G.R. No. 82027. March 29, 1990.

ROMARICO G. VITUG, petitioner, vs. THE HONORABLE COURT OF

APPEALS and ROWENA FAUSTINO-CORONA, respondents.

Civil Law; Contracts; Conveyance in question is not one of mortis causa which should be
embodied in a will; Definition of a Will.The conveyance in question is not, first of all, one
of mortis causa, which should be embodied in a will. A will has been defined as a personal,
solemn, revocable and free act by which a capacitated person disposes of his property and
rights and declares or complies with duties to take effect after his death. In other words,
the bequest or device must pertain to the testator. In this case, the monies subject of
savings account No. 35342-038 were in the nature of conjugal funds.
Same; Same; Same; Same; Survivorship agreements are permitted by the Civil Code.
The validity of the contract seems debatable by reason of its survivor-take-all feature, but
in reality, that contract imposed a mere obligation with a term, the term being death. Such
agreements are permitted by the Civil Code.
Same; Same; Same; Same; Same; Although the survivorship agreement is per se not
contrary to law its operation or effect may be violative of the Law.But although the
survivorship agreement is per se not contrary to law its operation or effect may be violative
of the law. For instance, if it be shown in a given case that such agreement is a mere cloak
to hide an inofficious donation, to transfer property in fraud of creditors, or to defeat the
legitime of a forced heir, it may be assailed and annulled upon such grounds. No such vice
has been imputed and established against the agreement involved in this case.
Same; Same; Same; Same; Same; Same; No demonstration here that survivorship
agreement had been executed for unlawful purposes or as held by the respondent court in
order to frustrate our laws on wills, donations and conjugal partnership.There is no
demonstration here that the survivorship agreement had been executed for such unlawful
purposes, or, as held by the respondent court, in order to frustrate our laws on wills,
donations, and conjugal partnership.

PETITION to review the decision and resolution of the Court of Appeals.

The facts are stated in the opinion of the Court.
Rufino B. Javier Law Office for petitioner.
Quisumbing, Torres & Evangelista for private respondent.
SARMIENTO, J.:
This case is a chapter in an earlier suit decided by this Court involving the probate
of the two wills of the late Dolores Luchangco Vitug, who died in New York, U.S.A.,
on November 10, 1980, naming private respondent Rowena Faustino-Corona
1

executrix. In our said decision, we upheld the appointment of Nenita Alonte as cospecial administrator of Mrs. Vitugs estate with her (Mrs. Vitugs) widower,
petitioner Romarico G. Vitug, pending probate.
On January 13, 1985, Romarico G. Vitug filed a motion asking for authority from
the probate court to sell certain shares of stock and real properties belonging to the
estate to cover allegedly his advances to the estate in the sum of P667,731.66, plus
interests, which he claimed were personal funds. As found by the Court of
Appeals, the alleged advances consisted of P58,147.40 spent for the payment of
estate tax, P518,834.27 as deficiency estate tax, and P90,749.99 as increment
thereto. According to Mr. Vitug, he withdrew the sums of P518,834.27 and
P90,749.99 from savings account No. 35342-038 of the Bank of America, Makati,
Metro Manila.
On April 12, 1985, Rowena Corona opposed the motion to sell on the ground that
the same funds withdrawn from savings account No. 35342-038 were conjugal
partnership properties and part of the estate, and hence, there was allegedly no
ground for reimbursement. She also sought his ouster for failure to include the
sums in question for inventory and for concealment of funds belonging to the
estate.
Vitug insists that the said funds are his exclusive property having acquired the
same through a survivorship agreement executed with his late wife and the bank on
June 19, 1970. The agreement provides:
2

We hereby agree with each other and with the BANK OF AMERICAN NATIONAL TRUST
AND SAVINGS ASSOCIATION (hereinafter referred to as the BANK), that all money now
or hereafter deposited by us or any or either of us with the BANK in our joint savings
current account shall be the property of all or both of us and shall be payable to and
collectible or withdrawable by either or any of us during our lifetime, and after the death of
either or any of us shall belong to and be the sole property of the survivor or survivors, and
shall be payable to and collectible or withdrawable by such survivor or survivors.
We further agree with each other and the BANK that the receipt or check of either, any
or all of us during our lifetime, or the receipt or check of the survivor or survivors, for any
payment or withdrawal made for our above-mentioned account shall be valid and sufficient
release and discharge of the BANK for such payment or withdrawal.
5

The trial court upheld the validity of this agreement and granted the motion to sell
some of the estate of Dolores L. Vitug, the proceeds of which shall be used to pay the
personal funds of Romarico Vitug in the total sum of P667,731.66 x x x.
On the other hand, the Court of Appeals, in the petition for certiorari filed by the
herein private respondent, held that the above-quoted survivorship agreement
6

constitutes a conveyance mortis causa which did not comply with the formalities of
a valid will as prescribed by Article 805 of the Civil Code, and secondly, assuming
that it is a mere donation inter vivos, it is a prohibited donation under the
provisions of Article 133 of the Civil Code.
The dispositive portion of the decision of the Court of Appeals states:
8

