition for probate was opposed by two (2) of oppositors appellants herein who questioned the due execution of the document, claiming that it was made under duress and was not really intended by the deceased to be his last will and testament. Aside from merely opposing the petition for probate, the first set of oppositors Saturnino and Santiago Ramagosa also claimed that they, instead of petitioner, were entitled to inherit the estate of the deceased. The other oppositors representing themselves simply as next of kin, appropriately prayed only for the disallowance of the will. At the hearings of the petition petitioner adduced his evidence, and then rested his case on February 16, 1961. Reception of oppositors' evidence was set for July 14, 1961. However, on July 3, 1961 oppositors moved for the dismissal of the petition for probate mainly on the ground that "the court lacks jurisdiction over the subject-matter because the last will and testament of the decedent, if ever it was really executed by him, was revoked by implication of law six years before his death." Oppositors alleged that after making the will Hilarion Ramagosa sold to petitioner Mariano Sumilang and his brother Mario the parcels of land described therein, so that at the time of the testator's death the titles to said lands were no longer in his name. Petitioner filed his opposition to the motion for dismissal on July 17, 1961 supplemented it by another opposition on August 14, 1961, and by a rejoinder on August 21, 1961. Finally, on October 22, 1962 petitioner moved to strike out the oppositors' pleadings on two grounds, namely: 1. That oppositors have no legal standing in court and they are bereft of personality to oppose the probate of the last will and testament of the testators; and 2. That oppositors have no valid claim and interest in the distribution of (the) estate of the aforesaid testator and no existing valid right whatsoever. On October 18, 1963 the court a quo issued the order now subject of this appeal, which read as follows: Acting on the motion to dismiss filed by the oppositors dated July 31, 1961, the same is hereby denied for the allegations contained therein goes (sic) to the very intrinsic value of the will and other grounds stated on said motion to dismiss are without merit.itc-alf With respect to the motion to strike out opposition and all other pleadings of oppositors filed by the petitioner, it appears that oppositors have no relationship whatsoever within the fifth degree as provided by law and therefore the oppositors are totally strangers to the deceased whose will is under probate. This being so, the motion to strike out opposition and all other pleadings pertinent thereto is hereby ordered stricken out of the record. The petition below being for the probate of a will, the court's area of inquiry is limited to the extrinsic validity thereof. The testator's testamentary capacity and the compliance with the formal requisites or solemnities prescribed by law are the only questions presented for the resolution of the court. Any inquiry into the intrinsic validity or efficacy of the provisions of the will or the legality of any devise or legacy is premature. (Nuguid vs. Nuguid, G.R. No. L-23445, June 23, 1966). To establish conclusively as against everyone and once for all, the facts that a will was executed with the formalities required by law and that the testator was in a condition to make a will, is the only purpose of the proceedings . . . for the probate of a will. The judgment in such proceedings determines and can determine nothing more. (Alemany, et al. vs. CFI of Manila, 3 Phil. 424). Oppositors would want the court a quo to dismiss petition for probate on the ground that the testator had impliedly revoked his will by selling, prior to his death, the lands disposed of therein. True or not, the alleged sale is no ground for the dismissal of the petition for probate. Probate is one thing the validity of the testamentary provisions is another.itc-alf The first decides the execution of the document and the testamentary capacity of the testator; the second relates to descent and distribution. The alleged revocation implied from the execution of the deeds of conveyance in favor of the testamentary heir is plainly irrelevant to and separate from the question of whether the testament was duly executed. For one, if the will is not entitled to probate, or its probate is denied, all questions of revocation become superfluous: in law, there is no such will and hence there would be nothing to revoke. Then, again, the revocation invoked by the oppositors-appellants is not an express one, but merely implied from subsequent acts of the testatrix allegedly evidencing an abandonment of the original intention to bequeath or devise the properties concerned. As such, the revocation would not affect

