G.R. No. L-26317 January 29, 1927Estate of Miguel Mamuya, !eease!. "R#N$%&$' G#G', petitioner-appellant, vs.$'RNEL%' M#M()#$, #M*R'&%' L#R%', "EL%$%#N# *#(+'N, an! $#,#L%N# M#M()#$, opponents-appellees.Nicanor Tavora for appellant.Jose Rivera for appellees.J'-N&'N, J.:The purpose of this action was to obtain the probation of a last will and testament of Miguel Mamuyac, who died on the 2d day of January, 1922, in the municipality of goo of the !rovince of "a #nion. $t appears from the record that on or about the 2%th day of July, 191&, the said Miguel Mamuyac e'ecuted a last will and testament ()'hibit *. $n the month of January, 1922, the said +rancisco ,ago presented a petition in the -ourt of +irst $nstance of the !rovince of "a #nion for the probation of that will. The probation of the same was opposed by -ornelio Mamuyac, mbrosio "ariosa, +eliciana .au/on, and -atalina Mamuyac (civil cause 0o. 1111, !rovince of "a #nion*. fter hearing all of the parties the petition for the probation of said will was denied by the 2onorable -. M. 3illareal on the 2d day of 0ovember, 1924, upon the ground that the deceased had on the15th day of pril, 1919, e'ecuted a new will and testament.6n the 21st day of +ebruary, 1927, the present action was commenced. $ts purpose was to secure the probation of the said will of the 15th day of pril, 1919 ()'hibit 1*. To said petition -ornelio Mamuyac, mbrosio "ariosa, +eliciana .au/on, and -atalina Mamuyac presented their oppositions, alleging (a* that the said will is a copy of the second will and testament e'ecuted by the said Miguel Mamuyac8 (b* that the same had been cancelled and revo9ed during the lifetime of Miguel Mamuyac and (c* that the said will was not the last will and testament of the deceased Miguel Mamuyac.#pon the issue thus presented, the 2onorable nastacio :. Teodoro, ;udge, after hearing the respective parties, denied the probation of said will of pril 15, 1919, upon the groundthat the same had been cancelled and revo9ed in the year 192ecember 4uring those 4< years, could it be believed that she did not even wonder why Martin Jugo did not marry her nor contact her anymore after 0ovember, 1924 - facts that should impel herto as9 her groom before she married him in secrecy, especially so when she was already about 7< years old at the time of marriage.T2$:>= The fact that petitioner bro9e oI from Martin Jugo in 1924 is by itself conclusive demonstration that she new that the man she had openly lived for 22 years as man and wife was a married man with already two children.+6#:T2= 2aving admitted that she 9new the children of respondent :u?na ,ome/, is it possible that she would not have as9ed Martin Jugo whether or not they were his illegitimate or legitimate children and by whomL That is un-+ilipino.+$+T2= 2aving often gone to !asig to the residence of the parents of the deceased testator, is it possible that she would not have 9nown that themother of private respondent 6scar Jugo and -armelita Jugo was respondent :u?na ,ome/, considering that the houses of the parents of Martin Jugo (where he had lived for many years* and that of respondent :u?na ,ome/ were ;ust a few meters awayLDuch pretentions of petitioner Do?a 0epomuceno are unbelievable. Theyare, to say the least, inherently improbable, for they are against the e'perience in common life and the ordinary instincts and promptings of human nature that a woman would not bother at all to as9 the man she was going to marry whether or not he was already married to another, 9nowing that her groom had children. $t would be a story that would strain human credulity to the limit if petitioner did not 9now that Martin Jugo was already a married man in view of the irrefutable fact that it was precisely his marriage to respondent :u?na ,ome/ that led petitioner to brea9 oI with the deceased during their younger years.Moreover, the prohibition in rticle %49 of the -ivil -ode is against the ma9ing of a donation between persons who are living in adultery or concubinage. $t is the donation which becomes void. The giver cannot give even assuming that the recipientmay receive. The very wordings of the Bill invalidate the legacy because the testator admitted he was disposing the properties to a person with whom he had been living in concubinage.B2):)+6:), the petition is >$DM$DD)> for lac9 of merit. The decision of the -ourt of ppeals, now $ntermediate ppellate -ourt, is ++$:M)>. 0o costs.D6 6:>):)>.G.R. No. 160136-E%R& '" R'&EN1' L#M9ersus - $#LLEJ', &R., an!$-%$'-N#+#R%', JJ.1eem/er 6, 2776> ) - $ D $ 6 0 -"")J6, D:., J.