LAW 311: SPECIAL PROCEEDINGS RULE 76

Republic of the Philippines husband’s lifetime but should be kept intact and that the legitimes should be paid
SUPREME COURT in cash is contrary to article 1080 of the Civil Code. ... The testatrix in her will made
Manila 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
SECOND DIVISION  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 20 years.
G.R. No. L-39247 June 27, 1975

Same; Same; Renunciation of inheritance by widower subject to limitation

In the Matter of the Petition to Approve the Will of Leodegaria Julian. FELIX
for his support and maintenance and preservation of his legitime.—Felix
BALANAY, JR., petitioner,
Balanay, Sr. could validly renounce his hereditary rights and his one-half share of
vs.
the conjugal partnership but insofar as said renunciation partakes of a donation of
HON. ANTONIO M. MARTINEZ, Judge of the Court of First Instance of Davao,
his hereditary rights and his one-half share in the conjugal estate, it should be
Branch VI; AVELINA B. ANTONIO and DELIA B. LANABAN, respondents.
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
Roberto M. Sarenas for petitioner. maintenance. Or at least his legitime should be respected.
Jose B. Guyo for private respondents.
Same; Same; Husband’s renunciation of hereditary rights and share in
Special proceedings; Testate succession; Probate court may pass upon conjugal estate make these assets part of testator’s estate, but without
intrinsic validity of a will before passing upon its formal validity.—The trial prejudice to creditors and other heirs.—It should be stressed that by reason of
court acted correctly in passing upon the will’s intrinsic validity even before its the surviving husband’s conformity to his wife’s will and his renunciation of his
formal validity had been established. The probate of a will might become an idle hereditary rights, his one-half conjugal share became a part of his deceased wife’s
ceremony if on its face it appears to be intrinsically void. Where practical estate. His conformity had the effect of validating the partition made in paragraph V
considerations demand that the intrinsic validity of the will be passed upon, even of the will without prejudice, of course, to the rights of the creditors and the
before it is probated, the court should meet the issue. legitimes of the compulsory heirs.

Same; Same; Invalidity of one testamentary disposition does not necessarily Same; Same; Preterition of surviving spouse who conformed thereto does
invalidate all other dispositions made therein.—The rule is that “the invalidity of not produce intestacy.—In the instant case, the preterited heir was the surviving
one of several dispositions contained in a will does not result in the invalidity of the spouse. His preterition did not produce intestacy. Moreover, he signified his
other dispositions, unless it is to be presumed that the testator would not have conformity to his wife’s will and renounced his hereditary rights.
made such other dispositions if the first invalid disposition had not been made” (Art
792, Civil Code).
Same; Same; Testacy is prefereable to intestacy.—Testacy is favored. Doubts
are resolved in favor of testacy especially where the will evinces an intention on
Same; Same; Statement that testator owns “southern half of conjugal state the part of the testator to dispose of practically his whole estate. So compelling is
is contrary to law because spouses are proindiviso owners thereof.—The the principle that intestacy should be avoided and that the wishes of the testator
statement of the testatrix that she owned the “southern half” of the conjugal lands should prevail that sometimes the language of the will can be varied for the
is contrary to law because, although she was a coowner thereof, her share was purpose of giving it effect.
inchoate and proindiviso (Art. 143, Civil Code). But that illegal declaration does not
nullify the entire will. It may be disregarded.
Same; Same; Probate court should not issue notice to creditors if only
special administrator has been appointed.—A notice to creditors is not in order
Same; Same; Provision in a will that testator’s estate be kept intact and if only a special administrator has been appointed. Section 1, Rule 86 x x x clearly
legitimes of heirs be paid in cash is contrary to Art. 1080 of Civil Code where contemplates the appointment of an executor or regular administrator and not that
whole estate was not assigned to one or more heirs.—The provision of the will of a special administrator.
that the properties of the testatrix should not be divided among her heirs during her

