FIRST DIVISION

[G.R. No. L-62952. October 9, 1985.]

SOFIA J. NEPOMUCENO, petitioner, vs. THE HONORABLE COURT OF

APPEALS, RUFINA GOMEZ, OSCAR JUGO ANG CARMELITA JUGO,
respondents.

DECISION

GUTIERREZ, JR., J : p

This is a petition for certiorari to set aside that portion of the decision of the
respondent Court of Appeals (now Intermediate Appellate Court) dated June 3, 1982,
as amended by the resolution dated August 10, 1982, declaring as null and void the
devise in favor of the petitioner and the resolution dated December 28, 1982 denying
petitioner's motion for reconsideration.
Martin Jugo died on July 16, 1974 in Malabon, Rizal. He left a last Will and
Testament duly signed by him at the end of the Will on page three and on the left
margin of pages 1, 2 and 4 thereof in the presence of Celestina Alejandro, Myrna C.
Cortez, and Leandro Leaño, who in turn, affixed their signatures below the attestation
clause and on the left margin of pages 1, 2 and 4 of the Will in the presence of the
testator and of each other and the Notary Public. The Will was acknowledged before
the Notary Public Romeo Escareal by the testator and his three attesting witnesses.
In the said Will, the testator named and appointed herein petitioner Sofia J.
Nepomuceno as his sole and only executor of his estate. It is clearly stated in the Will
that the testator was legally married to a certain Rufina Gomez by whom he had two
legitimate children, Oscar and Carmelita, but since 1952, he had been estranged from
his lawfully wedded wife and had been living with petitioner as husband and wife. In
fact, on December 5, 1952, the testator Martin Jugo and the petitioner herein, Sofia J.
Nepomuceno were married in Victoria, Tarlac before the Justice of the Peace. The
testator devised to his forced heirs, namely, his legal wife Rufina Gomez and his
children Oscar and Carmelita his entire estate and the free portion thereof to herein
petitioner. The Will reads in part: LibLex

"Art. III. That I have the following legal heirs, namely: my

aforementioned legal wife, Rufina Gomez, and our son, Oscar, and daughter
Carmelita, both surnamed Jugo, whom I declare and admit to be legally and
properly entitled to inherit from me; that while I have been estranged from my
above-named wife for so many years, I cannot deny that I was legally married
to her or that we have been separated up to the present for reasons and
justifications known fully well by them;
"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 may love
and 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
comport 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
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 matrimony because of my aforementioned previous marriage;"
On August 21, 1974, the petitioner filed a petition for the probate of the last Will
and Testament of the deceased Martin Jugo in the Court of First Instance of Rizal,
Branch XXXIV, Caloocan City and asked for the issuance to her of letters testamentary.
On May 13, 1975, the legal wife of the testator, Rufina Gomez and her children
filed an opposition alleging inter alia that the execution of the Will was procured by
undue and improper influence on the part of the petitioner; that at the time of the
execution of the Will, the testator was already very sick and that petitioner having
admitted her living in concubinage with the testator, she is wanting in integrity and thus
letters testamentary should not be issued to her.
On January 6, 1976, the lower court denied the probate of the Will on the ground
that as the testator admitted in his Will to cohabiting with the petitioner from December
1952 until his death on July 16, 1974, the Will's admission to probate will be an idle
exercise because on the face of the Will, the invalidity of its intrinsic provisions is
evident.
The petitioner appealed to the respondent-appellate court.
On June 2, 1982, the respondent court set aside the decision of the Court of First
Instance of Rizal denying the probate of the Will. The respondent court declared the Will
to be valid except that the devise in favor of the petitioner is null and void pursuant to
Article 739 in relation with Article 1028 of the Civil Code of the Philippines. The
dispositive portion of the decision reads:
"WHEREFORE, the decision a quo is hereby set aside, the will in
question declared valid except the devise in favor of the appellant which is
declared null and void. The properties so devised are instead passed on in
intestacy to the appellant in equal shares, without pronouncement as to costs."
On June 15, 1982, oppositors Rufina Gomez and her children filed a "Motion for
Correction of Clerical Error" praying that the word "appellant" in the last sentence of the
dispositive portion of the decision be changed to "appellees" so as to read: "The
properties so devised are instead passed on intestacy to the appellees in equal shares,
without pronouncement as to costs." The motion was granted by the respondent court
on August 10, 1982.
On August 23, 1982, the petitioner filed a motion for reconsideration. This was
denied by the respondent court in a resolution dated December 28, 1982.
The main issue raised by the petitioner is whether or not the respondent court
acted in excess of its jurisdiction when after declaring the last Will and Testament of the
deceased Martin Jugo validly drawn, it went on to pass upon the intrinsic validity of the
testamentary provision in favor of herein petitioner.
The petitioner submits that the validity of the testamentary provision in her favor
cannot be passed upon and decided in the probate proceedings but in some other
proceedings because the only purpose of the probate of a Will is to establish
conclusively as against everyone that a Will was executed with the formalities required
by law and that the testator has the mental capacity to execute the same. The petitioner
further contends that even if the provisions of paragraph 1 of Article 739 of the Civil
Code of the Philippines were applicable, the declaration of its nullity could only be made
by the proper court in a separate action brought by the legal wife for the specific
purpose of obtaining a declaration of the nullity of the testamentary provision in the Will
in favor of the person with whom the testator was allegedly guilty of adultery or
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 concubinage.
The respondents on the other hand contend that the fact that the last Will and
Testament itself expressly admits indubitably on its face the meretricious relationship
between the testator and the petitioner and the fact that petitioner herself initiated the
presentation of evidence on her alleged ignorance of the true civil status of the testator,
which led private respondents to present contrary evidence, merits the application of the
doctrine enunciated in Nuguid v. Felix Nuguid, et al. (17 SCRA 449) and Felix Balanay,
Jr. v. Hon. Antonio Martinez, et al (G.R. No. L-39247, June 27, 1975). Respondents
also submit that the admission of the testator of the illicit relationship between him and
the petitioner put in issue the legality of the devise.
We agree with the respondents.
The respondent court acted within its jurisdiction when after declaring the Will to
be validly drawn, it went on to pass upon the intrinsic validity of the Will and declared
the devise in favor of the petitioner null and void.
The general rule is that in probate proceedings, the court's area of inquiry is
limited to an examination and resolution of the extrinsic validity of the Will. The rule is
expressed thus: LLphil

