G.R. No. L-7188 August 9, 1954In re: Will and Testament of the deceased REVEREND SANCHO ABADIA.SEVERINA A. VDA. DE ENRIQUEZ, ET AL.,petitioners-appellees,vs.MIGUEL ABADIA, ET AL.,oppositors-appellants.Manuel A. Zosa, Luis B. Ladonga, Mariano A. Zosa and B. G. Advincula for appellants.C. de la Victoria for appellees.MONTEMAYOR,J.:On September 6, 1923, Father Sancho Abadia, parish priest of Talisay, Cebu, executed a document purporting to be his Last Will and Testament now marked Exhibit "A". Resident of the City of Cebu, he died on January 14, 1943, in the municipality of Aloguinsan, Cebu, where he was an evacuee. He left properties estimated at P8,000 in value. On October 2, 1946, one Andres Enriquez, one of the legatees in Exhibit "A", filed a petition for its probate in the Court of First Instance of Cebu. Some cousins and nephews who would inherit the estate of the deceased if he left no will, filed opposition.During the hearing one of the attesting witnesses, the other two being dead, testified without contradiction that in his presence and in the presence of his co-witnesses, Father Sancho wrote out in longhand Exhibit "A" in Spanish which the testator spoke and understood; that he (testator) signed on he left hand margin of the front page of each of the three folios or sheets of which the document is composed, and numbered the same with Arabic numerals, and finally signed his name at the end of his writing at the last page, all this, in the presence of the three attesting witnesses after telling that it was his last will and that the said three witnesses signed their names on the last page after the attestation clause in his presence and in the presence of each other. The oppositors did not submit any evidence.The learned trial court found and declared Exhibit "A" to be a holographic will; that it was in the handwriting of the testator and that although at the time it was executed and at the time of the testator's death, holographic wills were not permitted by law still, because at the time of the hearing and when the case was to be decided the new Civil Code was already in force, which Code permitted the execution of holographic wills, under a liberal view, and to carry out the intention of the testator which according to the trial court is the controlling factor and may override any defect in form, said trial court by order dated January 24, 1952, admitted to probate Exhibit "A", as the Last Will and Testament of Father Sancho Abadia. The oppositors are appealing from that decision; and because only questions of law are involved in the appeal, the case was certified to us by the Court of Appeals.The new Civil Code (Republic Act No. 386) under article 810 thereof provides that a person may execute a holographic will which must be entirely written, dated and signed by the testator himself and need not be witnessed. It is a fact, however, that at the time that Exhibit "A" was executed in 1923 and at the time that Father Abadia died in 1943, holographic wills were not permitted, and the law at the time imposed certain requirements for the execution of wills, such as numbering correlatively each page (not folio or sheet) in letters and signing on the left hand margin by the testator and by the three attesting witnesses, requirements which were not complied with in Exhibit "A" because the back pages of the first two folios of the will were not signed by any one, not even by the testator and were not numbered, and as to the three front pages, they were signed only by the testator.Interpreting and applying this requirement this Court in the case of In re Estate of Saguinsin, 41 Phil., 875, 879, referring to the failure of the testator and his witnesses to sign on the left hand margin of every page, said:. . . . This defect is radical and totally vitiates the testament. It is not enough that the signatures guaranteeing authenticity should appear upon two folios or leaves; three pages having been written on, the authenticity of all three of them should be guaranteed by the signature of the alleged testatrix and her witnesses.And in the case ofAspe vs. Prieto, 46 Phil., 700, referring to the same requirement, this Court declared:From an examination of the document in question, it appears that the left margins of the six pages of the document are signed only by Ventura Prieto. The noncompliance with section 2 of Act No. 2645 by the attesting witnesses who omitted to sign with the testator at the left margin of each of the five pages of the document alleged to be the will of Ventura Prieto, is a fatal defect that constitutes an obstacle to its probate.What is the law to apply to the probate of Exh. "A"? May we apply the provisions of the new Civil Code which not allows holographic wills, like Exhibit "A" which provisions were invoked by the appellee-petitioner and applied by the lower court? But article 795 of this same new Civil Code expressly provides: "The validity of a will as to its form depends upon the observance of the law in force at the time it is made." The above provision is but an expression or statement of the weight of authority to the affect that the validity of a will is to be judged not by the law enforce at the time of the testator's death or at the time the supposed will is presented in court for probate or when the petition is decided by the court but at the time the instrument was executed. One reason in support of the rule is that although the will operates upon and after the death of the testator, the wishes of the testator about the disposition of his estate among his heirs and among the legatees is given solemn expression at the time the will is executed, and in reality, the legacy or bequest then becomes a completed act. This ruling has been laid down by this court in the case of In re Will of Riosa, 39 Phil., 23. It is a wholesome doctrine and should be followed.Of course, there is the view that the intention of the testator should be the ruling and controlling factor and that all adequate remedies and interpretations should be resorted to in order to carry out said intention, and that when statutes passed after the execution of the will and after the death of the testator lessen the formalities required by law for the execution of wills, said subsequent statutes should be applied so as to validate wills defectively executed according to the law in force at the time of execution. However, we should not forget that from the day of the death of the testator, if he leaves a will, the title of the legatees and devisees under it becomes a vested right, protected under the due process clause of the constitution against a subsequent change in the statute adding new legal requirements of execution of wills which would invalidate such a will. By parity of reasoning, when one executes a will which is invalid for failure to observe and follow the legal requirements at the time of its execution then upon his death he should be regarded and declared as having died intestate, and his heirs will then inherit by intestate succession, and no subsequent law with more liberal requirements or which dispenses with such requirements as to execution should be allowed to validate a defective will and thereby divest the heirs of their vested rights in the estate by intestate succession. The general rule is that the Legislature can not validate void wills (57 Am. Jur., Wills, Sec. 231, pp. 192-193).In view of the foregoing, the order appealed from is reversed, and Exhibit "A" is denied probate. With costs.Paras, C.J., Pablo, Bengzon, Padilla, Reyes, A., Jugo, Bautista Angelo, Labrador, Concepcion and Reyes J.B.L., JJ.,concur.

G.R. No. L-5064 February 27, 1953BIENVENIDO A. IBARLE,plaintiff-appellant,vs.ESPERANZA M. PO,defendant-appellant.Quirico del Mar for appellant.Daniel P. Tumulak and Conchita F. Miel appellee.TUASON,J.:This action commenced in the Court of First Instance of Cebu to annul a deed of sale conveying to the defendant, in consideration of P1,700, one undivided half of a parcel of land which previously had been sold, along with the other half, by the same vendor to the plaintiff's grantors. judgment was against the plaintiff.The case was submitted for decision upon an agreed statement of facts, the pertinent parts of which are thus summarized in the appealed decision:1st. That Leonard j. Winstanley and Catalina Navarro were husband and wife, the former having died on June 6, 1946 leaving heir the surviving spouse and some minor children;2nd. hat upon the death of L.J. Winstanley, he left a parcel of land described under Transfer Certificate of title No. 2391 of the Registry of Deeds of the Province of Cebu;3rd. That the above mentioned property was a conjugal property;4th. That on April 15, 1946, the surviving spouse Catalina Navarro Vda. de Winstanley sold the entire parcel of land to the spouses Maria Canoy, alleging among other things, that she needed money for the support of her children;5th. That on May 24, 1947, the spouses Maria Canoy and Roberto Canoy sold the same parcel of land to the plaintiff in this case named Bienvenido A. Ebarle;6th. That the two deeds of sale referred to above were not registered and have never been registered up to the date;7th. That on January 17, 1948 surviving spouse Catalina Navarro Vda. de Winstanley, after her appointment as guardian of her children by this court (Special proceeding no. 212-R) sold one-half of the land mentioned above to Esperanza M. Po, defendant in the instant case, which portion belongs to the children of the above named spouses.As stated by the trial Judge, the sole question for determination is the validity of the sale to Esperanza M. Po, the last purchaser. This question in turn depends upon the validity of the prior ale to Maria Canoy and Roberto Canoy.Article 657 of the old Civil Code provides: "The rights to the succession of a person are transmitted from the moment of his death." in a slightly different language, this article is incorporated in the new Civil Code as article 777.Manresa, commending on article 657 of the Civil Code of Spain, says:The moment of death is the determining factor when the heirs acquire a definite right to the inheritance, whether such right be pure or contingent. It is immaterial whether a short or long period of time lapses between the death of the predecessor and the entry into possession of the property of the inheritance because the right is always deemed to be retroactive from the moment of death. (5 Manresa, 317.)The above provision and comment make it clear that when Catalina Navarro Vda. de Winstanley sold the entire parcel to the Canoy spouses, one-half of it already belonged to the seller's children. No formal or judicial declaration being needed to confirm the children's title, it follows that the first sale was null and void in so far as it included the children's share.On the other hand, the sale to the defendant having been made by authority of the competent court was undeniably legal and effective. The fact that it has not been recorded is of no consequence. If registration were necessary, still the non-registration would not avail the plaintiff because it was due to no other cause than his own opposition.The decision will be affirmed subject to the reservation, made in said decision, of the right of the plaintitff and/or the Canoy spouses to bring such action against Catalina Navarro Vda. de Winstanley as may be appropriate for such damages as they may have incurred by reason of the voiding of the sale in their favor.Paras, C.J., Feria, Pablo, Bengzon, Padilla, Montemayor, Reyes, Jugo, Bautista Angelo and Labrador, JJ.,concur.