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LAW 311: SPECIAL PROCEEDINGS RULE 76
AQUINO, J.: 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.
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 Avelina B. Antonio, an oppositor, in her rejoinder contended that the affidavit and
his mother, Leodegaria Julian, converting the testate proceeding into an intestate "conformation" of Felix Balanay, Sr. were void. The lower court in its order of June
proceeding and ordering the issuance of the corresponding notice to creditors 18, 1973 "denied" the opposition and reset for hearing the probate of the will. It
(Special Case No. 1808). The antecedents of the appeal are as follows: 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
Leodegaria Julian, a native of Sta. Maria, Ilocos Sur, died on February 12, 1973 in the decedent's estate.
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 Mrs. Antonio moved for the reconsideration of the lower court's order of June 18,
B. Antonio, Beatriz B. Solamo, Carolina B. Manguiob, Delia B. Lanaban and Emilia 1973 on the grounds (a) that the testatrix illegally claimed that she was the owner
B. Pabaonon. 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,
Felix J. Balanay, Jr. filed in the lower court a petition dated February 27, 1973 for Jr., through his counsel, Hermenegildo Cabreros, opposed that motion. The lower
the probate of his mother's notarial will dated September 5, 1970 which is written court denied it in its order of October 15, 1973.
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 In the meanwhile, another lawyer appeared in the case. David O. Montaña, Sr.,
two parcels of land which she inherited from her father (par. III), and (c) that it was claiming to be the lawyer of petitioner Felix Balanay, Jr. (his counsel of record was
her desire that her properties should not be divided among her heirs during her Atty. Cabreros), filed a motion dated September 25, 1973 for "leave of court to
husband's lifetime and that their legitimes should be satisfied out of the fruits of her withdraw probate of alleged will of Leodegaria Julian and requesting authority to
properties (Par. IV). proceed by intestate estate proceeding." In that motion Montaña claimed to be the
lawyer not only of the petitioner but also of Felix Balanay, Sr., Beatriz B. Solamo,
Then, in paragraph V of the will she stated that after her husband's death (he was Carolina B. Manguiob and Emilia B. Pabaonon.
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 Montaña in his motion assailed the provision of the will which partitioned the
manner set forth in that part of her will. She devised and partitioned the conjugal conjugal assets or allegedly effected a compromise of future legitimes. He prayed
lands as if they were all owned by her. She disposed of in the will her husband's that the probate of the will be withdrawn and that the proceeding be converted into
one half share of the conjugal assets. * an intestate proceeding. In another motion of the same date he asked that the
corresponding notice to creditors be issued.
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 Avelina B. Antonio and Delia B. Lanaban, through Atty. Jose B. Guyo, in their
husband and alleged improper partition of the conjugal estate. The oppositors comments dated October 15, 1973 manifested their conformity with the motion for
claimed that Felix Balanay, Jr. should collate certain properties which he had the issuance of a notice to creditors. They prayed that the will be declared void for
received from the testatrix. being contrary to law and that an intestacy be declared.

Felix Balanay, Jr., in his reply to the opposition, attached thereto an affidavit of The lower court, acting on the motions of Atty. Montaña, assumed that the
Felix Balanay, Sr. dated April 18, 1973 wherein he withdrew his opposition to the issuance of a notice to creditors was in order since the parties had agreed on that
probate of the will and affirmed that he was interested in its probate. On the same point. It adopted the view of Attys. Montaña and Guyo that the will was void. So, in
date Felix Balanay, Sr. signed an instrument captioned "Conformation (sic) of its order of February 28, 1974 it dismissed the petition for the probate, converted
Division and Renunciation of Hereditary Rights" wherein he manifested that out of the testate proceeding into an intestate proceeding, ordered the issuance of a
respect for his wife's will he "waived and renounced' his hereditary rights in her notice to creditors and set the intestate proceeding for hearing on April 1 and 2,
estate in favor of their six children. In that same instrument he confirmed the 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,