xxx xxx xxx

". . . It is elementary that a probate decree finally and definitively settles
all questions concerning capacity of the testator and the proper execution and
witnessing of his last Will and testament, irrespective of whether its provisions
are valid and enforceable or otherwise." (Fernandez v. Dimagiba, 21 SCRA
428).
"The petition below being for the probate of a Will, the court's area of
inquiry is limited to the extrinsic validity thereof. The testator's testamentary
capacity and the compliance with the formal requisites or solemnities
prescribed by law are the only questions presented for the resolution of the
court. Any inquiry into the intrinsic validity or efficacy of the provisions of the will
or the legality of any devise or legacy is premature.
xxx xxx xxx
"True or not, the alleged sale is no ground for the dismissal of the
petition for probate. Probate is one thing; the validity of the testamentary
provisions is another. The first decides the execution of the document and the
testamentary capacity of the testator; the second relates to descent and
distribution." (Sumilang v. Ramagosa 21 SCRA 1369).
xxx xxx xxx
"To establish conclusively as against everyone, and once for all, the
facts that a will was executed with the formalities required by law and that the
testator was in a condition to make a will, is the only purpose of the
proceedings under the new code for the probate of a will. (Sec. 625). The
judgment in such proceedings determines and can determine nothing more. In
them the court has no power to pass upon the validity of any provisions made in
the will. It can not decide, for example, that a certain legacy is void and another
one valid. . . ." (Castañeda v. Alemany, 3 Phil. 426)
The rule, however, is not inflexible and absolute. Given exceptional
circumstances, the probate court is not powerless to do what the situation constrains it
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 to do and pass upon certain provisions of the Will.
In Nuguid v. Nuguid (17 SCRA 449) cited by the trial court, the testator instituted
the petitioner as universal heir and completely preterited her surviving forced heirs. A
will of this nature, no matter how valid it may appear extrinsically, would be null and
void. Separate or latter proceedings to determine the intrinsic validity of the
testamentary provisions would be superfluous.
Even before establishing the formal validity of the will, the Court in Balanay, Jr. v.
Martinez (64 SCRA 452) passed upon the validity of its intrinsic provisions.
Invoking "practical considerations", we stated:
"The basic issue is whether the probate court erred in passing upon the
intrinsic validity of the will, before ruling on its allowance or formal validity, and
in declaring it void.
"We are of the opinion that in view of certain unusual provisions of the
will, which are of dubious legality, and because of the motion to withdraw the
petition for probate (which the lower court assumed to have been filed with the
petitioner's authorization), the trial court acted correctly in passing upon the
will's intrinsic validity even before its formal validity had been established. The
probate of a will might become an idle ceremony if on its face it appears to be
intrinsically void. Where practical considerations demand that the intrinsic
validity of the will be passed upon, even before it is probated, the court should
meet the issue (Nuguid v. Nuguid, 64 O.G. 1527, 17 SCRA 449. Compare with
Sumilang v. Ramagosa, L-23135, December 26, 1967, 21 SCRA 1369; Cacho
v. Udan, L-19996, April 30, 1965, 13 SCRA 693).
There appears to be no more dispute at this time over the extrinsic validity of the
Will. Both parties are agreed that the Will of Martin Jugo was executed with all the
formalities required by law and that the testator had the mental capacity to execute his
Will. The petitioner states that she completely agrees with the respondent court when in
resolving the question of whether or not the probate court correctly denied the probate
of Martin Jugo's last Will and Testament, it ruled:
"This being so, the will is declared validly drawn." (Page 4, Decision,
Annex A of Petition.)
On the other hand the respondents pray for the affirmance of the Court of
Appeals' decision in toto.
The only issue, therefore, is the jurisdiction of the respondent court to declare the
testamentary provision in favor of the petitioner as null and void.