= .efore the -ourt is the petition for review on certiorari ?led by the 2eirs of :osendo "asam, represented by :ogelio M. "asam and tty. )dward !. "lonillo, see9ing the reversal of the >ecisionP1Q dated +ebruary 15, 2eed of >onation appearing as >oc. 0o. 74&, !age 0o. 11, .oo9 0o. 3, series of 1951 of the notarial boo9 of the same notary public. ccording to 3icenta #mengan, the children of $sabel -untapay by her second husband (:osendo and Trinidad "asam* own only 2N5 portion of the sub;ect lot. Dhe thus prayed that the complaint for e;ectment be dismissed and that the heirs of :osendo "asam be ordered to pay her damages. The MT-- rendered ;udgment in favor of the heirs of :osendo "asam and directed the e;ectment of 3icenta #mengan. $n so ruling, the MT-- gave credence to the newly discovered last will and testament (entitled Testamento bierto* purportedly e'ecuted by $sabel -untapay where she beAueathed the sub;ect lot to her son, :osendo "asam, thus= ' ' ' my share 1N7th (one-?fth* of the -untapay heirs, bordered on the 0orth by Dr. )lia -anapi8 to the Douth, by -alle guinaldo8 to the )ast, by -alle !. .urgos and the Best, by the late >on "uis lonso8 on the property which is my share stands a house of light materials where $ presently reside8 this 1N7th (one-?fth* share of my inheritance from the -untapays $ leave to my son :osendo "asam and also the aforementioned house of light material ' ' 'P2Q The MT-- reasoned that the heirs of :osendo "asam anchored their claim over the sub;ect lot on the last will and testament of $sabel -untapay while 3icenta #mengan hinged hers on intestate succession and legal conveyances. -iting ;urisprudenceP4Q and rticle 1.P17Q +or there to be res ;udicata, the following elements must be present= (1* ?nality of the former ;udgment8 (2* the court which rendered it had ;urisdiction over the sub;ect matter and the parties8 (4* it must be a ;udgment on the merits8 and (1* there must be, between the ?rst and second actions, identity of parties, sub;ect matter and causes of action.P15Q The third reAuisite, i.e., that the former ;udgment must be a ;udgment on the merits, is not present between the action for partition and the complaint a Auo for unlawful detainer.s aptly observed by the -= 6ur reading of the 6rders (dated June 15, 199% and 6ctober 14, 199%* in -ivil -ase 0o. 191% reveals that the :T-, .ranch 4, Tuguegarao, -agayan, dismissed the complaint for partition because of the discovery of the alleged last will and testament of $sabel -untapay. The court did not declare respondents Preferring to the petitioners hereinQ the owners of the disputed property. $t simply ordered them to petition the court for the allowance of the will to determine the proper legitimes of the heirs prior to any partition. $nstead of ?ling the appropriate petition for the probate of $sabel -untapays will, the respondents ?led the present complaint for unlawful detainer. 3iewed from this perspective, we have no doubt that the courts 6rders cited by the respondents are not ;udgments on the merits that would result in the application of the principle of res ;udicata. Bhere the trial court merely refrained from proceeding with the case and granted the motion to dismiss with some clari?cation without conducting a trial on the merits, there is no res ;udicata.P1%Q +urther, it is not Auite correct for petitioners to contend that the children of $sabel -untapay by her ?rst marriage could not have conveyed portions of the sub;ect lot to respondent, as she had claimed, because until the present, it is still covered by 6-T 0os. 195 and 1eliver. F The person who has the custody of a will shall, within thirty days after he 9nows of the death of the testator, deliver the will into the courtwhich has ;urisdiction, or to the e'ecutor named in the will.Dec. 52%. )'ecutor to !resent Bill and ccept or :efuse Trust. Fperson named as e'ecutor in a will, shall within thirty days after he 9nows of the death of the testor, or within thirty days after he 9nows that he is named e'ecutor, if he obtained such 9nowledge after 9nowing of the death of the testor, present such will to the court which has ;urisdiction, unless the will has been otherwise returned to said court, and shall, withinsuch period, signify to the court his acceptance of the trust, or ma9e 9nown in writing his refusal to accept it.Dec. 52&. !enalty. Fperson who neglects any of the duties reAuired in the two proceeding sections, unless he gives a satisfactory e'cuse to the court, shall be sub;ect toa ?ne not e'ceeding one thousand dollars.Dec. 529. !erson :etaining Bill may be -ommitted. F $f a person having custody of a will after the death of the testator neglects without reasonable cause to deliver the same to the court having ;urisdiction, after notice by the court so to do, he may be committed to the prison of the province by a warrant issued by the court, and there 9ept in close con?nement until he delivers the will.The foregoing provisions are now embodied in :ule %5 of the new :ules of -ourt, which too9 eIect on July 1, 191