G.R. No. L-55076 September 21, 1987MATILDE S. PALICTE,petitioner,vs.HON. JOSE O. RAMOLETE as Presiding Judge of Court of First Instance of Cebu, Branch III, and MARCELO SOTTO, Administrator,respondents.GUTIERREZ, JR.,J.:This is a petition for review on certiorari of the order of the then Court of First Instance of Cebu declaring the deed of redemption executed for the petitioner null and void and denying the petitioner's motion that the Registrar of Deeds of the City of Cebu be directed to transfer the Owner's Duplicate Certificates of Title to Lot Nos. 1049, 1051, and 1052 from Filemon Sotto to her and to issue a new Owner's Duplicate Certificate of Title to Lot 2179-C in her name.On July 5, 1979, a sale at public auction was held pursuant to a writ of execution issued on February 5, 1979 by the respondent judge and to a court order dated June 4, 1979 in the case of Pilar Teves, et al. vs Marcelo Sotto, Administrator, Civil Case No. R-10027, for the satisfaction of judgment in the amount of P725,270.00.The following properties belonging to the late Don Filemon Sotto and administered by respondent Marcelo Sotto were levied upon:1. Parcel of land on Lot No. 1049, covered by TCT No. 27640 of the Banilad Friar Lands Estate, Cebu City;2. Parcel of land on Lot No. 1052, covered by TCT No. 27642 of the Banilad Friar Lands Estate, Cebu City;3. Parcel of land on Lot No. 1051,covered by TCT No. 27641 of the Banilad Friad Lands Estate, Cebu City;4. Parcel of land on Lot No. 5253 of the Cebu Cadastre, Cebu City, covered by TCT No. 27639;5. Parcel of land situated at Mantalongon, Dalaguete, Cebu, covered by TD No. 010661, with an area of 76-708; (sic)6. Parcel of land on Lot No. 4839 of the Upon Cadastre, at Barrio Sa-ac Mactan Island, with an area of Forty Four Thousand Six Hundred Forty Four (44,644) square meters more or less;7. Residential House of strong materials, situated on a Government lot at Lahug, Cebu City;8. Residential House of strong materials, situated at Central, Cebu City. " (Rollo, p. 40)Seven of the above-described properties were awarded to Pilar Teves, who alone bid for them for the amount of P217,300.00.The residential house situated on a government lot at Lahug, Cebu City, was awarded to lone bidder Asuncion Villarante for the amount of P10,000.00.Within the period for redemption, petitioner Matilde S. Palicte, as one of the heirs of the late Don Filemon Sotto, redeemed from purchaser Pilar Teves, four (4) lots for the sum of P60,000.00.A deed of redemption dated July 29, 1980, executed by Deputy Provincial Sheriff Felipe V. Belandres and approved by the Clerk of Court, Esperanza Garcia as Ex-Officio Sheriff, was issued for these lots:1. A parcel of land or Lot No. 2179-C-PDI-25027 Cebu Cadastre, Cebu City, bid at P20,000.00;2. A parcel of land or Lot No. 1052, covered by TCT No. 27642, of the Banilad Friar Lands Estate, Cebu City, bid at P15,000.00;3. A parcel of land or Lot No.1051,covered by TCT No. 27641, of the Banilad Friar Lands Estate, Cebu City, at P5,000.00;4. A parcel of land or Lot No. 1049, covered by TCT No. 27640, of the Banilad Friar Lands Estate, Cebu City, at P20,000.00. (Rollo, p. 42)On July 24, 1980, petitioner Palicte filed a motion with respondent Judge Ramolete for the transfer to her name of the titles to the four (4) parcels of land covered by the deed of redemption.This motion was opposed by the plaintiffs in Civil Case No. R-10027, entitled "Pilar Teves, et al. vs Marcelo Sotto, administrator" on several grounds, principal among which, is that movant, Palicte, is not one of those authorized to redeem under the provisions of the Rules of Court.A hearing on the said motion, with both parties adducing evidence was held.The lower court held that although Palicte is one of the declared heirs in Spl. Proc. No. 2706-R, she does not qualify as a successor-in-interest who may redeem the real properties sold. It ruled that the deed of redemption is null and void. The motion of Palicte was denied.Hence, the present petition.The petitioner raises the following assignment of errors:ARESPONDENT JUDGE ERRED IN RULING THAT THE JUDGMENT DEBTOR ENTITLED TO REDEEM UNDER SECTION 29(a), RULE 39 OF THE REVISED RULES OF COURT REAL PROPERTY SOLD ON EXECUTION AGAINST THE ESTATE OF THE DECEDENT IS ONLY THE ADMINISTRATOR OF THE ESTATE, OR HIS SUCCESSOR-IN-INTEREST.BRESPONDENT JUDGE ERRED IN RULING THAT PETITIONER, WHO IS A DECLARED HEIR OF THE DECEDENT, IS NOT THE JUDGMENT DEBTOR NOR DOES SHE QUALIFY AS A SUCCESSOR-IN-INTEREST OF THE ADMINISTRATOR OF THE ESTATE ENTITLED TO RIGHT OF REDEMPTION UNDER SECTION 29(a), RULE 39 OF THE RULES OF COURT.CRESPONDENT JUDGE ERRED IN RULING THAT ALTHOUGH PETITIONER IS A DECLARED HEIR OF THE DECEDENT, HER RIGHT TO THE ESTATE, LIKE THAT OF REDEMPTION OF CERTAIN ESTATE PROPERTY, COULD ONLY ARISE AFTER DISTRIBUTION OF THE ESTATE AS THERE IS STILL JUDGMENT DEBT CHARGEABLE AGAINST THE ESTATE.DRESPONDENT JUDGE ERRED IN RULING THAT PETITIONER'S REDEMPTION OF FOUR (4) PARCELS OF LAND OF THE ESTATE OF THE DECEDENT SOLD ON EXECUTION OF JUDGMENT AGAINST THE ESTATE IS NULL AND VOID AND INEFFECTIVE. (Rollo, pp. 17-18)These assigned errors center on whether or not petitioner Palicte may validly exercise the right of redemption under Sec. 29, Rule 39 of the Rules of Court.We answer in the affirmative. Sec. 29 of Rule 39 provides:SEC. 29. Who may redeem real property so sold. Real property sold as provided in the last preceding section, or any part thereof sold separately, may be redeemed in the manner hereinafter provided, by the following persons:(a) The judgment debtor, or his successor in interest in the whole or any part of the property;(b) A creditor having a lien by attachment, judgment or mortgage on the property sold, or on some part thereof, subsequent to the judgment under which the property was sold. Such redeeming creditor is termed a redemptioner.Under Subsection (a), property sold subject to redemption may be redeemed by the judgment debtor or his successor-in-interest in the whole or any part of the property. Does Matilde Palicte fall within the term "successor-in-interest"?Magno vs Viola and Sotto(61 Phil. 80, 84-85) states that:The rule is that the term "successor-in-interest" includes one to whom the debtor has transferred his statutory right of redemption (Big Sespe Oil Co. vs Cochran, 276 Fed., 216, 223); one to whom the debtor has conveyed his interest in the property for the purpose of redemption (Southern California Lumber Co. vs. McDowell, 105 Cal, 99; 38 Pac., 627; Simpson vs. Castle, 52 Cal., 644; Schumacher vs. Langford, 20 Cal. App., 61; 127 Pac., 1057);one who succeeds to the interest of the debtor by operation of law(XI McKinney's California Jurisprudence, 99); one or more joint debtors who were joint owners of the property sold (Emerson vs. Yosemite Gold Min. etc. Co., 149 Cal., 50; 85 Pac., 122); the wife as regards her husband's homestead by reason of the fact that some portion of her husband' title passes to her (Hefner vs. Urton, 71 Cal., 479; 12 Pac., 486). This court has held that a surety can not redeem the property of the principal sold on execution because the surety, by paying the debt of the principal, stands in the place of the creditor, not of the debtor, and consequently is not a successor in interest in the property. (G. Urruitia & Co. vs. Moreno and Reyes, 28 Phil., 260, 268). (Emphasis supplied).In the case at bar, petitioner Palicte is the daughter of the late Don Filemon Sotto whose estate was levied upon on execution to satisfy the money judgment against it. She is one of the declared heirs in Special Proceeding No. 2706-R. As a legitimate heir, she qualifies as a successor-in- interest.Art. 777 of the Civil Code states that:The rights to the succession are transmitted from the moment of the death of the decedent.At the moment of the decedent's death, the heirs start to own the property, subject to the decedent's liabilities. In fact, they may dispose of the same even while the property is under administration. (Barretto vs. Tuason, 59 Phil. 845; Jakosalem vs. Rafols, 73 Phil. 628). If the heirs may dispose of their shares in the decedent's property even while it is under administration. With more reason should the heirs be allowed to redeem redeemable properties despite the presence of an administrator.The respondents contend that the petitioner must positively prove that the three other co-heirs, the administrator, and the intestate court had expressly agreed to the redemption of the disputed parcels of land. We see no need for such prior approval. While it may have been desirable, it is not indispensable under the circumstances of this case. What is important is that all of them acquiesced in the act of redeeming property for the estate. The petitioner contends that the administrator and the three other heirs agreed to the redemption. There is, however. no clear proof of such approval. What is beyond dispute from the records is that they did not disapprove nor reprobate the acts of the petitioner. There is likewise nothing in the records to indicate that the redemption was not beneficial to the estate of Don Filemon Sotto.It may be true that the interest of a specific heir is not yet fixed and determinate pending the order of distribution but, nonetheless, the heir's interest in the preservation of the estate and the recovery of its properties is greater than anybody else's, definitely more than the administrator's who merely holds it for the creditors, the heirs, and the legatees.The petitioner cites precedents where persons with inchoate or contingent interest were allowed to exercise the right of redemption as "successors-in-interest," e.g.Director of Lands vs. Lagniton(103 Phil. 889, 892) where a son redeemed the property of his parents sold on execution andRosete vs. Provincial Sheriff of Zambales(95 Phil. 560, 564), where a wife by virtue of what the Court called "inchoate right of dower or contingent interest" redeemed a homestead as successor-in-interest of her husband.In fact, the Court was explicit inLagnitonthat:... The right of a son, with respect to the property of a father or mother, is also an inchoate or contingent interest, because upon the death of the father or the mother or both, he will have a right to inherit said conjugal property. If any holder of an inchoate interest is a successor in interest with right to redeem a property sold on execution, then the son is such a successor in interest, as he has an inchoate right to the property of his father.The lower court, therefore, erred in considering the person of the administrator as the judgment debtor and as the only "successor-in-interest." The estate of the deceased is the judgment debtor and the heirs who will eventually acquire that estate should not be prohibited from doing their