GALLANOSA V. ARCANGEL, 83 SCRA 676 (1978)

DOCTRINE: Article 838 of the Code requires probate as a condition precedent for the effectivity of a will. Probate is limited to a determination of two issues: one, the testamentary capacity of the testator, and two, the due execution of the will. Testamentary capacity has two components: first, the soundness of mind of the testator, and second, the requisite age. Due execution refers to the compliance with the formal requisites prescribed by law. If the proponents of the will are able to prove testamentary capacity and due execution, the probate judge will forthwith issue and order admitting the will to probate. Once the probate order becomes final, the testamentary capacity of the testator and the due execution of the will becomes incontestable. Res judicata will apply to any attempt to reopen and or revisit the issues of testamentary capacity and due execution.

Gallanosa illustrates the inevitable result of an attempt to reopen probate proceedings long after the probate order has become final. It is important to note the present procedural laws do not permit nor sanction the institution of an action for the “annulment” of a will.

FACTS: Florentino Histosis executed a will in the Bicol dialect on June 19, 1938 when he was 80yrs. old. He died a childless widower on May 26, 1939 at Irosin, Sorsogon. He was survived by his brother Leon Hitosis, his other brothers and sisters were all dead.

1. June 24, 1939 – a petition for probate of his will was filed. 2. In that will, Florentino bequeathed his ½ share in the conjugal estate to his second

wife, Tecla Dollentas, and, should Tecla predeceased him, as was the case, his ½ share would be assigned to the sps. Pedro Gallanosa and Corazon Grecia, the reason being that Pedro, Tecla’s son by her first mearraige grew up under the care of Florentino and he had treated Pedro as his foster child, and Pedro has rendered services to Florentino and Tecla. Florentino also bequeathed his separate properties of parcels of land of abaca land and Riceland to his protégé, Adolfo Fortajada, a minor.

3. Oppostion to the probate of the will was registered by the testator’s legal heirs, his surviving brother, nephews and nieces.

4. October 27, 1939 – the court rendered its decision, admitting the will to probate and appointed Gallanosa as executor.

5. October 24, 1941 – the testamentary heirs, spouses Gallanosa and Fortajada, submitted a project of partition covering 61 parcels of land.

6. March 13, 1943 – the project partition was approved by Judge Doroteo Amador. The testator’s legal heirs did not appeal form the decree of probate and from the order of partition and distribution.

7. February 20, 1952 – Leon and the other legal heirs instituted an action against Pedro Gallanosa fot the recovery of the said 61 parcels of land

8. August 14, 1952 – Judge Anatolio C. Mañalac dismissed the complaint on the ground of res judicata. The legal heirs did not appeal from that order of dismissal.

9. September 21, 1967 – 15 yrs after the the dismissal of the previous action for recovery and 28 yrs after the probate of the will, the oppositors filed another action for the annulment of the will of Florentino Histosis, alleging that that there

was fraud and deceit in the execution of the document purporting to be the last and testament of Florentino Histosis.

10. The 1967 complaint upon motion of the defendants was dismissed by the respondent judge. On motion for reconsideration, respondent judge granted it and set aside the order of dismissal.

ISSUE: WON the private respondent have a cause of action for the “annulment of the will of Florentino Histosis and for the recovery of the 61 parcel of land adjudicated under that will to the petitioners.

HELD: NoThe lower court committed a grave abuse of discretion in reconsidering its order of dismissal and in ignoring the 1939 testamentary case and the 1952 case, which is the same as the instant 1967 case.

What the plaintiff seeks is the annulment of a last will and testament duly probated in 1939 by the lower court itself. The proceeding is coupled with an action to recover the lands adjudicated to the testamentary heirs by the same court in 1943 by virtue of the probated will, which action is a resuscitation of the complaint of the same parties that the same court dismissed in 1952.