the will itself, but merely the particular devise or legacy.itc-alf (Fernandez, et al. vs. Dimagiba, L-23638 and Reyes, et al. vs. Dimagiba, L23662, October 12, 1967.) In their brief, oppositors do not take issue with the court a quo's finding that they "have no relationship whatsoever within the fifth degree as provided by law and therefore . . . are totally (sic) strangers to the deceased whose will is under probate." They do not attempt to show that they have some interest in the estate which must be protected. The uncontradicted evidence, consisting of certified true copies of the parties' baptism and marriage certificates, support the said court's finding in this respect. It is a well-settled rule that in order that a person may be allowed to intervene in a probate proceeding he must have an interest in the estate, or in the will, or in the property to be affected by it either as executor or as a claimant of the estate (Ngo The Hua vs. Chung Kiat Hua, et al., L17091, September 30, 1963); and an interested party has been defined as one who would be benefited by the estate such as an heir or one who has a claim against the estate like a creditor. (Teotico vs. Del Val, etc., G.R. No. L- 18753, March 26, 1965.) The reason for the rule excluding strangers from contesting the will, is not that thereby the court may be prevented from learning facts which would justify or necessitate a denial of probate, but rather that the courts and the litigants should not be molested by the intervention in the proceedings of persons with no interest in the estate which would entitle them to be heard with relation thereto. (Paras vs. Narciso, 35 Phil. 244.) Sometime after this case was elevated to this Court appellee moved to dismiss the appeal on the ground that the order appealed from is interlocutory. We deferred action on the motion until after the brief of both parties had been filed. The motion, although now practically academic in view of our resolution of the main issue involved, must be denied, since the order of the lower court striking out appellants' opposition to the probate of the will on the ground that they have no personality to intervene in the case, was final and therefore appealable order insofar as they were concerned. The order appealed from is hereby affirmed, with costs against oppositors- appellants. In the Matter of the Petition to Approve the Will of Leodegaria Julian. FELIX BALANAY, JR., petitioner, vs. HON. ANTONIO M. MARTINEZ, Judge of the Court of First Instance of Davao, Branch VI; AVELINA B. ANTONIO and DELIA B. LANABAN, respondents. AQUINO, J.: Felix Balanay, Jr. appealed by certiorari from the order of the Court of First Instance of Davao dated February 28, 1974, declaring illegal and void the will of his mother, Leodegaria Julian, converting the testate proceeding into an intestate proceeding and ordering the issuance of the corresponding notice to creditors (Special Case No. 1808). The antecedents of the appeal are as follows: Leodegaria Julian, a native of Sta. Maria, Ilocos Sur, died on February 12, 1973 in Davao City at the age of sixty-seven. She was survived by her husband, Felix Balanay, Sr., and by their six legitimate children named Felix Balanay, Jr., Avelina B. Antonio, Beatriz B. Solamo, Carolina B. Manguiob, Delia B. Lanaban and Emilia B. Pabaonon. Felix J. Balanay, Jr. filed in the lower court a petition dated February 27, 1973 for the probate of his mother's notarial will dated September 5, 1970 which is written in English. In that will Leodegaria Julian declared (a) that she was the owner of the "southern half of nine conjugal lots (par. II); (b) that she was the absolute owner of two parcels of land which she inherited from her father (par. III), and (c) that it was her desire that her properties should not be divided among her heirs during her husband's lifetime and that their legitimes should be satisfied out of the fruits of her properties (Par. IV). Then, in paragraph V of the will she stated that after her husband's death (he was eighty-two years old in 1973) her paraphernal lands and all the conjugal lands (which she described as "my properties") should be divided and distributed in the manner set forth in that part of her will. She devised and partitioned the conjugal lands as if they were all owned by her. She disposed of in the will her husband's one half share of the conjugal assets. * Felix Balanay, Sr. and Avelina B. Antonio