share in its preservation.Although petitioner Palicte validly redeemed the properties, her motion to transfer the titles of the four (4) parcels of land covered by the Deed of Redemption from registration in the name of Filemon Sotto to her name cannot prosper at this time.Otherwise, to allow such transfer of title would amount to a distribution of the estate.As held in the case ofPhilippine Commercial and Industrial Bank vs. Escolin(56 SCRA 267, 345- 346):Indeed, the law on the matter is specific, categorical and unequivocal. Section 1 of Rule 90 provides:SECTION 1. When order for distribution of residue made. When the debts, funeral charges, and expenses of administration, the allowance to the widow, and inheritance tax, if any, chargeable to the estate in accordance with law, have been paid, the court, on the application of the executor or administrator, or of a person interested in the estate, and after hearing upon notice, shall assign the residue of the estate to the persons entitled to the same, naming them and the proportions, or parts, to which each is entitled, and such persons may demand and recover their respective shares from the executor or administrator, or any other person having the same in his possession. If there is a controversy before the court as to who are the lawful heirs of the deceased person or as to the distributive shares to which each person is entitled under the law, the controversy shall be heard and decided as in ordinary cases.No distribution shall be allowed until the payment of the obligations above mentioned has been made or provided for, unless the distributees, or any of them, give a bond, in a sum to be fixed by the court, conditioned for the payment of said obligations within such time as the court directs.These provisions cannot mean anything less than that in order that a proceeding for the settlement of the estate of a deceased may be deemed ready for final closure, (1) there should have been issued already an order of distribution or assignment of the estate of the decedent among or to those entitled thereto by will or by law, but (2) such order shall not be issued until after it is shown that the "debts, funeral expenses, expenses of administration, allowances, taxes, etc., chargeable to the estate" have been paid, which is but logical and proper, (3) besides, such an order is usually issued upon proper and specific application for the purpose of the interested party or parties, and not of the court."The other heirs are, therefore, given a six months period to join as co-redemptioners in the redemption made by the petitioner before the motion to transfer titles to the latter's name may be granted.WHEREFORE, the petition is hereby GRANTED. The respondent court's orders declaring the deed of redemption null and void and denying the motion to transfer title over the redeemed properties to Matilda Palicte are REVERSED and SET ASIDE, subject to the right of the other heirs to join in the redemption as stated above.SO ORDERED.Fernan (Chairman), Feliciano, Bidin and Cortes, JJ., concur.

[G.R. No. 126950.July 2, 1999]NELSON NUFABLE, SILMOR NUFABLE and AQUILINA NUFABLEpetitioners,vs. GENEROSA NUFABLE, VILFOR NUFABLE, MARCELO NUFABLE, and the COURT OF APPEALS,respondents.D E C I S I O NGONZAGA-REYES,J.:This petition for review oncertiorariseeks to reverse and set aside the Decision dated November 25, 1995 of the Fifth Division[1]of the Court of Appeals for allegedly being contrary to law.The following facts as found by the Court of Appeals are undisputed:Edras Nufable owned an untitled parcel of land located at Poblacion, Manjuyod, Negros Oriental, consisting of 948 square meters, more or less.He died on August 9, 1965 and was survived by his children, namely: Angel Custodio, Generosa, Vilfor and Marcelo, all surnamed Nufable.Upon petition for probate filed by said heirs and after due publication and hearing, the then Court of First Instance of Negros Oriental (Branch II) issued an Order dated March 30, 1966 admitting to probate the last will and testament executed by the deceased Edras Nufable (Exhs. B, C and C-1).On June 6, 1966, the same court issued an Order approving the Settlement of Estate submitted by the heirs of the late Esdras Nufable, portions of which read:KNOW ALL MEN BY THESE PRESENTS:We, ANGEL CUSTODIO NUFABLE, GENEROSA NUFABLE, VILFOR NUFABLE, and MARCELO NUFABLE, all of legal ages (sic), Filipinos, and with residence and postal address at Manjuyod, Negros Oriental, Philippines,- HEREBY DECLARE AND MAKE MANIFEST -1.That on August 9, 1965, Rev. Fr. Esdras Nufable died leaving (a) Last Will and Testament (marked Exh. G) disposing (of) his properties or estate in favor of his four legitimate children, namely: Angel Custodio Nufable, Generosa Nufable, Vilfor Nufable and Marcelo Nufable;2.That on March 30, 1966, the said Last Will and Testament was probated by the Honorable Court, Court of First Instance of Negros Oriental, and is embodied in the same order appointing an Administratrix, Generosa Nufable, but to qualify only if she put up a necessary bond ofP1,000.00;3.That herein legitimate children prefer not to appoint an Administratrix, as agreed upon (by) all the heirs, because they have no objection as to the manner of disposition of their share made by the testator, the expenses of the proceedings and that they have already taken possession of their respective shares in accordance with the will;4.That the herein heirs agreed, as they hereby agree to settle the estate in accordance with the terms and condition of the will in the following manner, to wit:a)That the parcel of land situated in Poblacion Manjuyod, Negros Oriental remains undivided for community ownership but respecting conditions imposed therein (sic) in the will;xxxxxxxxx.(Exhs. E and E-1)Two months earlier, or on March 15, 1966, spouses Angel Custodio and Aquilina Nufable mortgaged the entire property located at Manjuyod to the Development Bank of the Philippines [DBP] (Pre-trial Order, dated January 7, 1992, p. 103, Original Records).Said mortgagors became delinquent for which reason the mortgaged property was foreclosed by DBP on February 26, 1973 (id.).On January 11, 1980, Nelson Nufable, the son of Angel Custodio Nufable (who died on August 29, 1978 [TSN, Testimony of Nelson Nufable, Hearing of August 18, 1992, p. 17]), purchased said property from DBP (Exh. 1).Generosa, Vilfor and Marcelo, all surnamed Nufable filed with the lower court a complaint dated July 25, 1985 To Annul Fraudulent Transactions, to Quiet Title and To Recover Damages against Nelson Nufable, and wife, Silnor Nufable and his mother Aquilina Nufable.Plaintiffs pray:WHEREFORE, plaintiffs pray this Honorable Court that after trial judgment be rendered ordering:(a)That the said Deed of Sale (Annex C) executed by the Development Bank of the Philippines in favor of the defendants be declared null and void as far as the three fourths () rights which belongs (sic) to the plaintiffs are concerned;'(b)That the said three fourths () rights over the above parcel in question be declared as belonging to the plaintiffs at one fourth right to each of them;(c)To order the defendants to pay jointly and severally to the plaintiffs by way of actual and moral damages the amount ofP10,000.00 and anotherP5,000.00 as Attorneys fees, and to pay the costs.(d)Plus any other amount which this Court may deem just and equitable.(p. 6, Original Records)In their Answer, defendants contend:4.Paragraph 4 is denied, the truth being that the late Angel Nufable was the exclusive owner of said property, that as such owner he mortgaged the same to the Development Bank of the Philippines on March 15, 1966, that said mortgage was foreclosed and the DBP became the successful bidder at the auction sale, that ownership was consolidated in the name of the DBP, and that defendant Nelson Nufable bought said property from the DBP thereafter.During this period, the plaintiffs never questioned the transactions which were public, never filed any third party claim nor attempted to redeem said property as redemptioners, and that said Deed of Sale, Annex B to the complaint, is fictitious, not being supported by any consideration; (pp. 20-21,id.)The Deed of Sale (Annex B), referred to by the parties is a notarized Deed of Sale, dated July 12, 1966 (marked as Exhibit H) by virtue of which, spouses Angel and Aquilina Nufable, as vendors, sold portion of the subject property to herein plaintiffs for and in consideration ofP1,000.00 (Exh. 5).[2]On November 29, 1995, the Court of Appeals rendered judgment, the dispositive portion[3]of which reads:WHEREFORE, the appealed decision of the lower court is REVERSED and SET ASIDE.A new judgment is hereby entered declaring plaintiffs-appellants as the rightful co-owners of the subject property and entitled to possession of southern portion thereof; and defendant-appellee Nelson Nufable to portion.No award on damages.No costs.Defendants-appellees Motion for Reconsideration was denied for lack of merit in the Resolution of the Court of Appeals[4]dated October 2, 1996.Hence, the present petition.Petitioners raise the following grounds for the petition:1.The Honorable Court of Appeals erred in considering as controlling the probate of the Last Will and Testament of Esdras Nufable, the probate thereof not being an issue in this case;2.The Honorable Court of Appeals erred in not considering the fact that the Development Bank of the Philippines became the absolute, exclusive, legal, and rightful owner of the land in question, from whom petitioner Nelson Nufable acquired the same by purchase and that, therefore, no award can be made in favor of private respondents unless and until the Development Bank of the Philippines title thereto is first declared null and void by the court.The Court of Appeals, in its decision, stated that the trial court failed to take into consideration the probated will of the late Esdras Nufable bequeathing the subject property to all his four children.[5]In the present petition, petitioners present the issue of whether or not the Last Will and Testament of Esdras Nufable and its subsequent probate are pertinent and material to the question of the right of ownership of petitioner Nelson Nufable who purchased the land in question from, and as acquired property of, the Development Bank of the Philippines (DBP, for short).They contend that the probate of the Last Will and Testament of Esdras Nufable did not determine the ownership of the land in question as against third parties.As a general rule, courts in probate proceedings are limited only to passing upon the extrinsic validity of the will sought to be probated, the due execution thereof, the testators testamentary capacity and the compliance with the requisites or solemnities prescribed by law.Said court at this stage of the proceedings is not called upon to rule on the intrinsic validity or efficacy of the provision of the will.