It is evident from the allegations of the complaint and from the defendants’ motion to dismiss that plaintiffs’ 1967 action is barred by res judicata. The defense of res judicata, as a ground for the dismissal of plaintiffs’ 1967 complaint, is a two- pronged defense because (1) the 1939 and 1943 decrees of probate and distribution and (2) the 1952 order of dismissal of the lower court constitute bars by former judgment.

The 1939 decree of probate is conclusive as to the due execution or formal alidity of the will. After the finality of the allowance of a will, the issue as to the voluntariness its execution cannot be raised anymore. In Austria v. Ventenilla, a petition for annulment of a will was not entertained after the decree of probate had become final.

It is fundamental concept in the organization of every jural system, a principle of public policy that the risk of occasional errors, judgments of courts should become final at some definite date fixed by law. Interest rei publicae ut finis sit litum. “the very object of which the courts were constituted was to put an end to controversies.

JIMENEZ V. INTERMEDIATE APPELLATE COURT, 184 SCRA 367 (1990)

DOCTRINE: The probate court, as a rule, cannot pass with finality on issues affecting ownership of property. Jimenez holds that this limitation applies also to proceedings in intestacy where an intestate court can only pass upon on issues of title on a provisional basis only. And despite a ruling of the intestate court on the matter, the parties are not barred by res judicata from instituting a separate and subsequent action to thresh out the matter.

FACTS: The marriage of Leonardo (Lino) Jimenez and Consolacion Ungson produced 4 children, namely Alberto, Leonardo, Sr. Alejandra and Angeles. During the existence of the marriage, Lino Jimenez acquired 5 parcels of land in Pangasinan.

1. After the death of Consolacion Ungson, Lino married Genoveva Caolboy with whom he begot the 7 petitioners.

2. Lino died on Aug. 11, 1951 while Genoveva died on Nov. 21, 1978. 3. April 1979, Virginia Jimenez (Virginia) filed a petition praying to be appointed as

the administratrix of the properties of the deceased spouses Lino and Genoveva. Enumerated in her petition were the supposed heirs of the spouses, which included herein co-petitioners and the four children of the union of Lino and Consolacion.

4. October, 1979 - Private respondent Leonardo Jimenez, Jr. (Leonardo Jr.) son of Leonardo Jimenez Sr., file a motion for the exclusion of his father’s name and those of Alberto, Alejandra and Angeles from the petition, as they are children of the union of Lino and Consolacion and not of Lino and Genoveva and because they have already received heir inheritance consisting of 5 parcel of lands in Pangasinan.

5. March 23, 1981 - Petitioner Virginia was appointed administrator of the Intestate Estate of Lino and Genoveva.

6. May 21, 191 - She filed an inventory of the estate of the spouses Lino and Genoveva including 5 parcels of land in Pangasinan.

7. Leonardo Jr. moved for the exclusion of these properties from the inventory on the ground that these had already been adjudicated to Leonardo Sr., Alberto, Alejandra and Angeles by their deceased father Lino.

8. September 29, 1981 - The probate court ordered the exclusion of the 5 parcels of land from the inventory. On appeal the CA dismissed the petition for the annulment of order of the probate court dated in September 29, 1981, because Genoveva had admitted that the subject parcel of land had been adjudicated to the children of the previous nuptial; and the subject properties could not have been acquired during the marriage of Lino to Genoveva because they were already titled in the name of Lino even prior to Lino and Genoveva’s marriage.

9. 2 years after, petitioner filed an amended complaint to recover the possession/ownership of the subject 5 parcel of land as part of the estate of Lino and Genoveva and to order private respondents to render the accounting of the produce. The private respondents moved to for the dismissal of the complaint on the grounds that the action was barred by prior judgment and by prescription and laches.

10. On the other hand the petitioner contend that the action was not barred by prior judgment because the probate court had no jurisdiction to determine with finality the question of ownership of the lots which must be ventilated in a separate action; and the action instituted in 1981 was not barred by prescription or laches because private respondents’ forcible acquisition pf the subject properties occurred only after the death of petitioner’s mother, Genoveva in 1978.

