TESTATE ESTATE OF THE DECEASED DAMASA CRISOSTOMO. NAZARIO TRILLANA, ADMINISTRATOR AND APPELLEE VS. CONSORCIA P. CRISOSTOMO, ET ALS., PETITIONERS AND APPELLANTS.

This is an appeal from an order of the Court of First Instance of
Bulacan denying the appellants’ petition for relief from the judgment
of the said court allowing the will of October 19, 1948, executed by
the deceased Damasa Crisostomo.

The appellants, in support of their sole assignment that the lower
court erred in denying their petition for relief from the judgment of
January 5, 1949, admitting to probate the will of October 19, 1948,
submits to this Court three propositions, to wit: (a) “The judgment of January 5, was obtained through fraud;” (b) “The lower court failed to perform its legal duty to set a date for proving the will of August 16, 1948;” and (c)
“The failure to set aside a date for proving the will of August 16
jointly with the will of October 19 was entirely due to the lower
court’s fault or negligence.”

In support of their proposition (a), attorneys for the
appellant allege that the fraud in obtaining the judgment of January 5
consisted in that the proponents of the will of October 19 did not
cause personal notice of the hearing to be made upon the legal heirs of
the decedent, contrary to the requirement of Rule 77, sec. 4 of the
Rules of Court. We can not consider now for the first time in this
appeal the question whether the lower court (not the proponents)
complied with the requirement of said sec. 4 of Rule 77 of the Rules of
Court, for that question has not been raised by the appellants in the
court below, either in their original petition for relief of May 12,
1949 (pp. 2-8, Record on Appeal), or in their motion for
reconsideration dated August 27, 1949, of the order denying their
petition for relief (pp. 67-71). And there being no evidence to the
contrary, the legal presumption is that the court which probated the
will of October 19, 1948, complied with its duty and acted in lawful
exercise of its jurisdiction in probating said will (Sec. 69 (m) (n),
Rule 123 of the Rules of Court). Besides, the appellee’s attorney, in
the statement of facts in his reply to the appellants’ petition for
relief, stated that “This Honorable Court set its hearing [of the
petition for allowance of the will of October 19, 1948] on December 2,
1948. Copy of this order was published in “The Star Reporter”, a
newspaper of general circulation in Bulacan on November 5, 12 and 19
respectively, and the corresponding notices served by the office of the
Clerk of Court, in accordance with law” (pp. 25, 26, Record on Appeal).
And the attorneys for the petitioners-appellants had not denied said
statement.

The petitioners-appellants having failed to show that the judgment
of the lower court of January 5, 1948, probating the will of testatrix
of October 19, 1948, was obtained through fraud, the lower court did
not commit any error in denying the appellants’ petition for relief
under sec. 2, Rule 38 of the Rules of Court, and therefore it is not
necessary for us to discuss and pass upon the other propositions of the
appellant.

“Where a will is duly probated after publication
pursuant to section 630 of the Code of Civil Procedure, the order
admitting the will is, in the absence of fraud, effective against all
persons. The fact that an heir or other interested party lives so far
away as to make it impossible for such party to be present at the date
appointed for the probate of the will doe s not render the order of
probate void for lack of due process.” (In re Estate of Johnson, 39
Phil. 156)

Besides, even assuming without deciding, that under Sec. 3 of Rule
77, the court shall set aside a date for proving a will even without
petition when it is delivered to the court having jurisdiction, as
contended by the appellants, the lower court was right in not setting a
date for proving the will of August 16, 1948, because this will was
expressly and absolutely revoked by the subsequent will of October 19,
1948, executed by the same executrix or deceased, which was filed for
allowance on November 1, 1948, with the same Court of First Instance of
Bulacan. According to the attorneys for the appellant, the will dated
August 16, 1948, was sent together with a writing called
“Manifestation” by registered mail on October 30, 1948, from Manila to
the Court of First Instance of Bulacan, by Attorney Mr. Tomas V.
Barnes, and said will must have been received by the Clerk of said
Court on or after November 1, 1943, the date when the subsequent will
of October 19, was filed for probate. It stands to reason that if two
wills are presented for allowance but one of them revokes expressly and
absolutely the other, the revoked will cannot be included in the
probate of the latter subsequent will, because it would be a waste of
time to allow the revoked will if the subsequent revoking will is also
allowed. The revoked will may be probated and allowed only if the
subsequent revoking will is disallowed. (11. McAra vs. MacCay, L. R. 23 Ir., 138; Pepper vs.
Pepper, Ir. R. 5 Eq., 85; Matter of Palmer, 58 L. J. P. D. and Adm.,
44; Matter of Stephens, 22 L. T. Rep., N.S. 727.) [68 C. J. 886]

Besides, the appellants in the present case, who merely alleged in
their petition for relief that they are “nephews and nieces and
therefore legal heirs of the deceased Damasa Crisostomo,” without
specifying the degree of relationship they had with the latter, do not
pretend that if the will of October 19, 1949, be disallowed, they will
inherit the estate left by the testatrix. They contend that said will
should be probated jointly or together with the will of August 16,
1948, and the latter be allowed instead of the former. As in her will
of October 19, 1949, as well in that of August 16, 1948, the testatrix
is leaving all her properties as legacies to other persons, the
appellants have no interest in the probate of said wills, and they can
not appeal from the judgment which allowed one of them instead of the
other.

Appellants argue that they are interested parties and therefore may
appeal in the present case, because in the event the will of October 19
is disallowed and in its stead that of August 16 is allowed, and the
legacies made in the latter are declared invalid or the legatees
incapable to inherit, the legacies will go to appellants. This argument
has no merit. In civil actions and special proceedings, unless
otherwise provided by law, the interest required in order that a person
may be a party on appeal must be material and direct, so that he will
be materially and directly benefited or injured by the court’s order,
decree or judgment; and not indirect or contingent (Espinosa vs.
Barrios, 40 Off. Gaz., [8 Supp. No. 12] p. 145). The interest claimed
by the appellants is purely contingent or dependent upon several
uncertain and future events, to wit: (1) The disallowance of the will
of October 19, 1948, (2) The allowance of the will of August 16, 1948,
and (3) The invalidation of certain legacies left in the said will of
August 16, 1948.

In view of all the foregoing, the order appealed from is affirmed with costs against the appellants. So ordered.

Paras, C. J., Pablo, Bengzon, Padilla, Tuason, Reyes, Jugo and Bautista Angelo, JJ., concur.