[6]The question of the intrinsic validity of a will normally comes only after the court has declared that the will has been duly authenticated.The records show that upon petition for probate filed by the heirs of the late Esdras Nufable, an Order dated March 30, 1966 was issued by then Court of First Instance of Negros Oriental, Branch II, admitting to probate the last will and testament executed by the decedent.[7]Thereafter, on June 6, 1966, the same court approved the Settlement of Estate submitted by the heirs of the late Esdras Nufable wherein they agreed (T)hat the parcel land situated in Poblacion Manjuyod, Negros Oriental remains undivided for community ownership but respecting conditions imposed therein (sic) in the will.[8]In paragraph 3 thereof, they stated that they have no objection as to the manner of disposition of their share made by the testator, the expenses of the proceeding and that they have already taken possession of their respective shares in accordance with the will. Verily, it was the heirs of the late Esdras Nufable who agreed among themselves on the disposition of their shares.The probate court simply approved the agreement among the heirs which approval was necessary for the validity of any disposition of the decedents estate.[9]It should likewise be noted that the late Esdras Nufable died on August 9, 1965.When the entire property located at Manjuyod was mortgaged on March 15, 1966 by his son Angel Custodio with DBP, the other heirs of Esdras - namely: Generosa, Vilfor and Marcelo - had already acquired successional rights over the said property.This is so because of the principle contained in Article 777 of the Civil Code to the effect that the rights to the succession are transmitted from the moment of death of the decedent.Accordingly, for the purpose of transmission of rights, it does not matter whether the Last Will and Testament of the late Esdras Nufable was admitted on March 30, 1966 or thereafter or that the Settlement of Estate was approved on June 6, 1966 or months later.It is to be noted that the probated will of the late Esdras Nufable specifically referred to the subject property in stating that the land situated in the Poblacion, Manjuyod, Negros Oriental, should not be divided because this must remain in common for them, but it is necessary to allow anyone of them brothers and sisters to construct a house therein.[10]It was therefor the will of the decedent that the subject property should remain undivided, although the restriction should not exceed twenty (20) years pursuant to Article 870[11]of the Civil Code.Thus, when Angel Nufable and his spouse mortgaged the subject property to DBP on March 15, 1966, they had no right to mortgage the entire property.Angels right over the subject property was limited only to pro indivisoshare.As co-owner of the subject property, Angels right to sell, assign or mortgage is limited to that portion that may be allotted to him upon termination of the co-ownership.Well-entrenched is the rule that a co-owner can only alienate hispro indivisoshare in the co-owned property.[12]The Court of Appeals did not err in ruling that Angel Custodio Nufable had no right to mortgage the subject property in its entirety.His right to encumber said property was limited only to pro indivisoshare of the property in question.[13]Article 493 of the Civil Code spells out the rights of co-owners over a co-owned property.Pursuant to said Article, a co-owner shall have full ownership of his part and of the fruits and benefits pertaining thereto.He has the right to alienate, assign or mortgage it, and even substitute another person in its enjoyment.As a mere part owner, he cannot alienate the shares of the other co-owners.The prohibition is premised on the elementary rule that no one can give what he does not have.[14]Moreover, respondents stipulated that they were not aware of the mortgage by petitioners of the subject property.[15]This being the case, a co-owner does not lose his part ownership of a co-owned property when his share is mortgaged by another co-owner without the formers knowledge and consent[16]as in the case at bar.It has likewise been ruled that the mortgage of the inherited property is not binding against co-heirs who never benefitted.[17]Furthermore, the Deed of Sale dated June 17, 1966 marked as Exhibit H executed by spouses Angel and Aquilina Nufable in favor of respondents Generosa, Vilfor and Marcelo wherein the former sold, ceded and transferred back to the latter the portion of the subject property bolsters respondents claim that there was co-ownership.Petitioner Nelson himself claimed that he was aware of the aforesaid Deed of Sale.[18]Anent the second ground of the petition, petitioners allege that the Development Bank of the Philippines acquired ownership of the land in question through foreclosure, purchase and consolidation of ownership.Petitioners argue that if petitioner Nelson Nufable had not bought said land from the DBP, private respondents, in order to acquire said property, must sue said bank for the recovery thereof, and in so doing, must allege grounds for the annulment of documents evidencing the banks ownership thereof.Petitioners contend that since petitioner Nelson Nufable simply bought the whole land from the bank, they cannot be deprived of the ownership of without making any pronouncement as to the legality or illegality of the banks ownership of said land.It is argued that there was no evidence to warrant declaration of nullity of the banks acquisition of said land; and that neither was there a finding by the court that the bank illegally acquired the said property.As adverted to above, when the subject property was mortgaged by Angel Custodio, he had no right to mortgage the entire property but only with respect to his pro indivisoshare as the property was subject to the successional rights of the other heirs of the late Esdras.Moreover, in case of foreclosure, a sale would result in the transmission of title to the buyer which is feasible only if the seller can be in a position to convey ownership of the things sold.[19]And in one case,[20]it was held that a foreclosure would be ineffective unless the mortgagor has title to the property to be foreclosed.Therefore, as regards the remaining pro indivisoshare, the same was held in trust for the party rightfully entitled thereto,[21]who are the private respondents herein.Pursuant to Article 1451 of the Civil Code, when land passes by succession to any person and he causes the legal title to be put in the name of another, a trust is established by implication of law for the benefit of the true owner.Likewise, under Article 1456 of the same Code, if property is acquired through mistake or fraud, the person obtaining it is, by force of law, considered a trustee of an implied trust for the benefit of the person from whom the property comes.In the case of Noel vs. Court of Appeals,[22]this Court held that a buyer of a parcel of land at a public auction to satisfy a judgment against a widow acquired only one-half interest on the land corresponding to the share of the widow and the other half belonging to the heirs of her husband became impressed with a constructive trust in behalf of said heirs.Neither does the fact that DBP succeeded in consolidating ownership over the subject property in its name terminate the existing co-ownership.Registration of property is not a means of acquiring ownership.[23]When the subject property was sold to and consolidated in the name of DBP, it being the winning bidder in the public auction, DBP merely held the portion in trust for the private respondents.When petitioner Nelson purchased the said property, he merely stepped into the shoes of DBP and acquired whatever rights and obligations appertain thereto.This brings us to the issue of whether or not the DBP should have been impleaded as party-defendant in the case at bar.Petitioners contend that DBP was never impleaded and that due process requires that DBP be impleaded so that it can defend its sale to petitioner Nelson Nufable; and that it was the duty of private respondents, and not of petitioner Nelson, to implead the bank and ask for the annulment of documents evidencing the banks ownership of the disputed land.In the Rejoinder to the Reply, private respondents that the non-inclusion of DBP as a necessary party was not questioned by petitioners from the time the Complaint was filed until the case was finished. It was only after the adverse decision by the respondent Court of Appeals that petitioners raised the issue.At the outset, it should be stated that petitioners never raised this issue in their Answer and pursuant to Section 2, Rule 9 of the Rules of Court, defenses and objections not pleaded either in a motion to dismiss or in the answer are deemed waived.Nonetheless, the rule is that indispensable parties, i.e., parties in interest without whom no final determination can be had of an action, shall be joined either as plaintiffs or defendants; the inclusion as a party being compulsory.[24]On the other hand, in case of proper or necessary parties, i.e., persons who are not indispensable but ought to be parties if complete relief is to be accorded as between those already parties, the court may, in its discretion, proceed in the action without making such persons parties, and the judgment rendered therein shall be without prejudice to the rights of such persons.[25]Proper parties, therefore, have been described as parties whose presence is necessary in order to adjudicate the whole controversy, but whose interests are so far separable that a final decree can be made in their absence without affecting them.[26]Any claim against a party may be severed and proceeded with separately.[27]The pivotal issue to be determined is whether DBP is an indispensable party in this case.Private respondents do not question the legality of the foreclosure of the mortgaged property and the subsequent sale of the same to DBP.The subject property was already purchased by petitioner Nelson from DBP and the latter, by such sale, transferred its rights and obligations to the former.Clearly, petitioners interest in the controversy is distinct and separable from the interest of DBP and a final determination can be had of the action despite the non-inclusion of DBP as party-defendant.Hence, DBP, not being an indispensable party, did not have to be impleaded in this case.WHEREFORE, there being no reversible error in the decision appealed from, the petition for review oncertiorariis hereby DENIED.SO ORDERED.Vitug, Panganiban,andPurisima, JJ.,concur.Romero, J., (Chairman),on official business leave abroad.

