Case Digest: Fernandez vs. Dimagiba, G.R. Nos. L-23638 and L-23662, October 12, 1967

Succession | Revocation

Art. 957. The legacy or devise shall be without effect:

(1) . . . .

(2) If the testator by any title or for any cause alienates the thing bequeathed or any part thereof, it being understood that in the latter case the legacy or devise shall be without effect only with respect to the part thus alienated. If after the alienation the thing should again belong to the testator, even if it be by reason of nullity of the contract, the legacy or devise shall not thereafter be valid, unless the reacquisition shall have been effected by virtue of the exercise of the right of repurchase;

Ponente:
Felix, J.:

Facts: 
In 1955, Ismaela Dimagiba filed a petition to probate the alleged will of Benedicta de los Reyes executed in 1930. The will instituted the petitioner as the sole heir of the estate of the deceased.

Dionisio Fernandez, Eusebio Reyes and Luisa Reyes and one month later, Mariano, Cesar, Leonor and Paciencia, all surnamed Reyes, all claiming to be heirs intestate of the decedent, filed oppositions to the probate,

CFI-Bulacan: Found the will was genuine but deferred resolution on estoppel and revocation.

Oppositors sought reconsideration for resolution of estoppel and revocation issues.

CA: Affirmed the decision to admit the will to probate, stating it had become final due to a lack of timely appeal.

Issue: WoN the CA correctly admit to probate the alleged last will and testament of the deceased, overruling the opposition to the probate. YES

Held: 
There being no controversy that the probate decree of the Court below was not appealed on time, the same had become final and conclusive. Hence, the appellate courts may no longer revoke said decree nor review the evidence upon which it is made to rest. Thus, the appeal belatedly lodged against the decree was correctly dismissed.

The alleged revocation implied from the execution of the deeds of conveyance in favor of the testamentary heir is plainly irrelevant to and separate from the question of whether the testament was duly executed. For one, if the will is not entitled to probate, or its probate is denied, all questions of revocation become superfluous in law, there is no such will and hence there would be nothing to revoke. Then, again, the revocation invoked by the oppositors-appellants is not an express one, but merely implied from subsequent acts of the testatrix allegedly evidencing an abandonment of the original intention to bequeath or devise the properties concerned. As such, the revocation would not affect the will itself, but merely the particular devise or legacy. Only the total and absolute revocation can preclude probate of the revoked testament (Trillana vs. Crisostomo, supra.).

As to the issue of estoppel, we have already ruled in Guevara vs. Guevara, 98 Phil. 249, that the presentation and probate of a will are requirements of public policy, being primarily designed to protect the testator's, expressed wishes, which are entitled to respect as a consequence of the decedent's ownership and right of disposition within legal limits. Evidence of it is the duty imposed on a custodian of a will to deliver the same to the Court, and the fine and imprisonment prescribed for its violation (Revised Rule 75). It would be a non sequitur to allow public policy to be evaded on the pretext of estoppel. Whether or not the order overruling the allegation of estoppel is still appealable or not, the defense is patently unmeritorious and the Court of Appeals correctly so ruled.

The last issue, that of revocation, is predicated on paragraph 2 of Article 957 of the Civil Code of 1950 (Art. 869 of the Code of 1889), which recites:

Art. 957. The legacy or devise shall be without effect:

(1) . . . .

(2) If the testator by any title or for any cause alienates the thing bequeathed or any part thereof, it being understood that in the latter case the legacy or devise shall be without effect only with respect to the part thus alienated. If after the alienation the thing should again belong to the testator, even if it be by reason of nullity of the contract, the legacy or devise shall not thereafter be valid, unless the reacquisition shall have been effected by virtue of the exercise of the right of repurchase;

xxx           xxx           xxx

It is well to note that, unlike in the French and Italian Codes, the basis of the quoted provision is a presumed change of intention on the part of the testator.

As observed by the Court of Appeals, the existence of any such change or departure from the original intent of the testatrix, expressed in her 1930 testament, is rendered doubtful by the circumstance that the subsequent alienations in 1943 and 1944 were executed in favor of the legatee herself, appellee Dimagiba. In fact, as found by the Court of Appeals in its decision annulling these conveyances (affirmed in that point by this Supreme Court in Reyes vs. Court of Appeals and Dimagiba, L-5618 and L-5620, promulgated on July 31, 1954), "no consideration whatever was paid by respondent Dimagiba" on account of the transfers, thereby rendering it even more doubtful whether in conveying the property to her legatee, the testatrix merely intended to comply in advance with what she had ordained in her testament, rather than an alteration or departure therefrom.1 Revocation being an exception, we believe, with the Courts below, that in the circumstances of the particular case, Article 957 of the Civil Code of the Philippines, does not apply to the case at bar.

Not only that, but even if it were applicable, the annulment of the conveyances would not necessarily result in the revocation of the legacies, if we bear in mind that the findings made in the decision decreeing the annulment of the subsequent 1943 and 1944 deeds of sale were also that

it was the moral influence, originating from their confidential relationship, which was the only cause for the execution of Exhs. A and B (the 1943 and 1944 conveyances). (Decision, L-5618 and L-5620).

If the annulment was due to undue influence, as the quoted passage implies, then the transferor was not expressing her own free will and intent in making the conveyances. Hence, it can not be concluded, either, that such conveyances established a decision on her part to abandon the original legacy.

True it is that the legal provision quoted prescribes that the recovery of the alienated property "even if it be by reason of the nullity of the contract" does not revive the legacy; but as pointed out by Scaevola (Codigo Civil, Vol. XV, 4th Ed., pp. 324-325) the "nullity of the contract" can not be taken in an absolute sense. Certainly, it could not be maintained, for example, that if a testator's subsequent alienation were avoided because the testator was mentally deranged at the time, the revocatory effect ordained by the article should still ensue. And the same thing could be said if the alienation (posterior to the will) were avoided on account of physical or mental duress. Yet, an alienation through undue influence in no way differs from one made through violence or intimidation. In either case, the transferor is not expressing his real intent, and it can not be held that there was in fact an alienation that could produce a revocation of the anterior bequest.

In view of the foregoing considerations, the appealed decision of the Court of Appeals is hereby affirmed. Costs against appellants Reyes and Fernandez. So ordered.

Notes:

Art. 957 enumerates the instances when the legacy/ devise is revoked by operation of law: 
  1. transformation
    • e.g., the testator converts a plantation into a fishpond.
  2. alienation
    • the alienation by the testator may be onerous or gratuitous. a. The alienation revokes the legacy/devise even if for any reason the thing reverts to the testator. 
    • Exceptions
      1. If the reversion is caused by the annulment of the alienation and the cause for annulment was vitiation of consent on the grantor’s part, either by reason of incapacity or of duress. (Fernandez v. Dimagiba, 21 SCRA 428 [1967]) 
      2. If the reversion is by virtue of redemption in a sale with pacto de retro. 
  3. total loss
    • this will be a cause for revocation only if it takes place before the testator’s death. 
      • Fortuitous loss after the testator’s death will not constitute revocation (despite the wording of par. 3 of this article, because legally the disposition takes effect upon death [Article 777, supra]. 
      • Therefore, fortuitous loss after the testator’s death will simply be an instance of “res perit domino'' and will be borne by the legatee/devisee.

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