11. The trial court dismissed the complaint on the ground of res judicata. On appeal, IAC likewise dismissed the said complaint.

ISSUE: WON in a settlement proceeding, the lower court has jurisdiction to settle questions of ownership and whether res judicata exist to bar petitioner’s present action for the recovery of possession and ownership of the 5 parcel of land.

HELD: NoPetitioners' present action for recovery of possession and ownership is appropriately filed because as a general rule, a probate court can only pass upon questions of title provisionally. Since the probate court's findings are not conclusive, being prima facie, a separate proceeding is necessary to establish the ownership of the five (5) parcels of land.

The patent reason is the probate court's limited jurisdiction and the principle that questions of title or ownership, which result in inclusion or exclusion from the inventory of the property, can only be settled in a separate action.

It has been held that in a special proceeding for the probate of a will, the question of ownership is an extraneous matter which the probate court cannot resolve with finality. This pronouncement no doubt applies with equal force to an intestate proceeding as in the case at bar.

Res judicata does not exist because of the difference in the causes of actions. Specifically in Sp. No. 5346, is an action was for the settlement of the intestate estate of Lino Jimenez and Genoveva Caolboy, while Civil Case No. 16111 was an action for the recovery of possession and ownership of the five (5) parcels of land. While admittedly, the CFI of Pangasinan had jurisdiction, the same was merely limited jurisdiction. Any pronouncement by said court as to title is not conclusive and could still be attacked in a separate proceeding. Civil Case No. 16111, on the other hand, was lodged before the Regional Trial Court of Pangasinan, in the exercise of the court's general jurisdiction, in the determination of the issue of ownership of the disputed properties. Since the determination of the question of title to the subject properties in Sp. No. 5346 was merely provisional, petitioners are not barred from instituting the appropriate action in Civil Case No. 16111.

ORTEGA V. VALMONTE, 478 SCRA 247 (2005)

DOCTRINE: Ortega discusses two issues: (i) how to prove the fact of fraud in the making of the will; and (ii) what constitutes a sound and disposing mind.

FACTS: Placido toiled and lived for a long time in the United States until he finally reached retirement. In 1980, Placido finally came home to stay in the Philippines and lived in the house located at San Antonio Village, Makati, which he owned in common with his sister Ciriaca Valmonte.

1. Two years after his arrival from the United States and at the age of 80 he wed Josefina who was then 28 years old. But in a little more than two years of wedded bliss, Placido died on October 8, 1984 of a cause written down as COR PULMONALE.

2. Placido executed a notarial last will and testament written in English and consisting of two (2) pages, and dated June 15, 19893 but acknowledged only on August 9, 1983. The will contained provisions bequeathing Placido’s properties to his Wife Josefina and appointing her as sole executrix of his last will and testament, and that said executrix be exempt from filing a bond.

3. The allowance to probate of this will was opposed by Leticia and she also opposed the appointment as Executrix of Josefina, alleging her want of understanding and integrity.

4. The petitioner Josefina testified and called as witnesses the notary public, Atty. Floro Sarmiento who prepared and notarized the will, and the instrumental witnesses spouses Eugenio Gomez, Jr. and Feliza Gomez and Josie Collado. For the opposition, the oppositor Leticia and her daughter Mary Jane Ortega testified.

5. According to Josefina, she had no knowledge of the existence of the last will and testament of her husband, but just serendipitously found it in his attaché case after his death. It was only then that she learned that the testator bequeathed to her his properties and she was named the executrix in the said will.

6. Notary Public Floro Sarmiento, the notary public who notarized the testator’s will, testified that it was in the first week of June 1983 when the testator together with the three witnesses of the will went to his house cum law office and requested him to prepare his last will and testament. Sarmiento explained that though it appears that the will was signed by the testator and the witnesses on June 15, 1983, the day when it should have been executed had he not gone out of town, the formal execution was actually on August 9, 1983. He reasoned that he no longer changed the typewritten date of June 15, 1983 because he did not like the document to appear dirty. The attesting witnesses to the will corroborated the testimony of the notary public.