SECOND DIVISION[G.R. No. 124099.October 30, 1997]MANUEL G. REYES, MILA G. REYES, DANILO G. REYES, LYN AGAPE, MARITES AGAPE, ESTABANA GALOLO, and CELSA AGAPE,petitioners, vs.COURT OF APPEALS AND JULIO VIVARES,respondents.D E C I S I O NTORRES, JR.,J.:Unless legally flawed, a testators intention in his last will and testament is its life and soul which deserves reverential observance.The controversy before us deals with such a case.Petitioners Manuel G. Reyes, Mila G. Reyes, Danilo G. Reyes, Lyn Agape, Marites Agape, Estebana Galolo and Celsa Agape, the oppositors in Special Proceedings No. 112 for the probate of the will of Torcuato J. Reyes, assail in this petition for review the decision of the Court of Appeals[1]dated November 29, 1995, the dispositive portion of which reads:WHEREFORE, premises considered, the judgment appealed from allowing or admitting the will of Torcuato J. Reyes to probate and directing the issuance of Letter Testamentary in favor of petitioner Julio A. Vivares as executor without bond is AFFIRMED but modified in that the declaration that paragraph II of the Torcuato Reyes' last will and testament, including subparagraphs (a) and (b) are null and void for being contrary to law is hereby SET ASIDE, said paragraphs (a) and (b) are declared VALID.Except as above modified, the judgment appealed from is AFFIRMED.SO ORDERED."[2]The antecedent facts:On January 3, 1992, Torcuato J. Reyes executed his last will and testament declaring therein in part, to wit:xxxII. I give and bequeath to my wife Asuncion Oning R. Reyes the following properties to wit:a. All my shares of our personal properties consisting among others of jewelries, coins, antiques, statues, tablewares, furnitures, fixtures and the building;b. All my shares consisting of one half (1/2) or 50% of all the real estates I own in common with my brother Jose, situated in Municipalities of Mambajao, Mahinog, Guinsiliban, Sagay all in Camiguin; real estates in Lunao, Ginoong, Caamulan, Sugbongcogon, Boloc-Boloc, Kinoguinatan, Balingoan, Sta. Ines, Caesta, Talisayan, all in the province of Misamis Oriental.[3]The will consisted of two pages and was signed by Torcuato Reyes in the presence of three witnesses: Antonio Veloso, Gloria Borromeo, and Soledad Gaputan.Private respondent Julio A. Vivares was designated the executor and in his default or incapacity, his son Roch Alan S. Vivares.Reyes died on May 12, 1992 and on May 21, 1992, private respondent filed a petition for probate of the will before the Regional Trial Court of Mambajao, Camiguin.The petitioner was set for hearing and the order was published in the Mindanao Daily Post, a newspaper of general circulation, once a week for three consecutive weeks.Notices were likewise sent to all the persons named in the petition.On July 21, 1992, the recognized natural children of Torcuato Reyes with Estebana Galolo, namely Manuel, Mila, and Danilo all surnamed Reyes, and the deceaseds natural children with Celsa Agape, namely Lyn and Marites Agape, filed an opposition with the following allegations: a) that the last will and testament of Reyes was not executed and attested in accordance with the formalities of law; and b) that Asuncion Reyes Ebarle exerted undue and improper influence upon the testator at the time of the execution of the will.The opposition further averred that Reyes was never married to and could never marry Asuncion Reyes, the woman he claimed to be his wife in the will, because the latter was already married to Lupo Ebarle who was still then alive and their marriage was never annulled.Thus Asuncion can not be a compulsory heir for her open cohabitation with Reyes was violative of public morals.On July 22, 1992, the trial court issued an ordering declaring that it had acquired jurisdiction over the petition and, therefore, allowed the presentation of evidence.After the presentation of evidence and submission of the respective memoranda, the trial court issued its decision on April 23, 1993.The trial court declared that the will was executed in accordance with the formalities prescribed by law.It, however, ruled that Asuncion Reyes, based on the testimonies of the witnesses, was never married to the deceased Reyes, and, therefore, their relationship was an adulterous one.Thus:The admission in the will by the testator to the illicit relationship between him and ASUNCION REYES EBARLE who is somebody elses, wife, is further bolstered, strengthened, and confirmed by the direct testimonies of the petitioner himself and his two attesting witnesses during the trial.In both cases, the common denominator is the immoral meretrecious, adulterous and adulterous and illicit relationship existing between the testator and the devisee prior to the death of the testator, which constituted the sole and primary consideration for the devise or legacy, thus making the will intrinsically invalid.[4]The will of Reyes was admitted to probate except for paragraph II (a) and (b) of the will which was declared null and void for being contrary to law and morals.Hence, Julio Vivares filed an appeal before the Court of Appeals with the allegation that the oppositors failed to present any competent evidence that Asuncion Reyes was legally married to another person during the period of her cohabitation with Torcuato Reyes.On November 29, 1995, the Court of Appeals promulgated the assailed decision which affirmed the trial courts decision admitting the will for probate but the modification that paragraph II including subparagraphs (a) and (b) were declared valid.The appellee court stated:Considering that the oppositors never showed any competent, documentary or otherwise during the trial to show that Asuncion Oning Reyes marriage to the testator was inexistent or void, either because of a pre-existing marriage or adulterous relationship, the trial court gravely erred in striking down paragraph II (a) and (b) of the subject Last Will and Testament, as void for being contrary to law and morals.Said declarations are not sufficient to destroy the presumption of marriage.Nor is it enough to overcome the very declaration of the testator that Asuncion Reyes is his wife.[5]Dissatisfied with the decision of the Court of Appeals, the oppositors filed this petition for review.Petitioners contend that the findings and conclusion of the Court of Appeals was contrary to law, public policy and evidence on record.Torcuato Reyes and Asuncion Oning Reyes were collateral relatives up to the fourth civil degree.Witness Gloria Borromeo testified that Oning Reyes was her cousin as her mother and the latters father were sister and brother.They were also nieces of the late Torcuato Reyes.Thus, the purported marriage of the deceased Reyes and Oning Reyes was voidab initioas it was against public policy pursuant to Article 38 (1) of the Family Code.Petitioners further alleged that Oning Reyes was already married to Lupo Ebarle at the time she was cohabiting with the testator hence, she could never contact any valid marriage with the latter.Petitioners argued that the testimonies of the witnesses as well as the personal declaration of the testator, himself, were sufficient to destroy the presumption of marriage.To further support their contention, petitioners attached a copy of the marriage certificate of Asuncion Reyes and Lupo Ebarle.[6]The petition is devoid of merit.As a general rule, courts in probate proceedings are limited to pass only upon the extrinsic validity of the will sought to be probated.[7]Thus, the court merely inquires on its due execution, whether or not it complies with the formalities prescribed by law, and the testamentary capacity of the testator.It does not determine nor even by implication prejudge the validity or efficacy of the wills provisions.[8]The intrinsic validity is not considered since the consideration thereof usually comes only after the will has been proved and allowed.There are, however, notable circumstances wherein the intrinsic validity was first determined as when the defect of the will is apparent on its face and the probate of the will may become a useless ceremony if it is intrinsically invalid.[9]The intrinsic validity of a will may be passed upon because practical considerations demanded it as when there is preterition of heirs or the testamentary provisions are doubtful legality.[10]Where the parties agree that the intrinsic validity be first determined, the probate court may also do so.[11]Parenthetically, the rule on probate is not inflexible and absolute.Under exceptional circumstances, the probate court is not powerless to do what the situation constrains it to do and pass upon certain provisions of the will.[12]The case at bar arose from the institution of the petition for the probate of the will of the late Torcuato Reyes.Perforce, the only issues to be settled in the said proceeding were: (1) whether or not the testator hadanimus testandi; (2) whether or not vices of consent attended the execution of the will; and (3) whether or not the formalities of the will had been complied with.Thus, the lower court was not asked to rule upon the intrinsic validity or efficacy of the provisions of the will.As a result, the declaration of the testator that Asuncion Oning Reyes was his wife did not have to be scrutinized during the probate proceedings.The propriety of the institution of Oning Reyes as one of the devisees/legatees already involved inquiry on the wills intrinsic validity and which need not be inquired upon by the probate court.The lower court erroneously invoked the ruling in Nepomuceno vs. Court of Appeals (139 SCRA 206) in the instant case.In the case aforesaid, the testator himself, acknowledged his illicit relationship with the devisee, to wit:Art. IV.That since 1952, I have been living, as man and wife, with one Sofia J. Nepomuceno, whom I declare and avow to be entitled to my love an [sic] affection, for all the things which she has done for me, now and in the past; that while Sofia J. Nepomuceno has with my full knowledge and consent, did comfort and represent myself as her own husband, in truth and in fact, as well as in the eyes of the law, I could not bind her to me in the holy bonds of matrimony because of my aforementioned previous marriage.Thus, the very tenor of the will invalidates the legacy because the testator admitted he was disposing of the properties to a person with whom he had been living in concubinage.[13]To remand the case would only be a waste of time and money since the illegality or defect was already patent.This case is different from the Nepomuceno case.Testator Torcuato Reyes merely stated in his will that he was bequeathing some of his personal and real properties to his wife, Asuncion Oning Reyes.There was never an open admission of any illicit relationship.In the case of Nepomuceno, the testator admitted that he was already previously married and that he had an adulterous relationship with the devisee.We agree with the Court of Appeals that the trial court relied on uncorroborated testimonial evidence that Asuncion Reyes was still married to another during the time she cohabited with the testator.The testimonies of the witnesses were merely hearsay and even uncertain as to the whereabouts or existence of Lupo Ebarle, the supposed husband of Asuncion.Thus:The foregoing testimony cannot go against the declaration of the testator that Asuncion Oning Reyes is his wife.In Alvarado v. City Government of Tacloban (supra) the Supreme Court stated that the declaration of the husband is competent evidence to show the fact of marriage.Considering that the oppositors never showed any competent evidence, documentary or otherwise during the trial to show that Asuncion Oning Reyes marriage to the testator was inexistent or void, either because of a pre-existing marriage or adulterous relationship, the trial court gravely erred in striking down paragraph II (a) and (b) of the subject Last Will and Testament, as void for being contrary to law and morals.Said declarations are not sufficient to destroy the presumption of marriage.Nor is it enough to overcome the very declaration of the testator that Asuncion Reyes is his wife.[14]In the elegant language of Justice Moreland written decades ago, he said-A will is the testator speaking after death.Its provisions have substantially the same force and effect in the probate court as if the testator stood before the court in full life making the declarations by word of mouth as they appear in the will.That was the special purpose of the law in the creation of the instrument known as the last will and testament.Men wished to speak after they were dead and the law, by the creation of that instrument, permitted them to do so.xxx All doubts must be resolved in favor of the testators having meant just what he said.(Santosvs. Manarang, 27 Phil. 209).Petitioners tried to refute this conclusion of the Court of Appeals by presenting belatedly a copy of the marriage certificate of Asuncion Reyes and Lupo Ebarle.Their failure to present the said certificate before the probate court to support their position that Asuncion Reyes had an existing marriage with Ebarle constituted a waiver and the same evidence can no longer be entertained on appeal, much less in this petition for review.This Court would no try the case a new or settle factual issues since its jurisdiction is confined to resolving questions of law which have been passed upon by the lower courts.The settled rule is that the factual findings of the appellate court will not be disturbed unless shown to be contrary to the evidence on the record, which petitioners have not shown in this case.[15]Considering the foregoing premises, we sustain the findings of the appellate court it appearing that it did not commit a reversible error in issuing the challenged decision.ACCORDINGLY, decision appealed from dated November 29, 1995, is hereby AFFIRMED and the instant petition for review is DENIED for lack of merit.SO ORDERED.Regalado, (Chairman), Romero, Puno,andMendoza, JJ.,concur.

