IN RE ESTATE OF THE DECEASED LEONARDA MACAM Y CAPILI. NICOLASA MACAM, PETITIONER AND APPELLANT, VS. JUANA GATMAITAN, OPPOSITOR AND APPELLANT.

VILLA-REAL, J.:


This case comprises two appeals, one taken by the
petitioner Nicolasa Macam and the other by the oppositor Juana
Gatmaitan, from an order of the Court of First .Instance of Bulacan, the
dispositive part of which reads as follows:

“In view of the neglect or abandonment by the
interested parties of their respective claims during the proceedings for
the probate of the will, and it appearing that the order allowing the
will has already become final and executory, the court is of the opinion
that it is now too late to consider the so-called codicil as well as
the instrument from which Juana Gatmaitan derives her alleged right.

“Wherefore, the petition for the probate of the
codicil as well as the opposition thereto filed by Juana Gatmaitan is
dismissed, without prejudice to whatever right the latter may have in an
appropriate proceeding before the committee on claims and appraisal, in
accordance with law. So ordered.”

In support of her appeal, the petitioner Nicolasa
Macam assigns the following alleged errors as having been committed by
the trial court in said decision, to wit:

“1. The lower court erred in holding that the
parties have abandoned their respective claims during the proceedings
for the probate of the will.

“2. The lower court erred in declaring that it was
already too late to raise the question as to the legal efficacy of the
codicil executed by the deceased.

“3. The lower court erred in dismissing the
petition for the probate of the codicil before any of the parties had
presented evidence pertinent to the matter.”

The oppositor Juana Gatmaitan, in turn, assigns the
following alleged errors as having been committed by the court a quo
in said decision, to wit:

“1. The lower court erred in holding that in order
for Juana Gatmaitan to preserve her rights, so far as to oppose the
probate of the codicil, it was her duty to oppose to the probate of the
will; and, having opposed the probate only of the codicil, she could no
longer avail herself of the document in her favor, so as to affect the
testamentary dispositions of the deceased Leonarda Macam.

“2. The lower court erred in dismissing the
opposition of Juana Gatmaitan to the probate of the alleged codicil;”

The appellants’ assignments of error, considered
together, raise the following questions of law:

1. Is the probate of a will by final judgment prior to that of a
   codicil thereof a bar to the probate of said codicil?

2. Does the failure to file opposition to the probate of a will
   constitute a bar to the presentation of the codicil for probate?

The following pertinent facts, which are disclosed by the pleadings, are
necessary for the resolution of the questions raised in this appeal:

On March 27, 1933, Nicolasa Macam filed in the Court
of First Instance of Bulacan a petition for the probate of the will
dated July 12, 1932, and of the codicil thereof dated February 17, 1933,
executed by Leonarda Macam who died on March 18, 1933, in the
municipality of Calumpit, of said Province of Bulacan, and for her
appointment as executrix without bond.

When the petition was called for hearing on April
24, 1933, in the absence of the judge, the clerk of the Court of First
Instance of Bulacan, upon instructions of said judge to proceed to take
the evidence in the absence of any opposition, took the evidence
relative to the probate of the will, no opposition to the same having
been filed. Inasmuch as Juana Gatmaitan filed opposition to the probate
of the codicil, said clerk deemed himself unauthorized to take the
evidence relative thereto and refrained from so doing.

The will and the evidence for its probate having
been submitted to the court the vacation Judge Hon. M. Rosauro, on April
28, 1933, entered an order allowing said will and appointing the
petitioner Nicolasa Macam as executrix.

On July 6, 1933, after notice to the parties, the
codicil was called for hearing, opposition having been filed by Juana
Gatmaitan, one of the legatees instituted in the will which had already
been allowed by final and executory judgment. After hearing counsel for
the respective parties, Judge Francisco Enage, then presiding over the
Court of First Instance of Bulacan, entered the order the dispositive
part of which has been quoted at the beginning of this decision.