We sustain the respondent court's jurisdiction. As stated in Nuguid v. Nuguid ,
(supra):
"We pause to reflect. If the case were to be remanded for probate of the
will, nothing will be gained. On the contrary, this litigation will be protracted.
And for aught that appears in the record, in the event of probate or if the court
rejects the will, probability exists that the case will come up once again before
us on the same issue of the intrinsic validity or nullity of the will. Result. waste
of time, effort, expense, plus added anxiety. These are the practical
considerations that induce us to a belief that we might as well meet head-on the
issue of the validity of the provisions of the will in question. (Section 2, Rule 1,
Rules of Court. Case, et al. v. Jugo, et al., 77 Phil. 517, 522). After all, there
exists a justiciable controversy crying for solution.
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 We see no useful purpose that would be served if we remand the nullified
provision to the proper court in a separate action for that purpose simply because, in
the probate of a will, the court does not ordinarily look into the intrinsic validity of its
provisions.
Article 739 of the Civil Code provides:
"The following donations shall be void:
(1) Those made between persons who were guilty of adultery or
concubinage at the time of the donation;
(2) Those made between persons found guilty of the same criminal
offense, in consideration thereof;
(3) Those made to a public officer or his wife, descendants and
ascendants, by reason of his office.
"In the case referred to in No. 1, the action for declaration of nullity may
be brought by the spouse of the donor or donee; and the guilt of the donor and
donee may be proved by preponderance of evidence in the same action.
Article 1028 of the Civil Code provides:
"The prohibitions mentioned in Article 739, concerning donationsinter
vivos shall apply to testamentary provisions."
In Article III of the disputed Will, executed on August 15, 1968, or almost six
years before the testator's death on July 16, 1974, Martin Jugo stated that respondent
Rufina Gomez was his legal wife from whom he had been estranged "for so many
years." He also declared that respondents Carmelita Jugo and Oscar Jugo were his
legitimate children. In Article IV, he stated that he had been living as man and wife with
the petitioner since 1952. Testator Jugo declared that the petitioner was entitled to his
love and affection. He stated that Nepomuceno represented Jugo as her own husband
but "in truth and in fact, as well as in the eyes of the law, I could not bind her to me in
the holy bonds of matrimony because of my aforementioned previous marriage."
There is no question from the records about the fact of a prior existing marriage
when Martin Jugo executed his Will. There is also no dispute that the petitioner and Mr.
Jugo lived together in an ostensible marital relationship for 22 years until his death.
It is also a fact that on December 2, 1952, Martin Jugo and Sofia J. Nepomuceno
contracted a marriage before the Justice of the Peace of Victoria, Tarlac. The man was
then 51 years old while the woman was 48. Nepomuceno now contends that she acted
in good faith for 22 years in the belief that she was legally married to the testator.
The records do not sustain a finding of innocence or good faith. As argued by the
private respondents:
"First. The last will and testament itself expressly admits indubitably on
its face the meretricious relationship between the testator and petitioner, the
devisee.
"Second. Petitioner herself initiated the presentation of evidence on her
alleged ignorance of the true civil status of the testator, which led private
respondents to present contrary evidence.
"In short, the parties themselves dueled on the intrinsic validity of the
legacy given in the will to petitioner by the deceased testator at the start of the
proceedings.
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 "Whether or not petitioner knew that testator Martin Jugo, the man he
had lived with as man and wife, as already married was an important and
specific issue brought by the parties before the trial court, and passed upon by
the Court of Appeals.
"Instead of limiting herself to proving the extrinsic validity of the will, it
was petitioner who opted to present evidence on her alleged good faith in
marrying the testator. (Testimony of Petitioner, TSN of August 1, 1982, pp. 56-