[G.R. No. 124099.October 30, 1997]MANUEL G. REYES, MILA G. REYES, DANILO G. REYES, LYN AGAPE, MARITES AGAPE, ESTABANA GALOLO, and CELSA AGAPE,petitioners, vs.COURT OF APPEALS AND JULIO VIVARES,respondents.D E C I S I O NTORRES, JR.,J.:Unless legally flawed, a testators intention in his last will and testament is its life and soul which deserves reverential observance.The controversy before us deals with such a case.Petitioners Manuel G. Reyes, Mila G. Reyes, Danilo G. Reyes, Lyn Agape, Marites Agape, Estebana Galolo and Celsa Agape, the oppositors in Special Proceedings No. 112 for the probate of the will of Torcuato J. Reyes, assail in this petition for review the decision of the Court of Appeals[1]dated November 29, 1995, the dispositive portion of which reads:WHEREFORE, premises considered, the judgment appealed from allowing or admitting the will of Torcuato J. Reyes to probate and directing the issuance of Letter Testamentary in favor of petitioner Julio A. Vivares as executor without bond is AFFIRMED but modified in that the declaration that paragraph II of the Torcuato Reyes' last will and testament, including subparagraphs (a) and (b) are null and void for being contrary to law is hereby SET ASIDE, said paragraphs (a) and (b) are declared VALID.Except as above modified, the judgment appealed from is AFFIRMED.SO ORDERED."[2]The antecedent facts:On January 3, 1992, Torcuato J. Reyes executed his last will and testament declaring therein in part, to wit:xxxII. I give and bequeath to my wife Asuncion Oning R. Reyes the following properties to wit:a. All my shares of our personal properties consisting among others of jewelries, coins, antiques, statues, tablewares, furnitures, fixtures and the building;b. All my shares consisting of one half (1/2) or 50% of all the real estates I own in common with my brother Jose, situated in Municipalities of Mambajao, Mahinog, Guinsiliban, Sagay all in Camiguin; real estates in Lunao, Ginoong, Caamulan, Sugbongcogon, Boloc-Boloc, Kinoguinatan, Balingoan, Sta. Ines, Caesta, Talisayan, all in the province of Misamis Oriental.[3]The will consisted of two pages and was signed by Torcuato Reyes in the presence of three witnesses: Antonio Veloso, Gloria Borromeo, and Soledad Gaputan.Private respondent Julio A. Vivares was designated the executor and in his default or incapacity, his son Roch Alan S. Vivares.Reyes died on May 12, 1992 and on May 21, 1992, private respondent filed a petition for probate of the will before the Regional Trial Court of Mambajao, Camiguin.The petitioner was set for hearing and the order was published in the Mindanao Daily Post, a newspaper of general circulation, once a week for three consecutive weeks.Notices were likewise sent to all the persons named in the petition.On July 21, 1992, the recognized natural children of Torcuato Reyes with Estebana Galolo, namely Manuel, Mila, and Danilo all surnamed Reyes, and the deceaseds natural children with Celsa Agape, namely Lyn and Marites Agape, filed an opposition with the following allegations: a) that the last will and testament of Reyes was not executed and attested in accordance with the formalities of law; and b) that Asuncion Reyes Ebarle exerted undue and improper influence upon the testator at the time of the execution of the will.The opposition further averred that Reyes was never married to and could never marry Asuncion Reyes, the woman he claimed to be his wife in the will, because the latter was already married to Lupo Ebarle who was still then alive and their marriage was never annulled.Thus Asuncion can not be a compulsory heir for her open cohabitation with Reyes was violative of public morals.On July 22, 1992, the trial court issued an ordering declaring that it had acquired jurisdiction over the petition and, therefore, allowed the presentation of evidence.After the presentation of evidence and submission of the respective memoranda, the trial court issued its decision on April 23, 1993.The trial court declared that the will was executed in accordance with the formalities prescribed by law.It, however, ruled that Asuncion Reyes, based on the testimonies of the witnesses, was never married to the deceased Reyes, and, therefore, their relationship was an adulterous one.Thus:The admission in the will by the testator to the illicit relationship between him and ASUNCION REYES EBARLE who is somebody elses, wife, is further bolstered, strengthened, and confirmed by the direct testimonies of the petitioner himself and his two attesting witnesses during the trial.In both cases, the common denominator is the immoral meretrecious, adulterous and adulterous and illicit relationship existing between the testator and the devisee prior to the death of the testator, which constituted the sole and primary consideration for the devise or legacy, thus making the will intrinsically invalid.[4]The will of Reyes was admitted to probate except for paragraph II (a) and (b) of the will which was declared null and void for being contrary to law and morals.Hence, Julio Vivares filed an appeal before the Court of Appeals with the allegation that the oppositors failed to present any competent evidence that Asuncion Reyes was legally married to another person during the period of her cohabitation with Torcuato Reyes.On November 29, 1995, the Court of Appeals promulgated the assailed decision which affirmed the trial courts decision admitting the will for probate but the modification that paragraph II including subparagraphs (a) and (b) were declared valid.The appellee court stated:Considering that the oppositors never showed any competent, documentary or otherwise during the trial to show that Asuncion Oning Reyes marriage to the testator was inexistent or void, either because of a pre-existing marriage or adulterous relationship, the trial court gravely erred in striking down paragraph II (a) and (b) of the subject Last Will and Testament, as void for being contrary to law and morals.Said declarations are not sufficient to destroy the presumption of marriage.Nor is it enough to overcome the very declaration of the testator that Asuncion Reyes is his wife.[5]Dissatisfied with the decision of the Court of Appeals, the oppositors filed this petition for review.Petitioners contend that the findings and conclusion of the Court of Appeals was contrary to law, public policy and evidence on record.Torcuato Reyes and Asuncion Oning Reyes were collateral relatives up to the fourth civil degree.Witness Gloria Borromeo testified that Oning Reyes was her cousin as her mother and the latters father were sister and brother.They were also nieces of the late Torcuato Reyes.Thus, the purported marriage of the deceased Reyes and Oning Reyes was voidab initioas it was against public policy pursuant to Article 38 (1) of the Family Code.Petitioners further alleged that Oning Reyes was already married to Lupo Ebarle at the time she was cohabiting with the testator hence, she could never contact any valid marriage with the latter.Petitioners argued that the testimonies of the witnesses as well as the personal declaration of the testator, himself, were sufficient to destroy the presumption of marriage.To further support their contention, petitioners attached a copy of the marriage certificate of Asuncion Reyes and Lupo Ebarle.[6]The petition is devoid of merit.As a general rule, courts in probate proceedings are limited to pass only upon the extrinsic validity of the will sought to be probated.[7]Thus, the court merely inquires on its due execution, whether or not it complies with the formalities prescribed by law, and the testamentary capacity of the testator.It does not determine nor even by implication prejudge the validity or efficacy of the wills provisions.[8]The intrinsic validity is not considered since the consideration thereof usually comes only after the will has been proved and allowed.There are, however, notable circumstances wherein the intrinsic validity was first determined as when the defect of the will is apparent on its face and the probate of the will may become a useless ceremony if it is intrinsically invalid.[9]The intrinsic validity of a will may be passed upon because practical considerations demanded it as when there is preterition of heirs or the testamentary provisions are doubtful legality.[10]Where the parties agree that the intrinsic validity be first determined, the probate court may also do so.[11]Parenthetically, the rule on probate is not inflexible and absolute.Under exceptional circumstances, the probate court is not powerless to do what the situation constrains it to do and pass upon certain provisions of the will.[12]The case at bar arose from the institution of the petition for the probate of the will of the late Torcuato Reyes.Perforce, the only issues to be settled in the said proceeding were: (1) whether or not the testator hadanimus testandi; (2) whether or not vices of consent attended the execution of the will; and (3) whether or not the formalities of the will had been complied with.Thus, the lower court was not asked to rule upon the intrinsic validity or efficacy of the provisions of the will.As a result, the declaration of the testator that Asuncion Oning Reyes was his wife did not have to be scrutinized during the probate proceedings.The propriety of the institution of Oning Reyes as one of the devisees/legatees already involved inquiry on the wills intrinsic validity and which need not be inquired upon by the probate court.The lower court erroneously invoked the ruling in Nepomuceno vs. Court of Appeals (139 SCRA 206) in the instant case.In the case aforesaid, the testator himself, acknowledged his illicit relationship with the devisee, to wit:Art. IV.That since 1952, I have been living, as man and wife, with one Sofia J. Nepomuceno, whom I declare and avow to be entitled to my love an [sic] affection, for all the things which she has done for me, now and in the past; that while Sofia J. Nepomuceno has with my full knowledge and consent, did comfort and represent myself as her own husband, in truth and in fact, as well as in the eyes of the law, I could not bind her to me in the holy bonds of matrimony because of my aforementioned previous marriage.Thus, the very tenor of the will invalidates the legacy because the testator admitted he was disposing of the properties to a person with whom he had been living in concubinage.