8/11/2019 Balanay vs. Martinez

1/3

8/11/2019 Balanay vs. Martinez

2/3

notice to creditors and set the intestate proceeding for hearing. The notice to creditors wasissued on April 1, 1974 and published on May 2, 9 and 16 in the Davao Star in spite ofpetitioner's motion of April 17, 1974 that its publication be held in abeyance.

9. Felix Balanay, Jr., through a new counsel, Roberto M. Sarenas, in a verified motion askedfor the reconsideration of the lower court s Ground: that Atty. Monta a had no authority to

withdraw the petition for the allowance of the will. Withdrawal of the petition for the probateof the will was without their consent and was contrary to their repeated reminder to him thattheir mother's will was "very sacred" to them.

10. Avelina B. Antonio and Delia B. Lanaban opposed the motion for reconsideration. LC:denied the motion in its order. It clarified that it declared the will void on the basis of its ownindependent assessment of its provisions and not because of Atty. Monta a's arguments.

Issue:

WON the probate court erred in passing upon the intrinsic validity of the will.

Held:

The trial court acted correctly in passing upon the will's intrinsic validity even before its formalvalidity had been established. But the probate court erred in declaring, in its order of February 28,1974 that the will was void and in converting the testate proceeding into an intestate proceeding.

Ratio:

1. In view of certain unusual provisions of the will, which are of dubious legality, and becauseof the motion to withdraw the petition for probate (which the lower court assumed to havebeen 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.

a. The probate of a will might become an idle ceremony if on its face it appears to beintrinsically void.

b. Where practical considerations demand that the intrinsic validity of the will be passedupon, even before it is probated, the court should meet the issue.

2. But the probate court erred in declaring that the will was void and in converting the testateproceeding into an intestate proceeding.

a. notwithstanding the fact that in its order of June 18, 1973 , it gave effect to the survivinghusband's conformity to the will and to his renunciation of his hereditary rights whichpresumably included his one-half share of the conjugal estate.

3. General Rule: "the invalidity of one of several dispositions contained in a will does not resultin the invalidity of the other dispositions, unless it is to be presumed that the testator wouldnot have made such other dispositions if the first invalid disposition had not been made"

a. "Where some of the provisions of a will are valid and others invalid, the valid parts willbe upheld if they can be separated from the invalid without defeating the intention of thetestator or interfering with the general testamentary scheme, or doing injustice to thebeneficiaries"

b. The statement of the testatrix that she owned the "southern half of the conjugal lands iscontrary to law because, although she was a co-owner thereof, her share was inchoateand proindiviso

c. But that illegal declaration does not nullify the entire will. It may be disregarded.

8/11/2019 Balanay vs. Martinez

3/3

4. The testatrix in her will made a partition of the entire conjugal estate among her six children(her husband had renounced his hereditary rights and his one-half conjugal share).

a. She did not assign the whole estate to one or more children as envisaged in article1080.

b. Hence, she had no right to require that the legitimes be paid in cash.c. On the other hand, her estate may remain undivided only for a period of twenty years.

5. Felix Balanay, Sr. could validly renounce his hereditary rights and his one-half share of theconjugal partnership

a. But insofar as said renunciation partakes of a donation of his hereditary rights and hisone-half share in the conjugal estate, it should be subject to the limitations prescribed inarticles 750 and 752 of the Civil Code.

b. A portion of the estate should be adjudicated to the widower for his support andmaintenance. Or at least his legitime should be respected.

6. In the instant case there is no doubt that the testatrix and her husband intended to partitionthe conjugal estate in the manner set forth in paragraph V of her will.

a. It is true that she could dispose of by will only her half of the conjugal estate (Art. 170,Civil Code) but since the husband, after the dissolution of the conjugal partnership, hadassented to her testamentary partition of the conjugal estate, such partition has becomevalid, assuming that the will may be probated.

7. In the instant case, the preterited heir was the surviving spouse. His preterition did notproduce intestacy. Moreover, he signified his conformity to his wife's will and renounced hishereditary rights.

a. Remember this: Article 854 of the Civil Code provides that "the preterition or omission

of one, some, or all of the compulsory heirs in the direct line, whether living at the timeof the execution of the will or born after the death of the testator, shall annul theinstitution of heir; but the devises and legacies, shall be valid insofar as they are notinofficious."

b. As far as is legally possible, the expressed desire of the testator must be followed andthe dispositions of the properties in his will should be upheld (Estorque vs. Estorque, L-19573, June 30, 1970, 33 SCRA 540, 546).

c. c. The law has a tender regard for the wishes of the testator as expressed in his willbecause any disposition therein is better than that which the law can make (Castro vs.Bustos, L-25913, February 28, 1969, 27 SCRA 327, 341).