opposed the probate of the will on the grounds of lack of testamentary capacity, undue influence, preterition of the husband and alleged improper partition of the conjugal estate. The oppositors claimed that Felix Balanay, Jr. should collate certain properties which he had received from the testatrix. Felix Balanay, Jr., in his reply to the opposition, attached thereto an affidavit of Felix Balanay, Sr. dated April 18, 1973 wherein he withdrew his opposition to the probate of the will and affirmed that he was interested in its probate. On the same date Felix Balanay, Sr. signed an instrument captioned "Conformation (sic) of Division and Renunciation of Hereditary Rights" wherein he manifested that out of respect for his wife's will he "waived and renounced' his hereditary rights in her estate in favor of their six children. In that same instrument he confirmed the agreement, which he and his wife had perfected before her death, that their conjugal properties would be partitioned in the manner indicated in her will. Avelina B. Antonio, an oppositor, in her rejoinder contended that the affidavit and "conformation" of Felix Balanay, Sr. were void. The lower court in its order of June 18, 1973 "denied" the opposition and reset for hearing the probate of the will. It gave effect to the affidavit and conformity of Felix Balanay, Sr. In an order dated August 28, 1973 it appointed its branch clerk of court as special administrator of the decedent's estate. Mrs. Antonio moved for the reconsideration of the lower court's order of June 18, 1973 on the grounds (a) that the testatrix illegally claimed that she was the owner of the southern half of the conjugal lots and (b) that she could not partition the conjugal estate by allocating portions of the

nine lots to her children. Felix Balanay, Jr., through his counsel, Hermenegildo Cabreros, opposed that motion. The lower court denied it in its order of October 15, 1973. In the meanwhile, another lawyer appeared in the case. David O. Montaa, Sr., claiming to be the lawyer of petitioner Felix Balanay, Jr. (his counsel of record was Atty. Cabreros), filed a motion dated September 25, 1973 for "leave of court to withdraw probate of alleged will of Leodegaria Julian and requesting authority to proceed by intestate estate proceeding." In that motion Montaa claimed to be the lawyer not only of the petitioner but also of Felix Balanay, Sr., Beatriz B. Solamo, Carolina B. Manguiob and Emilia B. Pabaonon. Montaa in his motion assailed the provision of the will which partitioned the conjugal assets or allegedly effected a compromise of future legitimes. He prayed that the probate of the will be withdrawn and that the proceeding be converted into an intestate proceeding. In another motion of the same date he asked that the corresponding notice to creditors be issued. Avelina B. Antonio and Delia B. Lanaban, through Atty. Jose B. Guyo, in their comments dated October 15, 1973 manifested their conformity with the motion for the issuance of a notice to creditors. They prayed that the will be declared void for being contrary to law and that an intestacy be declared. The lower court, acting on the motions of Atty. Montaa, assumed that the issuance of a notice to creditors was in order since the parties had agreed on that point. It adopted the view of Attys. Montaa and Guyo that the will was void. So, in its order of February 28, 1974 it dismissed the petition for the probate, converted the testate proceeding into an intestate proceeding, ordered the issuance of a notice to creditors and set the intestate proceeding for hearing on April 1 and 2, 1974. The lower court did not abrogate its prior orders of June 18 and October 15, 1973. The notice to creditors was issued on April 1, 1974 and published on May 2, 9 and 16 in the Davao Star in spite of petitioner's motion of April 17, 1974 that its publication be held in abeyance. Felix Balanay, Jr., through a new counsel, Roberto M. Sarenas, in a verified motion dated April 15, 1974, asked for the reconsideration of the lower court's order of February 28, 1974 on the ground that Atty. Montaa had no authority to withdraw the petition for the allowance of the will. Attached to the motion was a copy of a letter dated March 27, 1974 addressed to Atty. Montaa and signed by Felix Balanay, Jr., Beatriz V. Solamo, Carolina B. Manguiob and Emilia B. Pabaonon, wherein they terminated Montaa's services and informed him that his withdrawal of the petition for the probate of the will was without their consent and was contrary to their repeated reminder to him that their mother's will was "very sacred" to them. Avelina B. Antonio and Delia B. Lanaban opposed the motion for reconsideration. The lower court denied the motion in its order of June 29, 1974. It clarified that it declared the will void on the basis of its own independent assessment of its provisions and not because of Atty. Montaa's arguments. 