[13]To remand the case would only be a waste of time and money since the illegality or defect was already patent.This case is different from the Nepomuceno case.Testator Torcuato Reyes merely stated in his will that he was bequeathing some of his personal and real properties to his wife, Asuncion Oning Reyes.There was never an open admission of any illicit relationship.In the case of Nepomuceno, the testator admitted that he was already previously married and that he had an adulterous relationship with the devisee.We agree with the Court of Appeals that the trial court relied on uncorroborated testimonial evidence that Asuncion Reyes was still married to another during the time she cohabited with the testator.The testimonies of the witnesses were merely hearsay and even uncertain as to the whereabouts or existence of Lupo Ebarle, the supposed husband of Asuncion.Thus:The foregoing testimony cannot go against the declaration of the testator that Asuncion Oning Reyes is his wife.In Alvarado v. City Government of Tacloban (supra) the Supreme Court stated that the declaration of the husband is competent evidence to show the fact of marriage.Considering that the oppositors never showed any competent evidence, documentary or otherwise during the trial to show that Asuncion Oning Reyes marriage to the testator was inexistent or void, either because of a pre-existing marriage or adulterous relationship, the trial court gravely erred in striking down paragraph II (a) and (b) of the subject Last Will and Testament, as void for being contrary to law and morals.Said declarations are not sufficient to destroy the presumption of marriage.Nor is it enough to overcome the very declaration of the testator that Asuncion Reyes is his wife.[14]In the elegant language of Justice Moreland written decades ago, he said-A will is the testator speaking after death.Its provisions have substantially the same force and effect in the probate court as if the testator stood before the court in full life making the declarations by word of mouth as they appear in the will.That was the special purpose of the law in the creation of the instrument known as the last will and testament.Men wished to speak after they were dead and the law, by the creation of that instrument, permitted them to do so.xxx All doubts must be resolved in favor of the testators having meant just what he said.(Santosvs. Manarang, 27 Phil. 209).Petitioners tried to refute this conclusion of the Court of Appeals by presenting belatedly a copy of the marriage certificate of Asuncion Reyes and Lupo Ebarle.Their failure to present the said certificate before the probate court to support their position that Asuncion Reyes had an existing marriage with Ebarle constituted a waiver and the same evidence can no longer be entertained on appeal, much less in this petition for review.This Court would no try the case a new or settle factual issues since its jurisdiction is confined to resolving questions of law which have been passed upon by the lower courts.The settled rule is that the factual findings of the appellate court will not be disturbed unless shown to be contrary to the evidence on the record, which petitioners have not shown in this case.[15]Considering the foregoing premises, we sustain the findings of the appellate court it appearing that it did not commit a reversible error in issuing the challenged decision.ACCORDINGLY, decision appealed from dated November 29, 1995, is hereby AFFIRMED and the instant petition for review is DENIED for lack of merit.SO ORDERED.Regalado, (Chairman), Romero, Puno,andMendoza, JJ.,concur.

[G. R. No.3643.March 23, 1909.]AMBROSIA POSTIGO,Petitioner-Appellant, vs. DOLORES BORJAL,Respondent-Appellee.D E C I S I O NTORRES,J.:On the 2d of September, 1903, Enrique Borjal executed his will and testament, of which the following extract is pertinent to this issue:chanrobles virtualawlibraryI hereby declare that I have been married to Doa Ambrosia Postigo for nearly twenty-five years, and that we have had no issue during our marriage. I also declare that all our property, with the exception of two parcels of land in the sitio of Caraycayon Gignaroy was acquired during marriage. The first of these parcels is bounded on the north by the great River Baraton (here follows the description); the second, or that of Gignaroy, is bounded on the north (description follows). All of said property shall be administered by my wife for the space of four years in order to satisfy all of our debts, particularly that due to Don Domingo Monasterio. At the expiration of the four years my wife shall transfer the parcels in Gignaroy which extend from the great River Barayon down to the Arroyo de Gignaroy (description follows) to my sisters Dolores Borjal. On the 26th of November, 1904, the Court of First Instance of Ambos Camarines appointed commissioners to appraise the property of the deceased. They submitted to the court their report on the 30th of October, 1905, stating that they took the oath of office before the justice of the peace of Tigaon and immediately proceeded to assess the property presented by the administratrix of the estate. At the same time they published notices summoning all creditors who had claims against the said property and fixed the 15th and 30th day of each month for the hearing of claims. The first hearing by the commissioners took place on the 30th of December, 1904; successive ones were held on the 15th and 30th of each month from January to October, 1905, but no claims whatever were presented by the creditors of the said estate of the late Enrique Borjal.The court below, on the 9th of July, 1906, thereupon approved the partition of the hereditary property made by said commissioners in all of its parts, and ordered that the latter place Dolores Borjal in possession of that portion of the inheritance corresponding to her without the necessity of waiting for the four years stipulated in the will. To this end the court ordered that a formal deed of transfer be made out and forwarded to the court in order that it might be included in the proceedings; that a certified copy of the deed of transfer be also sent to the registrar of property in compliance with law; that the fees of the commissioners appointed by the court be charged in equal parts to both inheritances, and that the bond given by the executrix be canceled.From said decision the latter appealed, and after giving bond for P500 he appeal was admitted and forwarded to this court.All debts that might be outstanding against the estate of the late Enrique Borjal having been held to be barred by reason of their not being presented for collection within the period fixed for the purpose by the duly appointed commissioners, the question at issue and presented to this court is whether the clause which provided for the retention by the widow of the property which the deceased willed to his sister, Dolores Borjal, may be considered as set aside, and the usufruct of the said property bequeathed to his widow, Ambrosia Postigo, for the period of four years from the death of the testator for the purposes of meeting the debts of the estate, particularly that owing to Domingo Monasterio, should be considered as having terminated.A rule that is uniformly laid down by the courts is, that the will of the testator is the primary and principal law governing wills and testaments, and when the testamentary provisions are clearly and positively stated, questions arising in the courts in connection with the execution of and compliance therewith shall be adjusted in harmony with the plain and literal meaning of the language of the testator, except where it clearly appears that his intention was other than that actually expressed. (Decisions of the supreme court of Spain of May 24, 1882; October 13, 1896; October 8, 1902.)cralawThe above legal doctrine already constitutes a uniform settled rule and is in accord with the conclusive provision of article 675 of the Civil Code which reads:chanrobles virtualawlibraryEvery testamentary provision shall be understood in the literal meaning of its words, unless it clearly appears that the will of the testator was different. In case of doubt, that which appears most in accordance with the intention of the testator, according to the tenor of the same will, shall be observed.Section 640 of the Code of Civil Procedure provides, among other things, that after payment of the debts and of the expenses of administration, the property of the testator shall be disposed of according to his will; and section 643 of said code when enumerating the duties of an executor states that one of them is to administer all property coming into his possession according to the will of the testator.The testator bequeathed to his widow the usufruct of two parcels of land for the period of four years, in order that she might meet the debts of her husband. Consequently, the circumstance that outstanding debts of the said estate were declared to be barred, owing to the failure of the various creditors and especially of the one named in the will, to appear within the time specified by the commissioners, is no valid reason for shortening the period fixed in the will within which the usufruct should accrue to the widow and executrix. The barring of the debts of the estate cannot effect a modification of the will, nor cause the testamentary provision of the testator to be interpreted as meaning anything but that stated in his will.Clearly and precisely the testator provided as his last will that his said wife should administer the said parcels of land for four years, in order that she might pay his debts. The fact that no creditor ever appeared to collect them is no reason why the widow and executrix should be deprived of the usufruct of said properties before the lapse of the said four years. Such deprivation would be in violation of the special law that governs the matter, that is, the will of the testator, by which his property must be administered, according to the legal provisions and settled rules hereinbefore cited.The validity and efficiency of the usufruct bequeathed to the widow and executrix of the testator is not incompatible with the provisions of section 695 of the Code of Civil Procedure, because apart from the obligation imposed by the testator upon his wife in the matte of the payment of his debts, which obligation she was unable to fulfill inasmuch as no creditor presented himself, there exists the order or request that she should retain the said lands in her possession for four years, and there is no valid reason why the will of the testator should not be complied with and the land be delivered to Dolores Borjal at the expiration of said four years.Therefore, in view of the foregoing, it is our opinion that the judgment appealed from should be reversed, and that it be held, as we do hereby hold, that Ambrosia Postigo is entitled to possession and to administer for the period of four years, from the death of the testator, the two parcels of land and that Dolores Borjal cannot take possession thereof until after the lease of the said term. No special ruling is made as to the costs in either instance.Arellano,C.J.,Mapa, Johnson and Carson,JJ.,concur.

