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Balanay Vs Martinez
Balanay Vs Martinez
Facts:
Testatrix was survived by Felix Sr. [husband], and by their six
legitimate children named Felix Jr [petitioner] and the private
respondents. In February 1973, Felix Jr. filed in CFI Davao a
petition for the probate of the will. Felix Sr and Avelina
opposed the probate. Later, Felix Sr. manifested, in a signed
instrument captioned Conformation, that out of respect for
his wife's will, he waived and renounced his hereditary rights
in favor of the children and agreed for the probate.
Issue:
Whether or not the will is intrinsically void on the ground that
there is preterition of the surviving spouse. [NO]
Ruling:
Judgment Appealed from is Affirmed.
It results that the lower court erred in not proceeding with the
probate of the will as contemplated in its uncancelled order of
June 18, 1973. Save in an extreme case where the will on its
face is intrinsically void, it is the probate court's duty to pass
first upon the formal validity of the will. Generally, the probate
of the will is mandatory (Art. 838, Civil Code; Guevara vs.
Guevara, 74 Phil. 479 and 98 Phil. 249; Fernandez vs.
Dimagiba, L-23638, October 12, 1967, 21 SCRA 428).
The law has a tender regard for the wishes of the testator as
expressed in his will because any disposition therein is better
than that which the law can make (Castro vs. Bustos, L-25913,
February 28, 1969, 27 SCRA 327, 341).
We also take this occasion to point out that the probate court's
appointment of its branch clerk of court as special
administrator (p. 30, Rollo) is not a salutary practice because
it might engender the suspicion that the probate Judge and his
clerk of court are in cahoots in milking the decedent's estate.
Should the branch clerk of court commit any abuse or
devastavit in the course of his administration, the probate
Judge might find it difficult to hold him to a strict
accountability. A court employee should devote his official
time to his official duties and should not have as a sideline the
administration of a decedent's estate.
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