7. The oppositor Leticia declared that Josefina should not inherit alone because aside from her there are other children from the siblings of Placido who are just as entitled to inherit from him. She attacked the mental capacity of the testator, declaring that at the time of the execution of the notarial will the testator was already 83 years old and was no longer of sound mind.The court held that the evidence adduced, reduces the opposition to two grounds, (1) Non-compliance with the legal solemnities and formalities in the execution and attestation of the will; and (2) Mental incapacity of the

testator at the time of the execution of the will as he was then in an advanced state of senility. The trial court disallowed the probate.

8. The appellate court admitted the will of Placido Valmonte to probate. The CA upheld the credibility of the notary public and the subscribing witnesses who had acknowledged the due execution of the will.

ISSUE: 1. WON the signature of Placido Valmonte was procured thru fraud2. WON Placido Valmonte has testamentary capacity at the time he allegedly executed

the will.

HELD: Petition has no merit.

PROBATE OF WILL: The fact that public policy favors the probate of a will does not necessarily mean that every will presented for probate should be allowed. The law lays down the procedures and requisites that must be satisfied for the probate of a will. Verily, Article 839 of the Civil Code states the instances when a will may be disallowed.

EXISTENCE OF FRAUD IN THE EXECUTION OF A WILL Petitioner does not dispute the due observance of the formalities in the execution of the will, but maintains that the circumstances surrounding it are indicative of the existence of fraud. Particularly, she alleges that respondent, who is the testator’s wife and sole beneficiary, conspired with the notary public and the three attesting witnesses in deceiving Placido to sign it. Deception is allegedly reflected in the varying dates of the execution and the attestation of the will.

Fraud “is a trick, secret device, false statement, or pretence, by which the subject of it is cheated. It may be of such character that the testator is misled or deceived as to the nature or contents of the document which he executed, or it may relate to some extrinsic fact, in consequence of the deception regarding which the testator is led to make a certain will which, but for the fraud, he would not have made. the party challenging the will bears the burden of proving the existence of fraud at the time of its execution. The burden to show otherwise shifts to the proponent of the will only upon a showing of credible evidence of fraud. the party challenging the will bears the burden of proving the existence of fraud at the time of its execution. The burden to show otherwise shifts to the proponent of the will only upon a showing of credible evidence of fraud.

It is a settled doctrine that the omission of some relatives does not affect the due execution of a will. That the testator was tricked into signing it was not sufficiently established by the fact that he had instituted his wife, who was more than fifty years his junior, as the sole beneficiary, and disregarded petitioner and her family, who were the ones who had taken cared of the testator in his twilight years.

The conflict between the dates appearing on the will does not invalidate the document, “because the law does not even require that a (notarial) will x x x be executed and acknowledged on the same occasion.” Petitioner failed to substantiate her claim of a “grand

conspiracy” in the commission of fraud, There was no showing that the witnesses of the proponent stood to receive any benefit from the allowance of the will. The testimonies of the three subscribing witnesses and the notary are credible evidence of its due execution. Their testimony favoring it and the finding that it was executed in accordance with the formalities required by law should be affirmed, absent any showing of ill motives.

CAPACITY TO MAKE A WILL According to Article 799, the three things that the testator must have the ability to know to be considered of sound mind are as follows: (1) the nature of the estate to be disposed of; (2) the proper objects of the testator’s bounty; and (3) the character of the testamentary act. Applying this test to the present case, the appellate court was correct in holding that Placido had testamentary capacity at the time of the execution of his will.

