G.R. No. L-47398. April 14, 1941.
Testamentaria del finado Dr. Domingo Zamora. RAYMUNDA SANTOS, solicitante-apelada, vs. BENITO STO. DOMINGO Y OTROS, opositores-apelantes.

FACTS

On July 28, 1938, Raymunda Santos initiated the testate proceedings for the deceased Domingo Zamora and petitioned for the probate of a will he executed on March 6, 1938. The court ordered the publication of the petition and the hearing for probate in accordance with law. After publication and the hearing, the court issued an order on August 22, 1938, allowing the will and appointing Raymunda Santos as the executrix without bond, and also appointing commissioners of appraisal and claims. No opposition to the probate was filed despite the publications. Later, on September 20, 1938, Benito Santo Domingo, Eulalia Santo Domingo, and the legitimate children of the deceased Bernabe Santo Domingo filed a motion for reconsideration, seeking to set aside the order allowing the will. As grounds, they alleged: (1) they were not aware of the probate hearing; (2) they were the only relatives of the deceased Fausta Santo Domingo, the wife of Domingo Zamora; and (3) Domingo Zamora had previously executed another will in which he instituted the oppositors-appellants as his heirs to the exclusion of Raymunda Santos and her brother Felix Santos, and that Raymunda Santos, who was in the house of the deceased, had possession of this first will and would oppose the probate of the authenticated will. The petitioner-appellee opposed the motion for reconsideration. After a hearing, the court denied the motion by order dated September 26, 1938, on the ground that the oppositors lacked personality to intervene in the testate proceedings or to ask for the setting aside of the probate order.

ISSUE

1. Whether the trial court erred in declaring that the oppositors-appellants lacked personality to intervene in the testate proceedings.
2. Whether the trial court abused its discretion in not setting aside the order probating the will.
3. Whether the trial court erred in denying their motion for a new hearing and in not declaring that the oppositors have a right to inherit the share of the deceased Fausta Santo Domingo in the conjugal partnership property with the deceased Domingo Zamora.

RULING

The Supreme Court affirmed the appealed order of September 26, 1938.
1. & 2. The first two assignments of error relate to the order denying the motion for reconsideration and the order probating the will, and are considered together. When the appellants filed their motion for reconsideration, the order probating the will had already become final because the 25-day period fixed by Article 781 of the Code of Civil Procedure, as amended by Act No. 3403, for perfecting an appeal from an order allowing a will had elapsed. The motion, therefore, had to be based on the provisions of Article 113 of the Code of Civil Procedure. Consequently, the appellants had to allege that their negligence was excusable, and the motion had to be accompanied by affidavits of merit. In their motion, the appellants did not allege that their failure to appear at the probate hearing and oppose it was due to excusable negligence or to acts and circumstances beyond their control and unavoidable despite ordinary diligence. Neither did they allege that the alleged prior will existed and could be presented to the court for probate, or that the second will (the one probated) had not revoked the substantial provisions of the first. The supporting affidavits did not contain any of the necessary facts to justify the motion for reconsideration. Benito Santo Domingo’s affidavit merely asserted the existence of a prior will, and Antonio Santos’s affidavit stated that Felix Santos obtained the signature of an instrumental witness after the testator’s death. These affidavits, at best, supplied data for opposing the probate of the authenticated will but did not contain facts making the motion for reconsideration meritorious. Since the appellants neither alleged nor demonstrated prima facie that the probate order was obtained through surprise or inadvertence and that their negligence was excusable, nor that the alleged prior will exists and can be presented for probate and was not revoked by the last will, the trial court did not err in declaring they lacked personality to intervene and in denying the motion for reconsideration.
3. Regarding the third assignment of error, the appellants’ counsel appears to have abandoned the theory in their motion that they were instituted as heirs. Instead, they now claim a right, as heirs of the deceased Fausta Santo Domingo, to her share in the conjugal partnership property commingled with the estate of Domingo Zamora. If this is the case, it is clear they have no right to oppose the probate of the authenticated will. Their intervention in the testate proceedings of Domingo Zamora should commence when they, the executrix, or any other interested party petitions for the liquidation of the conjugal partnership of the deceased spouses, in accordance with Article 2, Rule 75 of the Rules of Court (formerly Article 685 of the Code of Civil Procedure, as amended by Act No. 3176).
The order dated September 26, 1938, is affirmed, with costs against the oppositors-appellants.