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 vs. Nuguid, 64 O.G. 1527, 17 SCRA 449. Compare with Sumilang vs. Ramagosa, L-23135, December 26, 1967, 21 SCRA 1369; Cacho vs. Udan, L-19996, April 30, 1965, 13 SCRA 693).1wph1.t But the probate court erred in declaring, in its order of February 28, 1974 that the will was void and in converting the testate proceeding into an intestate proceeding notwithstanding the fact that in its order of June 18, 1973 , it gave effect to the surviving husband's conformity to the will and to his renunciation of his hereditary rights which presumably included his one-half share of the conjugal estate. The rule is that "the invalidity of one of several dispositions contained in a will does not result in the invalidity of the other dispositions, unless it is to be presumed that the testator would not have made such other dispositions if the first invalid disposition had not been made" (Art. 792, Civil Code). "Where some of the provisions of a will are valid and others invalid, the valid parts will be upheld if they can be separated from the invalid without defeating the intention of the testator or interfering with the general testamentary scheme, or doing injustice to the beneficiaries" (95 C.J.S. 873). The statement of the testatrix that she owned the "southern half of the conjugal lands is contrary to law because, although she was a coowner thereof, her share was inchoate and proindiviso (Art. 143, Civil Code; Madrigal and Paterno vs. Rafferty and Concepcion, 38 Phil. 414). But That illegal declaration does not nullify the entire will. It may be disregarded. The provision of the will that the properties of the testatrix should not be divided among her heirs during her husband's lifetime but should be kept intact and that the legitimes should be paid in cash is contrary to article 1080 of the Civil Code which reads: ART. 1080. Should a person make a partition of his estate by an act inter vivos, or by will, such partition shall be respected, insofar as it does not prejudice the legitime of the compulsory heirs. A parent who, in the interest of his or her family, to keep any agricultural, industrial, or manufacturing enterprise intact, may avail himself of the right granted him in this article, by ordering that the legitime of the other children to whom the property is not assigned be paid in cash. (1056a)

The testatrix in her will made a partition of the entire conjugal estate among her six children (her husband had renounced his hereditary rights and his one-half conjugal share). She did not assign the whole estate to one or more children as envisaged in article 1080. Hence, she had no right to require that the legitimes be paid in cash. On the other hand, her estate may remain undivided only for a period of twenty years. So, the provision that the estate should not be divided during her husband's lifetime would at most be effective only for twenty years from the date of her death unless there are compelling reasons for terminating the coownership (Art. 1083, Civil Code). Felix Balanay, Sr. could validly renounce his hereditary rights and his one-half share of the conjugal partnership (Arts. 179[1] and 1041, Civil Code) but insofar as said renunciation partakes of a donation of his hereditary rights and his one-half share in the conjugal estate (Art. 1060[1] Civil Code), it should be subject to the limitations prescribed in articles 750 and 752 of the Civil Code. A portion of the estate should be adjudicated to the widower for his support and maintenance. Or at least his legitime should be respected. Subject to the foregoing observations and the rules on collation, the will is intrinsically valid and the partition therein may be given effect if it does not prejudice the creditors and impair the legitimes. The distribution and partition would become effective upon the death of Felix Balanay, Sr. In the meantime, the net income should be equitably divided among the children and the surviving spouse. It should be stressed that by reason of the surviving husband's conformity to his wife's will and his renunciation of his hereditary rights, his onehalf conjugal share became a part of his deceased wife's estate. His conformity had the effect of validating the partition made in paragraph V of the will without prejudice, of course, to the rights of the creditors