It must be noted that despite his advanced age, he was still able to identify accurately the kinds of property he owned, the extent of his shares in them, and even their locations. As regards the proper objects of his bounty, it was sufficient that he identified his wife as sole beneficiary. The omission of some relatives from the will did not affect its formal validity. There being no showing of fraud in its execution, intent in its disposition becomes irrelevant.

AUSTRIA V. REYES, 31 SCRA 754 (1970)

DOCTRINE: The statement of a false cause in the institution of heirs shall be disregarded, unless it is proved that the testator would not have made such institution had he been properly appraised of the truth. Aside from the fact that the false cause must be stated in the will, the opponents of the will are likewise mandated to prove by substantial evidence that the testator would not have made such a disposition had he known the true state of affairs. Therefore, inferences and conjectures are not sufficient to invalidate a provision which is challenged as one made on the basis of a false cause.

Please note that the false cause which led the testator to make a particular testamentary disposition is treated in the same way as a mistake, which in contract law, vitiates consent.

FACTS: On July 7, Basilia Austria vda. de Cruz filed with the CFI of Rizal a petition for probate, ante mortem, of her last will and testament. The probate was opposed by the petitioners, Ruben Austria, Consuelo Austria-Benta and Lauro Austria Mozo and still others who, like petitioner are nephew and nieces of Basilia. The opposition was dismissed and the probate of the will allowed after due hearing.

1. The bulk of the estate of Basilia, was destined under the will to pass on to respondents Perfecto Cruz, Benita Cruz-Meñez, Isagani Cruz, Alberto Cruz, and Luz Cruz – Salonga, all of whom had been assumed and declared by Basilia as her own legally adopted children.

2. April 23, 1959 – two years after the probate was allowed Basilia died. Perfecto Cruz was appointed as executor without bond in accordance with the provisions of the decedent’s will.

3. November 5, 1959 – Petitioner filed in the same proceedings a petition in intervention for partition alleging in substance that they are the nearest of kin of Basilia, and that the five respondents, Perfecto Cruz, et.al, had not fact been adopted by the decedent in accordance with law. The court then allowed the said intervention by petitioners which the court delimited to the properties of the deceased which were not disposed of in the will and disregarded the matter of the genuineness of adoption.

4. Upon denial of two motions for reconsiderations, the petitioners filed before the Supreme Court a petition for certiorari praying for the annulment of the lower court’s orders restricting their intervention.

ISSUE: WON the institution of heirs would retain efficacy in the event there exists proof that the adoption of the same heirs by the decedent is false.

HELD: NoArticle 850 of the Civil Code provides:

The statement of a false cause for the institution of an heir shall be considered as not written, unless it appears from the will that the testator would not have made such institution if he had known the falsity of such cause.

Before the institution of heirs may be annulled under article 850 of the Civil Code, the following requisites:

1. The cause for the institution of heirs must be stated in the will2. The cause must be shown to be false3. It must appear from the face of the will that the testator would not have made such

institution if he had known the falsity of the cause

Even if Basilia have used the terms “sapilitang mana” and sapilitang tagapagmana” there is no indication that had she known that the respondents were not her adopted disposition of the free portion was largely at Basilia’s discretion and she had given a large part to the respondents while giving a relatively small legacy in favor of the petitioners. The decedent’s will does not state in a specific or unequivocal manner the cause for such institution of heirs. The Court cannot annul the same on the basis of guesswork or uncertain implications.

Article 850 of the Civil Code is positive injunction to ignore whatever false cause the testator may have written in his will for the institution of heirs. Such institution may be annulled only when one is satisfied, after an examination of the will, that the testator clearly would not have made the institution of he had known the cause for it to be false.

Testacy is favored and doubts are resolved on its side, especially where the will evinces an intention on the part of the testator to dispose of practically his whole estate. Moreover, so compelling is the principle that intestacy should be avoided and the wishes of the testator allowed to prevail, that we could even vary the language of the will for the purpose of giving it effect.

The legality of the adoption of the respondents by the testatrix can be assailed only in a separate action brought for that purpose and cannot be th subject of a collateral attack.