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LAW 311: SPECIAL PROCEEDINGS RULE 76
9 and 16 in the Davao Star in spite of petitioner's motion of April 17, 1974 that its disposition had not been made" (Art. 792, Civil Code). "Where some of the
publication be held in abeyance. 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
Felix Balanay, Jr., through a new counsel, Roberto M. Sarenas, in a verified interfering with the general testamentary scheme, or doing injustice to the
motion dated April 15, 1974, asked for the reconsideration of the lower court's beneficiaries" (95 C.J.S. 873).
order of February 28, 1974 on the ground that Atty. Montaña had no authority to
withdraw the petition for the allowance of the will. Attached to the motion was a The statement of the testatrix that she owned the "southern half of the conjugal
copy of a letter dated March 27, 1974 addressed to Atty. Montaña and signed by lands is contrary to law because, although she was a co-owner thereof, her share
Felix Balanay, Jr., Beatriz V. Solamo, Carolina B. Manguiob and Emilia B. was inchoate and proindiviso  (Art. 143, Civil Code; Madrigal and Paterno vs.
Pabaonon, wherein they terminated Montaña's services and informed him that his Rafferty and Concepcion, 38 Phil. 414). But That illegal declaration does not nullify
withdrawal of the petition for the probate of the will was without their consent and the entire will. It may be disregarded.
was contrary to their repeated reminder to him that their mother's will was "very
sacred" to them. 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
Avelina B. Antonio and Delia B. Lanaban opposed the motion for reconsideration. the legitimes should be paid in cash is contrary to article 1080 of the Civil Code
The lower court denied the motion in its order of June 29, 1974. It clarified that it which reads:
declared the will void on the basis of its own independent assessment of its
provisions and not because of Atty. Montaña's arguments. 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
The basic issue is whether the probate court erred in passing upon the intrinsic as it does not prejudice the legitime of the compulsory heirs.
validity of the will, before ruling on its allowance or formal validity, and in declaring
it void. A parent who, in the interest of his or her family, to keep any
agricultural, industrial, or manufacturing enterprise intact, may
We are of the opinion that in view of certain unusual provisions of the will, which avail himself of the right granted him in this article, by ordering that
are of dubious legality, and because of the motion to withdraw the petition for the legitime of the other children to whom the property is not
probate (which the lower court assumed to have been filed with the petitioner's assigned be paid in cash. (1056a)
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 The testatrix in her will made a partition of the entire conjugal estate among her six
might become an idle ceremony if on its face it appears to be intrinsically void. children (her husband had renounced his hereditary rights and his one-half
Where practical considerations demand that the intrinsic validity of the will be conjugal share). She did not assign the whole estate to one or more children as
passed upon, even before it is probated, the court should meet the issue (Nuguid envisaged in article 1080. Hence, she had no right to require that the legitimes be
vs. Nuguid, 64 O.G. 1527, 17 SCRA 449. Compare with Sumilang vs. Ramagosa, paid in cash. On the other hand, her estate may remain undivided only for a period
L-23135, December 26, 1967, 21 SCRA 1369; Cacho vs. Udan, L-19996, April 30, of twenty years. So, the provision that the estate should not be divided during her
1965, 13 SCRA 693).1äwphï1.ñët 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
But the probate court erred in declaring, in its order of February 28, 1974 that the (Art. 1083, Civil Code).
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 Felix Balanay, Sr. could validly renounce his hereditary rights and his one-half
surviving husband's conformity to the will and to his renunciation of his hereditary share of the conjugal partnership (Arts. 179[1] and 1041, Civil Code) but insofar as
rights which presumably included his one-half share of the conjugal estate. 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
The rule is that "the invalidity of one of several dispositions contained in a will does limitations prescribed in articles 750 and 752 of the Civil Code. A portion of the
not result in the invalidity of the other dispositions, unless it is to be presumed that estate should be adjudicated to the widower for his support and maintenance. Or
the testator would not have made such other dispositions if the first invalid at least his legitime should be respected.