G.R. No. L-15737 February 28, 1962LEONOR VILLAFLOR VDA. DE VILLANUEVA,plaintiff-appellant,vs.DELFIN N. JUICO, in his capacity as Judicial Administrator of the testate estate of FAUSTA NEPOMUCENO,defendant-appellee.Amado G. Salazar for plaintiff-appellant.Sycip, Salazar, Luna and Associates for defendant-appellee.REYES, J.B.L.,J.:Subject to this direct appeal to us on points of law is the decision of the Court of First Instance of Rizal, in its Civil Case No. Q-2809, dismissing plaintiff-appellant's complaint for the recovery of certain properties that were originally owned by the plaintiff's granduncle, Nicolas Villaflor, and which he granted to his widow, Doa Fausta Nepomuceno, bequeathing to her "su uso y posesion mientras viva y no se case en segundas nupcias".The following facts appear of record: On October 9, 1908, Don Nicolas Villaflor, a wealthy man of Castillejos, Zambales, executed a will in Spanish in his own handwriting, devising and bequeathing in favor of his wife, Dona Fausta Nepomuceno, one-half of all his real and personal properties, giving the other half to his brother Don Fausto Villaflor.Clause 6th, containing the institution of heirs, reads as follows: .SEXTO En virtud de las facultades que me conceden las leyes, instituyo per mis unicos y universales herederos de todos mis derechos y acciones a mi hermano D. Fausto Villaflor y a mi esposa Da. Fausta Nepomuceno para que partan todos mis bienes que me pertenescan, en iguales partes, para despues de mi muerte, exceptuando las donaciones y legados que, abajo mi mas expontanea voluntad, lo hago en la forma siguiente: .SEPTIMO: Lego para dispues de mi muerte a mi esposa Da. Fausta Nepomuceno, en prueba de mi amor y carino, los bienes, alhajas y muebles que a continuacion se expresan; .OCTAVO: Que estos legades disfrutaria mi referida esposa Da. Fausta Nepomuceno su uso y posesion mientras viva y no se case en segundas nupcias, de la contrario, pasara a ser propiedad estos dichos legados de mi sobrina nieta Leonor Villaflor.The 12th clause of the will provided, however, that Clauses 6th and 7th thereof would be deemed annulled from the moment he bore any child with Doa Fausta Nepomuceno. Said Clause 12th reads as follows: .DUODECIMO: Quedan anulados las parrafos 6.0 y 7.0 de este testamento que tratan de institucion de herederos y los legados que se haran despues de mi muerte a favor de mi esposa, en el momento que podre tener la dicha de contrar con hijo y hijos legitimos o legitimados, pues estos, conforme a ley seran mis herederos.Don Nicolas Villaflor died on March 3, 1922, without begetting any child with his wife Doa Fausta Nepomuceno. The latter, already a widow, thereupon instituted Special Proceeding No. 203 of the Court of First Instance of Zambales, for the settlement of her husband's estate and in that proceeding, she was appointed judicial administratrix. In due course of administration, she submitted a project of partition, now Exhibit "E". In the order of November 24, 1924, now exhibit "C", the probate court approved the project of partition and declared the proceeding closed. As the project of partition, Exhibit "E", now shows Doa Fausta Nepomuceno received by virtue thereof the ownership and possession of a considerable amount of real and personal estate. By virtue also of the said project of partition, she received the use and possession of all the real and personal properties mentioned and referred to in Clause 7th of the will. The order approving the project of partition (Exh. "C"), however, expressly provided that approval thereof was "sin perjuicio de lo dispuesto en la clausula 8.o del testamento de Nicolas Villaflor." .On May 1, 1956, Doa Fausta Nepomuceno died without having contracted a second marriage, and without having begotten any child with the deceased Nicolas Villaflor. Her estate is now being settled in Special Proceeding No. Q-1563 in the lower court, with the defendant Delfin N. Juico as the duly appointed and qualified judicial administrator.The plaintiff Leonor Villaflor Vda. de Villanueva is admitted to be the same Leonor Villaflor mentioned by Don Nicolas Villaflor in his will as his "sobrina nieta Leonor Villaflor".Plaintiff Leonor Villaflor instituted the present action against the administrator of the estate of the widow Fausta Nepomuceno, on February 8, 1958, contending that upon the widow's death, said plaintiff became vested with the ownership of the real and personal properties bequeathed by the late Nicolas Villaflor to clause 7 of his will, pursuant to its eight (8th) clause. Defendant's position, adopted by the trial court, is that the title to the properties aforesaid became absolutely vested in the widow upon her death, on account of the fact that she never remarried.We agree with appellant that the plain desire and intent of the testator, as manifested in clause 8 of his testament, was to invest his widow with only a usufruct or life tenure in the properties described in the seventh clause, subject to the further condition (admitted by the appellee) that if the widow remarried, her rights would thereupon cease, even during her own lifetime. That the widow was meant to have no more than a life interest in those properties, even if she did not remarry at all, is evident from the expressions used by the deceased "uso y posesion mientras viva" (use and possession while alive) in which the first half of the phrase "uso y posesion" instead of "dominio" or "propiedad") reinforces the second ("mientras viva"). The testator plainly did not give his widow the full ownership of these particular properties, but only the right to their possession and use (or enjoyment) during her lifetime. This is in contrast with the remainder of the estate in which she was instituted universal heir together with the testator's brother (clause 6).1wph1.tSEXTO: En virtud de las facultades que me conceden las leyes, instituyo por mis unicos y universales herederos de todos mis derechos y acciones a mi hermano D. Fausto Villaflor y a mi esposa Da. Fausta Nepomuceno para que parten todos mis bienes que me pertenescan, en iguales partes, para despues de mi muerte, exceptuando las donaciones y legados que, abajo mi mas expontanea voluntad, lo hago en la forma siguiente.The court below, in holding that the appellant Leonor Villaflor, as reversionary legatee, could succeed to the properties bequeathed by clause 7 of the testament only in the event that the widow remarried, has unwarrantedly discarded the expression "mientras viva," and considered the words "uso y posesion" as equivalent to "dominio" (ownership). In so doing, the trial court violated Article 791 of the Civil Code of the Philippines, as well as section 59 of Rule 123 of the Rules of Court.ART. 791. The words of a will are to receive an interpretation which will give to every expression some effect, rather than one which will render any of the expressions inoperative; and of two modes of interpreting a will, that one is to be preferred which will prevent intestacy." .SEC. 59.Instrument construed so as to give effect to all provisions. In the construction of an instrument where there are several provisions or particulars, such a construction is, if possible, to be adopted as will give effect to all." .Speculation as to the motives of the testator in imposing the conditions contained in clause 7 of his testament should not be allowed to obscure the clear and unambiguous meaning of his plain words, which are over the primary source in ascertaining his intent. It is well to note that if the testator had intended to impose as sole condition the non-remarriage of his widow, the words "uso y posesion mientras viva" would have been unnecessary, since the widow could only remarry during her own lifetime.The Civil Code, in Article 790, p. 1 (Article 675 of the Code of 1889), expressly enjoins the following: .ART. 790. The words of a will are to be taken in their ordinary and grammatical sense, unless a clear intention to use them in another sense can be gathered, and that other can be ascertained." .Technical words in a will are to be taken in their technical sense, unless the context clearly indicates a contrary intention, or unless it satisfactorily appears that the will was drawn solely by the testator, and that he was unacquainted with such technical sense. (675a)In consonance with this rule, this Supreme Court has laid the doctrine in In re Estate of Calderon, 26 Phil., 233, that the intention and wishes of the testator, when clearly expressed in his will, constitute the fixed law of interpretation, and all questions raised at the trial, relative to its execution and fulfillment, must be settled in accordance therewith, following the plain and literal meaning of the testator's words, unless itclearlyappears that his intention was otherwise. The same rule is adopted by the Supreme Court of Spain (TS. Sent. 20 Marzo 1918; 28 Mayo 1918; 30 Abril 1913; 16 Enero 1915; 23 Oct. 1925).La voluntad del testador, clara, precisa y constantemente expresada al ordenar su ultimo voluntad, es ley unica, imperativa y obligatoria que han de obedecer y cumplir fieldmente albaceas, legatarios y heredera, hoy sus sucesores, sin que esa voluntad patente, que no ha menester de interpretaciones, pues no ofrece la menor duda, pueda sustituirse, pues no ofrece la menor duda, pueda sustituirse por ningun otro criterio de alguna de los interesados, ni tampoco por el judicial. (Tribunal Supremo of Spain, Sent. 20 March 1918) .The American decisions invoked by appellee in his brief inapplicable, because they involve cases where the only condition imposed on the legatee was that she should remain a widow. As already shown, the testament of Don Nicolas Villaflor clearly and unmistakably provided that his widow should have the possession and use of the legacies while alive and did not rem