Section 625 of the Code of Civil Procedure provides
as follows:

“SEC. 625. Allowance necessary, and conclusive
as to execution.—No will shall pass either the real or personal
estate, unless it is proved and allowed in the Court of First Instance,
or by appeal to the Supreme Court; and the allowance by the court of a
will of real and personal estate shall be conclusive as to its due
execution.”

Interpreting the above legal provisions as regards
the scope of the allowance of a will, this court, in numerous decisions,
has laid down the doctrine that the probate of a will is conclusive as
to its due execution and as to the testamentary capacity of the
testator, but not as to the validity of its provisions, and in probate
proceedings the courts are without jurisdiction to determine questions
concerning the validity of the provisions of the will. (Castaneda vs.
Alemany, 3 Phil., 426; Pimentel vs. Palanca, 5 Phil.,
436; Limjuco vs. Ganara, 11 Phil., 393; Austria vs.
Ventenilla, 21 PhiL, 180; In re Estate of Johnson, 39 Phil.,
156; Riera vs. Palmaroli, 40 Phil., 105.)

“A codicil is a written instrument wherein one
declares his last will, in order to take from or add something to the
will, or clarify the provisions thereof.” (Spanish Cyclopaedia of Law,
vol. 5, page 918.)

“A codicil has been defined as some addition to or
qualification of one’s last will and testament.” (28 R. C. L., 197.)

The exercise of the right to make a will, as a
voluntary act, implies the right to revoke, and article 737 of the Civil
Code expressly provides that wills are essentially revocable, provided
that the partial or total revocation is made with the formalities
required for making it, in accor dance with the provisions of article
738 of the same Code,

The fact that a will has been allowed without
opposition and the order allowing the same has become final and
executory is not a bar to the presentation and probate of a codicil,
provided it complies with all the necessary formalities for executing a
will required by section 614 of the Code of Civil Procedure, as amended
by section 1 of Act No. 1934.

It is not necessary that the will and the codicil be
probated together, as the codicil may be concealed by an interested
party and it may not be discovered until after the will has already been
allowed; and they may be presented and probated one after the other (40
Cyc, 1228), since the purpose of the probate proceedings is merely to
determine whether or not the will and the codicil meet all the statutory
requirements for their extrinsic validity, leaving the validity of
their provisions for further consideration.

The appeal taken by the petitioner Nicolasa Macam
is, therefore, well founded and the court a quo erred in flatly
denying her petition for the probate of the codicil on the erroneous
ground that said codicil should have been presented at the same time as
the will.

With respect to the opposition of the
oppositor-appellant Juana Gatmaitan, the fact that she failed to file
opposition to the probate of the will does not prevent her from filing
opposition to the probate of the codicil thereof, inasmuch as the will
may satisfy all the external requisites necessary for its validity, but
the codicil may, at the time of its execution, not be in conformity
therewith. If the testator had testamentary capacity at the time of the
execution of the will, and the will was executed in accordance with all
the statutory requirements, opposition to its probate would not lie. On
the contrary, if at the time of the execution of the codicil the
testator lacked some of the subjective requisites legally capacitating
him to execute the same, or all the statutory requirements were not
complied with in the execution thereof, opposition to its probate would
lie.

The court a quo, therefore, erred in
dismissing the opposition filed by the oppositor-appellant Juana
Gatmaitan to the probate of the codicil of the will of the deceased
Leonarda Macam.

In view of the foregoing, we are of the opinion and
so hold: (1) That the fact that a will has been probated and the order
allowing the same has become final and executory, is not a bar to the
presentation and probate of a codicil, although its existence was known
at the time of the probate of the will; (2) that the failure of the
oppositor to the probate of a codicil to file opposition to the probate
of the will, having knowledge of such proceedings, does not constitute
an abandonment of a right, nor does it deprive her of the right to
oppose the probate of said codicil.

Wherefore, the order appealed from is reversed and
it is ordered that the petition for the probate of the codicil filed by
the petitioner Nicolasa Macam, as well as the opposition to said probate
filed by the oppositor Juana Gatmaitan, be reinstated, without special
pronouncement as to costs. So ordered.

Malcolm, Imperial, Butte, and Goddard,
JJ., concur.