BALANAY, JR. V. MARTINEZ, 64 SCRA 454 (1975)

DOCTRINE: Balanay stresses the jurisdiction of the probate court. Unless the nullity of the will is patent on its face, the probate court should first pass upon the extrinsic validity of the will before passing upon its substantive validity. Hence, the distinction between this case and Nuguid

Upon the other hand, while the court correctly modified the husband's right to waive his hereditary right with respect to the estate of the deceased spouse, and his right to waive his half share in the conjugal estate, pursuant to the provisions of Articles 750 and 752 of the Civil Code, the court was silent on the validity of the husband's conformity to the distribution of the conjugal estate in accordance with the terms of the will of the wife. Obviously, the court assumed the validity of the renunciation of the husband of his share in the conjugal estate. Such waiver, however, may fall into one of two possible categories, i.e., inter vivos or mortis causa. If it was a waiver effective inter vivos, then it would have amounted to a donation to inter vivos to the wife. That would have been illegal under existing laws. On the other hand, if it was a waiver mortis causa, then the formalities of a will should have been observed, failing which, the waiver would be void. Furthermore, the waiver mortis causa would have required the wife to survive the husband. In either case, the alleged waiver by the husband of his half share in the conjugal estate resulted in a transmission of property to the wife. And consequently, a characterization of such waiver along the parameters mentioned above is necessary and inescapable. The fundamental question, therefore, that demands an answer is whether or not a husband or wife could waive his or her share in the conjugal estate in favor of the other by an act inter vivos. We exclude, however, a waiver resulting from a successful petition for separation of property, and the liquidation of the conjugal partnership (or for that matter, the absolute community of property) resulting from the issuance of a decree of annulment or a decree of nullity.

It may be surmised that the validity of the waiver had to be assumed, properly or improperly, otherwise the case will fall under the provision of Article 784 which categorically states that the making of a will is strictly a personal act, and that the exercise of testamentary discretion cannot be delegated by a person to another. In any case, Balanay leaves many questions unanswered. Let alone the fact that the decision did not discuss why the husband was not preterited within the meaning of Article 854.

FACTS: Felix Balanay Jr. Appelaed the order of the CFI, 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

1. 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, namely, Felix Balanay, Jr., Avelina B. Antonio, Beatriz B. Solamo, Carolina B. Manguiob, Delia B. Lanaban and Emilia B. Pabaonon.

2. Felix J. Balanay, Jr. filed in the lower court a petition.for the probate of his mother's notarial will.

3. 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.

4. 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.

5. Felix Balanay, Jr. attached 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.

6. 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.

7. Another lawyer appeared in the case, Atty. David O. Montana, claiming to be the lawyer of petitioner Felix Balanay, Jr. 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." Avelina B. Antonio and Delia B. Lanaban, thorugh Atty. Jose B. Guyo, manifested their conformity with the motion for the issuance of a notice to the creditor.

8. The lower court, acting on the motions of Atty. Montana and Atty. Guyo assumed that the issuance of a notice to creditors was in order. It adopted the view of Attys. Montana and Guyo that the will was void. It dismissed the petition for probate and converted the testate proceeding into an intestate proceeding.

9. 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. Montana had no authority to withdraw the petition for the allowance of the will.

ISSUE: WON the probate court erred in passing upon the intrinsic validity of the will, before ruling on its allowance or formal validity, and in declaring the will void.

HELD: 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.

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"

The statement of the testatrix that she owned the "southern half" of the conjugal lands is contrary to law because, although she was a co-owner thereof, her share was inchoate and pro indiviso (Art. 143, Civil Code). But that illegal declaration does not nullify the entire will.

Felix Balanay, Sr. could validly renounce his hereditary rights and his one-half share of the conjugal partnership (Art. 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. 1050(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.

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 one-half 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 the will shall only pass thereby, as if the testator had possessed 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 of 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 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. 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.

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.