and the legitimes of the compulsory heirs. Article 793 of the Civil Code provides that "property acquired after the making of a will shall only pass thereby, as if the testator had it at the time of making the will, should it expressly appear by the will that such was his intention". Under article 930 of the Civil Code "the legacy or devise of a thing belonging to another person is void, if the testator erroneously believed that the thing pertained to him. But if the thing bequeathed, though not belonging to the testator when he made the will, afterwards becomes his, by whatever title, the disposition shall take effect." In the instant case there is no doubt that the testatrix and her husband intended to partition the conjugal estate in the manner set forth in paragraph V of her will. It is true that she could dispose of by will only her half of the conjugal estate (Art. 170, Civil Code) but since the husband, after the dissolution of the conjugal partnership, had assented to her testamentary partition of the conjugal estate, such partition has become valid, assuming that the will may be probated. The instant case is different from the Nuguid case, supra, where the testatrix instituted as heir her sister and preterited her parents. Her will was intrinsically void because it preterited her compulsory heirs in the direct line. Article 854 of the Civil Code provides that "the preterition or omission of one, some, or all of the compulsory heirs in the direct line, whether living at the time of the execution of the will or born after the death of the testator, shall annul the institution of heir; but the devises and legacies, shall be valid insofar as they are not inofficious." Since the preterition of the parents annulled the institution of the sister of the testatrix and there were no legacies and devises, total intestacy resulted (.Art. 960[2], Civil Code).1wph1.t In the instant case, the preterited heir was the surviving spouse. His preterition did not produce intestacy. Moreover, he signified his conformity to his wife's will and renounced his hereditary rights. . It results that the lower court erred in not proceeding with the probate of the will as contemplated in its uncancelled order of June 18, 1973. Save in an 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. Generally, the probate of the will is mandatory (Art. 838, Civil Code; Guevara vs. Guevara, 74 Phil. 479 and 98 Phil. 249; Fernandez vs. Dimagiba, L-23638, October 12, 1967, 21 SCRA 428). As aptly stated by Mr. Justice Barredo, "the very existence of a purported testament is in itself prima facie proof that the supposed testator has willed that his estate should be distributed in the manner therein provided, and it is incumbent upon the state that, if legally tenable, such desire be given effect independent of the attitude of the parties affected thereby" (Resolution, Vda. de Precilla vs. Narciso, L-27200, August 18, 1972, 46 SCRA 538, 565). To give effect to the intention and wishes of the testatrix is the first and principal law in the matter of testaments (Dizon-Rivera vs. Dizon, L24561, June 30, 1970, 33 SCRA 554, 561). Testacy is preferable to intestacy. An interpretation that will render a testamentary disposition operative takes precedence over a construction that will nullify a provision of the will (Arts. 788 and 791, Civil Code). Testacy is favored. Doubts are resolved in favor of testacy especially where the will evinces an intention on the part of the testator to dispose of practically his whole estate. So compelling is the principle that intestacy should be avoided and that the wishes of the testator should prevail that sometimes the language of the will can be varied for the purpose of giving it effect (Austria vs. Reyes, L-23079, February 27, 1970, 31 SCRA 754, 762). As far as is legally possible, the expressed desire of the testator must be followed and the dispositions of the properties in his will should be upheld (Estorque vs. Estorque, L-19573, June 30, 1970, 33 SCRA 540, 546). The law has a tender regard for the wishes of the testator as expressed in his will because any disposition therein is better than that which the law can make (Castro vs. Bustos, L-25913, February 28, 1969, 27 SCRA 327, 341). Two other errors of the lower court may be noticed. It erred in issuing a notice to creditors although no executor or regular administrator has been appointed. The record reveals that it appointed a special administrator. A notice to creditors is not in order if only a special administrator