57 and pp. 62-64).
"Private respondents, naturally, presented evidence that would refute the
testimony of petitioner on the point.
"Sebastian Jugo, younger brother of the deceased testator, testified at
length on the meretricious relationship of his brother and petitioner. (TSN of
August 18, 1975).
"Clearly, the good faith of petitioner was by option of the parties made a
decisive issue right at the inception of the case.
"Confronted by the situation, the trial court had to make a ruling on the
question.
"When the court a quo held that the testator Martin Jugo and petitioner
'were deemed guilty of adultery or concubinage', it was a finding that petitioner
was not the innocent woman she pretended to be."
xxx xxx xxx
"3' If a review of the evidence must be made nonetheless, then private
respondents respectfully offer the following analysis:
"FIRST: The secrecy of the marriage of petitioner with the
deceased testator in a town in Tarlac where neither she nor the
testator ever resided. If there was nothing to hide from, why the
concealment? Of course, it maybe argued that the marriage of
the deceased with private respondent Rufina Gomez was
likewise done in secrecy. But it should be remembered that
Rufina Gomez was already in the family way at that time and it
would seem that the parents of Martin Jugo were not in favor of
the marriage so much so that an action in court was brought
concerning the marriage. (Testimony of Sebastian Jugo, TSN of
August 18, 1975, pp. 29-30).
"SECOND: Petitioner was a sweetheart of the deceased
testator when they were still both single. That would be in 1922
as Martin Jugo married respondent Rufina Gomez on November
29, 1923 (Exh. 3). Petitioner married the testator only on
December 5, 1952. There was a space of about 30 years in-
between. During those 30 years, could it be believed that she
did not even wonder why Martin Jugo did not marry her nor
contact her anymore after November, 1923 — facts that should
impel her to ask her groom before she married him in secrecy,
especially so when she was already about 50 years old at the
time of marriage.
"THIRD: The fact that petitioner broke off from Martin Jugo
in 1923 is by itself conclusive demonstration that she knew that
the man she had openly lived for 22 years as man and wife was
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 a married man with already two children.
"FOURTH: Having admitted that she knew the children of
respondent Rufina Gomez, is it possible that she would not have
asked Martin Jugo whether or not they were ms illegitimate or
legitimate children and by whom? That is un-Filipino.
"FIFTH: Having often gone to Pasig to the residence of the
parents of the deceased testator, is it possible that she would
not have known that the mother of private respondent Oscar
Jugo and Carmelita Jugo was respondent Rufina Gomez,
considering that the houses of the parents of Martin Jugo
(where he had lived for many years) and that of respondent
Rufina Gomez were just a few meters away?
"Such pretentions of petitioner Sofia Nepomuceno are unbelievable.
They are, to say the least, inherently improbable, for they are against the
experience in common life and the ordinary instincts and promptings of human
nature that a woman would not bother at all to ask the man she was going to
marry whether or not he was already married to another, knowing that her
groom had children. It would be a story that would strain human credulity to the
limit if petitioner did not know that Martin Jugo was already a married man in
view of the irrefutable fact that it was precisely his marriage to respondent
Rufina Gomez that led petitioner to break off with the deceased during their
younger years."
Moreover, the prohibition in Article 739 of the Civil Code is against the making of
a donation between persons who are living in adultery or concubinage. It is the donation
which becomes void. The giver cannot give even assuming that the recipient may
receive. The very wordings of the Will invalidate the legacy because the testator
admitted he was disposing the properties to a person with whom he had been living in
concubinage.
WHEREFORE, the petition is DISMISSED for lack of merit. The decision of the
Court of Appeals, now Intermediate Appellate Court, is AFFIRMED. No costs.
SO ORDERED.
Teehankee (Chairman), Melencio-Herrera, Plana, Relova, Dela Fuente and
Patajo, JJ., concur.

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