G.R. No. L-39247 June 27, 1975
Laws Applicable: Art. 792, Art. 179[1], Art. 1041, Art. 1060[1], Art. 750 and 752 Civil
Code
Lessons Applicable: illegal provision in a will, donation, preterition
of surviving spouse
FACTS:
- Leodegaria Julian, a native of Sta. Maria, Ilocos Sur, died on February 12, 1973 in Davao City at the age of 67. She was survived by her husband, Felix Balanay, Sr., and 6 legitimate children: Felix Balanay, Jr., Avelina B. Antonio, Beatriz B. Solamo, Carolina B. Manguiob, Delia B. Lanaban and Emilia B. Pabaonon
- Felix J. Balanay, Jr. filed in the lower court for the probate of his mother's notarial will dated September 5, 1970 which is written in English where Leodegaria Julian declared (a) she was the owner of the "southern half of 9 conjugal lots (b) she was the absolute owner of 2 parcels of land which she inherited from her father (c) it was her desire that her properties should NOT be divided among her heirs during her husband's lifetime and that their legitimes should be satisfied out of the fruits of her properties (d) after her husband's death (age of 82 in 1973) her paraphernal lands and all the conjugal lands should be divided and distributed in the manner set forth in that part of her will. She devised and partitioned the conjugal lands as if they were all owned by her.
- Although initially opposing, Felix Balanay, Sr. signed a Conformation of Division and Renunciation of Hereditary Rights manifesting that out of respect for his wife's will he waived and renounced his hereditary rights in her estate in favor of their 6 children. In that same instrument he confirmed the agreement, which he and his wife had perfected before her death, that their conjugal properties would be partitioned in the manner indicated in her will.
- Avelina B. Antonio, an oppositor, in her rejoinder contended that the affidavit and conformation" of Felix Balanay, Sr. were void for illegally claiming the conjugal lands
- David O. Montaña, Sr., claiming to be the lawyer of Felix Balanay, Jr., Beatriz B. Solamo, Carolina B. Manguiob and Emilia B. Pabaonon filed a motion for leave of court to withdraw probate of the will and requesting authority to proceed by intestate estate proceeding also referring to the provisions relating to the conjugal assets as compromising the future legitimes
- Lower Court: Will was void and converted to intestate proceedings
- Felix Balanay, Jr., through a new counsel, Roberto M. Sarenas, asked for the reconsideration of the lower court's order on the ground that Atty. Montaña had NO authority to withdraw the petition for the allowance of the will
- Lower Court on motion for reconsideration: Denied and clarified that it declared the will void on the basis of its own independent assessment of its provisions and not because of Atty. Montaña's arguments.
ISSUE: W/N the will should be void and interstate proceeding
should follow
HELD: NO.
- illegal declaration does NOT nullify the entire will and may be disregarded
- Felix Balanay, Sr. could validly renounce his hereditary rights and his one-half share of the conjugal partnership but insofar as it partakes of a donation, it should be subject to the limitations prescribed in articles 750 and 752 of the Civil Code. A portion of the estate should be adjudicated to the widower for his support and maintenance. Or at least his legitime should be respected.
- The will is intrinsically valid and the partition therein may be given effect if it does not prejudice the creditors and impair the legitimes. The distribution and partition would become effective upon the death of Felix Balanay, Sr. In the meantime, the net income should be equitably divided among the children and the surviving spouse.
- The preterition of surviving spouse did not produce intestacy. Moreover, he signified his conformity to his wife's will and renounced his hereditary rights.