has been appointed. Section 1, Rule 86 of the Rules of Court, in providing that "immediately after granting letters of testamentary or of administration, the court shall issue a notice requiring all persons having money claims against the decedent to file them in the office of the clerk of said court" clearly contemplates the appointment of an executor or regular administrator and not that of a special administrator. It is the executor or regular administrator who is supposed to oppose the claims against the estate and to pay such claims when duly allowed (See. 10, Rule 86 and sec. 1, Rule 88, Rules of Court). We also take this occasion to point out that the probate court's appointment of its branch clerk of court as special administrator (p. 30, Rollo) is not a salutary practice because it might engender the suspicion that the probate Judge and his clerk of court are in cahoots in milking the decedent's estate. Should the branch clerk of court commit any abuse or devastavit in the course of his administration, the probate Judge might find it difficult to hold him to a strict accountability. A court employee should devote his official time to his official duties and should not have as a sideline the administration of a decedent's estate. WHEREFORE, the lower court's orders of February 28, and June 29, 1974 are set aside and its order of June 18, 1973, setting for hearing the petition for probate, is affirmed. The lower court is directed to conduct further proceedings in Special Case No. 1808 in consonance with this opinion. Costs, against the private respondents. SO ORDERED. OCTAVIO S. MALOLES II, petitioner, vs. PACITA DE LOS REYES PHILLIPS, respondent. OCTAVIO S. MALOLES II, petitioner, vs. COURT OF APPEALS, HON. FERNANDO V. GOROSPE, JR., in his Official Capacity as Presiding Judge of RTC-Makati, Branch 61, and PACITA PHILLIPS as the alleged executrix of the alleged will of the late Dr. Arturo de Santos, respondents. MENDOZA, J.: These are petitions for review on certiorari of the decisions of the Thirteenth and the Special Eighth Divisions of the Court of Appeals which ruled that petitioner has no right to intervene in the settlement of the estate of Dr. Arturo de Santos. The cases were consolidated considering that they involve the same parties and some of the issues raised are the same. The facts which gave rise to these two petitions are as follows: On July 20, 1995, Dr. Arturo de Santos, Filipino and a resident of Makati City, filed a petition for probate of his will in the Regional Trial Court, Branch 61, Makati, docketed as Sp. Proc. No. M-4223. In his petition, Dr. De Santos alleged that he had no compulsory heirs; that he had named in his will as sole legatee and devisee the Arturo de Santos Foundation, Inc.; that he disposed by his will his properties with an approximate value of not less than P2,000,000.00; and that copies of said will were in the custody of the named executrix, private respondent 2 Pacita de los Reyes Phillips. A copy of the will was annexed to the petition for probate. On February 16, 1996, Judge Fernando V. Gorospe, Jr. of RTC-Makati, Branch 61 issued an order granting the petition and allowing the will. The order reads: On 03 August 1995, the Court issued an Order setting the hearing of the petition on 12 September 1995, at 8:30 o'clock in the morning, copies of which were served to Arturo de Santos Foundation, Inc. and Ms. Pacita de los Reyes Phillips (Officer's Return, dated 04 September 1995 attached to the records). When the case was called for hearing on the date set, no oppositor appeared nor any written opposition was ever filed and on motion of petitioner, he was allowed to adduce his evidence in support of the petition. Petitioner personally appeared before this Court and was placed on the witness stand and was directly examined by the Court through "free wheeling" questions and answers to give this Court a basis to determine the state of mind of the petitioner when he executed the subject will. After the examination, the Court is convinced that petitioner is of sound and disposing mind and not acting on duress, menace and undue influence or fraud, and that petitioner signed his Last Will and Testament on his own free and voluntary will and that he was neither forced nor influenced by any other person in signing it. Furthermore, it appears from the petition and the evidence adduced that petitioner in his lifetime, executed his Last Will and Testament (Exhs. "A", "A-1", "A-2", "A-4", "A-5") at his residence situated at 9 Bauhinia corner Intsia Streets, Forbes Park, Makati City; said Last Will and Testament was signed in the presence of his three (3) witnesses, namely, to wit: Dr. Elpidio Valencia (Exhs. "A-6", "A-7", "A-8", "A-16", "A-16A"), Atty. Edward