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LAW 311: SPECIAL PROCEEDINGS RULE 76
Subject to the foregoing observations and the rules on collation, the will is It results that the lower court erred in not proceeding with the probate of the will as
intrinsically valid and the partition therein may be given effect if it does not contemplated in its uncancelled order of June 18, 1973. Save in an extreme case
prejudice the creditors and impair the legitimes. The distribution and partition where the will on its face is intrinsically void, it is the probate court's duty to pass
would become effective upon the death of Felix Balanay, Sr. In the meantime, the first upon the formal validity of the will. Generally, the probate of the will is
net income should be equitably divided among the children and the surviving mandatory (Art. 838, Civil Code; Guevara vs. Guevara, 74 Phil. 479 and 98 Phil.
spouse. 249; Fernandez vs. Dimagiba, L-23638, October 12, 1967, 21 SCRA 428).

It should be stressed that by reason of the surviving husband's conformity to his As aptly stated by Mr. Justice Barredo, "the very existence of a purported
wife's will and his renunciation of his hereditary rights, his one-half conjugal share testament is in itself prima facie  proof that the supposed testator has willed that his
became a part of his deceased wife's estate. His conformity had the effect of estate should be distributed in the manner therein provided, and it is incumbent
validating the partition made in paragraph V of the will without prejudice, of course, upon the state that, if legally tenable, such desire be given effect independent of
to the rights of the creditors and the legitimes of the compulsory heirs. the attitude of the parties affected thereby" (Resolution, Vda. de Precilla vs.
Narciso, L-27200, August 18, 1972, 46 SCRA 538, 565).
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, To give effect to the intention and wishes of the testatrix is the first and principal
should it expressly appear by the will that such was his intention". Under article law in the matter of testaments (Dizon-Rivera vs. Dizon, L-24561, June 30, 1970,
930 of the Civil Code "the legacy or devise of a thing belonging to another person 33 SCRA 554, 561). Testacy is preferable to intestacy. An interpretation that will
is void, if the testator erroneously believed that the thing pertained to him. But if the render a testamentary disposition operative takes precedence over a construction
thing bequeathed, though not belonging to the testator when he made the will, that will nullify a provision of the will (Arts. 788 and 791, Civil Code).
afterwards becomes his, by whatever title, the disposition shall take effect."
Testacy is favored. Doubts are resolved in favor of testacy especially where the
In the instant case there is no doubt that the testatrix and her husband intended to will evinces an intention on the part of the testator to dispose of practically his
partition the conjugal estate in the manner set forth in paragraph V of her will. It is whole estate. So compelling is the principle that intestacy should be avoided and
true that she could dispose of by will only her half of the conjugal estate (Art. 170, that the wishes of the testator should prevail that sometimes the language of the
Civil Code) but since the husband, after the dissolution of the conjugal partnership, will can be varied for the purpose of giving it effect (Austria vs. Reyes, L-23079,
had assented to her testamentary partition of the conjugal estate, such partition February 27, 1970, 31 SCRA 754, 762).
has become valid, assuming that the will may be probated.
As far as is legally possible, the expressed desire of the testator must be followed
The instant case is different from the Nuguid  case, supra, where the testatrix and the dispositions of the properties in his will should be upheld (Estorque vs.
instituted as heir her sister and preterited her parents. Her will was intrinsically void Estorque, L-19573, June 30, 1970, 33 SCRA 540, 546).
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 The law has a tender regard for the wishes of the testator as expressed in his will
compulsory heirs in the direct line, whether living at the time of the execution of the because any disposition therein is better than that which the law can make (Castro
will or born after the death of the testator, shall annul the institution of heir; but the vs. Bustos, L-25913, February 28, 1969, 27 SCRA 327, 341).
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 Two other errors of the lower court may be noticed. It erred in issuing a notice to
there were no legacies and devises, total intestacy resulted (.Art. 960[2], Civil creditors although no executor or regular administrator has been appointed. The
Code).1äwphï1.ñët 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
In the instant case, the preterited heir was the surviving spouse. His preterition did the Rules of Court, in providing that "immediately after granting letters of
not produce intestacy. Moreover, he signified his conformity to his wife's will and testamentary or of administration, the court shall issue a notice requiring all
renounced his hereditary rights. . 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.

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LAW 311: SPECIAL PROCEEDINGS RULE 76
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.

Fernando (Chairman), Barredo, Antonio and Concepcion, Jr., JJ., concur.

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