J. Berenguer (Exhs. "A-3", "A-3-A", "A-9", "A-10", & "A-11"), and Atty. Victoria C. delos Reyes (Exhs. "A-12", "A-13", "A-14", "A-17", & "A-18"), who in turn, in the presence of the testator and in the presence of each and all of the witnesses signed the said Last Will and Testament and duly notarized before Notary Public Anna Melissa L. Rosario (Exh. "A-15"); on the actual execution of the Last Will and Testament, pictures were taken (Exhs. "B" to "B-3"). Petitioner has no compulsory heirs and Arturo de Santos Foundation, Inc., with address at No. 9 Bauhinia corner Intsia Streets, Forbes Park, Makati City has been named as sole legatee and devisee of petitioner's properties, real and personal, approximately valued at not less than P2 million, Ms. Pacita de los Reyes Phillips was designated as executor and to serve as such without a bond.1wphi1.nt From the foregoing facts, the Court finds that the petitioner has substantially established the material allegations contained in his petition. The Last Will and Testament having been executed and attested as required by law; that testator at the time of the execution of the will was of sane mind and/or not mentally incapable to make a Will; nor was it executed under duress or under the influence of fear or threats; that it was in writing and executed in the language known and understood by the testator duly subscribed thereof and attested and subscribed by three (3)1

credible witnesses in the presence of the testator and of another; that the testator and all the attesting witnesses signed the Last Will and Testament freely and voluntarily and that the testator has intended that the instrument should be his Will at the time of affixing his signature thereto. WHEREFORE, as prayed for by the petitioner (testator himself) the petition for the allowance of the Last Will and Testament of Arturo de Santos is hereby APPROVED and ALLOWED. Shortly after the probate of his will, Dr. De Santos died on February 26, 1996. On April 3, 1996, petitioner Octavio S. Maloles II filed a motion for intervention claiming that, as the only child of Alicia de Santos (testator's sister) and Octavio L. Maloles, Sr., he was the sole full-blooded nephew and nearest of kin of Dr. De Santos. He likewise alleged that he was a creditor of the testator. Petitioner thus prayed for the reconsideration of the order allowing the will and the issuance of letters of administration in his name. On the other hand, private respondent Pacita de los Reyes Phillips, the designated executrix of the will, filed a motion for the issuance of letters testamentary with Branch 61. Later, however, private respondent moved to withdraw her motion. This was granted, while petitioner was 3 required to file a memorandum of authorities in support of his claim that said court (Branch 61) still had jurisdiction to allow his intervention. Petitioner filed his memorandum of authorities on May 13, 1996. On the other hand, private respondent, who earlier withdrew her motion for the issuance of letters testamentary in Branch 61, refiled a petition for the same purpose with the Regional Trial Court, Makati, which was docketed as Sp. Proc. No. M-4343 and assigned to Branch 65. Upon private respondent's motion, Judge Salvador Abad Santos of Branch 65 issued an order, dated June 28, 1996, appointing her as special administrator of Dr. De Santos's estate. On July 29, 1996, petitioner sought to intervene in Sp. Proc. No. M-4343 and to set aside the appointment of private respondent as special administrator. He reiterated that he was the sole and full blooded nephew and nearest of kin of the testator; that he came to know of the existence of Sp. Proc. No. M-4343 only by accident; that the probate proceedings in Sp. Proc. No. M-4223 before Branch 61 of the same court was still pending; that private respondent misdeclared the true worth of the testator's estate; that private respondent was not fit to be the special administrator of the estate; and that petitioner should be given letters of administration for the estate of Dr. De Santos. On August 28, 1996, Judge Abad Santos ordered the transfer of Sp. Proc. No. M-4343 to Branch 61, on the ground that "[it] is related to the case before Judge Gorospe of RTC Branch 61 . . ." It appears, however, that in Sp. Proc. No. M-4223, Judge Gorospe had denied on August 26, 1996 petitioner's motion for intervention. 4 Petitioner brought this matter to the Court of Appeals which, in a decision promulgated on February 13, 1998, upheld the denial of petitioner's motion for intervention. Meanwhile, Judge Gorospe issued an order, dated September 4, 1996, returning the records of Sp. Proc. No. M-4343 to Branch 65 on the ground that there was a pending case involving the Estate of Decedent Arturo de Santos pending before said court. The order reads: Acting on the ORDER dated 28 August 1996 of Branch 65, this Court, transferring this case to this Branch 61 on the ground that this case is related with a case before this Court, let this case be returned to Branch 65 with the information that there is no related case involving the ESTATE OF DECEDENT ARTURO DE SANTOS pending before this Branch. There is, however, a case filed by ARTURO DE SANTOS, as petitioner under Rule 76 of the Rules of Court for the Allowance of his will during his lifetime docketed as SP. PROC. NO. M-4223 which was already decided on 16 February 1996 and has become final. It is noted on records of Case No. M-4223 that after it became final, herein Petitioner Pacita de los Reyes Phillips filed a MOTION FOR THE ISSUANCE OF LETTERS TESTAMENTARY, which was subsequently withdrawn after this Court, during the hearing, already ruled that the motion could not be admitted as the subject matter involves a separate case under Rule 78 of the Rules of Court, and movant withdrew her motion and filed this case (No. 4343). Octavio de Santos Maloles [II] filed a MOTION FOR INTERVENTION before Case No. M-4223 and this motion was already DENIED in the order (Branch 61) of 26 August 1996 likewise for the same grounds that the matter is for a separate case to be filed under Rule 78 of the Rules of Court and cannot be included in this case filed under Rule 76 of the Rules of Court. It is further noted that it is a matter of policy that consolidation of cases must be approved by the Presiding Judges of the affected Branches. Initially, in his decision dated September 23, 1996, Judge Abad Santos appeared firm in his position that " . . . it would be improper for (Branch 65) to hear and resolve the petition (Sp. Proc. No. M-4343)," considering that the probate proceedings were commenced with Branch 61. He thus ordered the transfer of the records back to the latter branch. However, he later recalled his decision and took cognizance of the case "to expedite the proceedings." Thus, in his Order, dated October 21, 1996, he stated: Considering the refusal of the Hon. Fernando V. Gorospe, Jr. of Branch 61 to continue hearing this case notwithstanding the fact that said branch began the probate proceedings of the estate of the deceased and must therefore continue to exercise its jurisdiction to the exclusion of5

all others, until the entire estate of the testator had been partitioned and distributed as per Order dated 23 September 1996, this branch (Regional Trial Court Branch 65) shall take cognizance of the petition if only to expedite the proceedings, and under the concept that the Regional Trial Court of Makati City is but one court. Furnish a copy of this order to the Office of the Chief justice and the Office of the Court Administrator, of the Supreme Court; the Hon. Fernando V. Gorospe, Jr.; Pacita De Los Reyes Phillips, Petitioner; and Octavio de Santos Maloles, Intervenor. On November 4, 1996, Judge Abad Santos granted petitioner's motion for intervention. Private respondent moved for a reconsideration but her motion was denied by the trial court. She then filed a petition for certiorari in the Court of Appeals which, on February 26, 1997, rendered a 6 decision setting aside the trial court's order on the ground that petitioner had not shown any right or interest to intervene in Sp. Proc. No. M4343. Hence, these petitions which raise the following issues: 1. Whether or not the Honorable Regional Trial Court Makati, Branch 61 has lost jurisdiction to proceed with the probate proceedings upon its issuance of an order allowing the will of Dr. Arturo de Santos. 2. Whether or not the Honorable (Regional Trial Court Makati, Branch 65) acquired jurisdiction over the petition for issuance of letters testamentary filed by (private) respondent. 3. Whether or not the petitioner, being a creditor of the late Dr. Arturo de Santos, has a right to intervene and oppose the petition for issuance of letters testamentary filed by the respondent. 4. Whether or not (private) respondent is guilty of forum shopping in filing her petition for issuance of letters testamentary with the Regional Trial Court Makati, Branch 65 knowing fully well that the probate proceedings involving the same restate estate of the decedent is still pending with the Regional Trial Court Makati, Branch 61. First. Petitioner contends that the probate proceedings in Branch 61 of RTC-Makati did not terminate upon the iss