WHEREFORE, the order of respondent Judge dated November 26, 1985 (Annex II, petition)
is hereby set aside insofar as it granted private respondents motion to sell certain
properties of the estate of Dolores L. Vitug for reimbursement of his alleged advances to the
estate, but the same order is sustained in all other respects. In addition, respondent Judge
is directed to include provisionally the deposits in Savings Account No. 35342-038 with the
Bank of America, Makati, in the inventory of actual properties possessed by the spouses at
the time of the decedents death. With costs against private respondent.
10

In his petition, Vitug, the surviving spouse, assails the appellate courts ruling on
the strength of our decisions inRivera v. Peoples Bank and Trust Co. and Macam
v. Gatmaitan in which we sustained the validity of survivorship agreements and
considering them as aleatory contracts.
The petition is meritorious.
The conveyance in question is not, first of all, one of mortis causa, which should
be embodied in a will. A will has been defined as a personal, solemn, revocable and
free act by which a capacitated person disposes of his property and rights and
declares or complies with duties to take effect after his death. In other words, the
bequest or device must pertain to the testator. In this case, the monies subject of
savings account No. 35342-038 were in the nature of conjugal funds. In the case
relied on, Rivera v. Peoples Bank and Trust Co., we rejected claims that a
survivorship agreement purports to deliver one partys separate properties in favor
of the other, but simply, their joint holdings:
11

12

13

14

15

16

xxx
xxx
xxx
x x x Such conclusion is evidently predicated on the assumption that Stephenson was the
exclusive owner of the funds deposited in the bank, which assumption was in turn based on
the facts (1) that the account was originally opened in the name of Stephenson alone and (2)
that Ana Rivera served only as housemaid of the deceased. But it not infrequently
happens that a person deposits money in the bank in the name of another; and in the
instant case it also appears that Ana Rivera served her master for about nineteen years
without actually receiving her salary from him. The fact that subsequently Stephenson
transferred the account to the name of himself and/or Ana Rivera and executed with the
latter the survivorship agreement in question although there was no relation of kinship
between them but only that of master and servant, nullifies the assumption that

Stephenson was the exclusive owner of the bank account. In the absence, then, of clear proof
to the contrary, we must give full faith and credit to the certificate of deposit which recites
in effect that the funds in question belonged to Edgar Stephenson and Ana Rivera; that they
were joint (and several) owners thereof; and that either of them could withdraw any part or
the whole of said account during the lifetime of both, and the balance, if any, upon the death
of either, belonged to the survivor.
xxx
xxx
xxx
17

In Macam v. Gatmaitan, it was held:

18

xxx
xxx
xxx
This Court is of the opinion that Exhibit C is an aleatory contract whereby, according to
article 1790 of the Civil Code, one of the parties or both reciprocally bind themselves to give
or do something as an equivalent for that which the other party is to give or do in case of
the occurrence of an event which is uncertain or will happen at an indeterminate time. As
already stated, Leonarda was the owner of the house and Juana of the Buick automobile
and most of the furniture. By virtue of Exhibit C, Juana would become the owner of the
house in case Leonarda died first, and Leonarda would become the owner of the automobile
and the furniture if Juana were to die first. In this manner Leonarda and Juana
reciprocally assigned their respective property to one another conditioned upon who might
die first, the time of death determining the event upon which the acquisition of such right
by the one or the other depended. This contract, as any other contract, is binding upon the
parties thereto. Inasmuch as Leonarda had died before Juana, the latter thereupon
acquired the ownership of the house, in the same manner as Leonarda would have acquired
the ownership of the automobile and of the furniture if Juana had died first.
xxx
xxx
xxx
19

There is no showing that the funds exclusively belonged to one party, and hence it
must be presumed to be conjugal, having been acquired during the existence of the
marital relations.
Neither is the survivorship agreement a donation inter vivos, for obvious reasons,
because it was to take effect after the death of one party. Secondly, it is not a
donation between the spouses because it involved no conveyance of a spouses own
properties to the other.
It is also our opinion that the agreement involves no modification of the conjugal
partnership, as held by the Court of Appeals, by mere stipulation, and that it is
no cloak to circumvent the law on conjugal property relations. Certainly, the
spouses are not prohibited by law to invest conjugal property, say, by way of a joint
and several bank account, more commonly denominated in banking parlance as an
and/or account. In the case at bar, when the spouses Vitug opened savings account
20

21

23

22

No. 35342-038, they merely put what rightfully belonged to them in a moneymaking venture. They did not dispose of it in favor of the other, which would have
arguably been sanctionable as a prohibited donation. And since the funds were
conjugal, it can not be said that one spouse could have pressured the other in
placing his or her deposits in the money pool.
The validity of the contract seems debatable by reason of its survivor-take-all
feature, but in reality, that contract imposed a mere obligation with a term, the
term being death. Such agreements are permitted by the Civil Code.
Under Article 2010 of the Code:
24

ART. 2010. By an aleatory contract, one of the parties or both reciprocally bind themselves
to give or to do something in consideration of what the other shall give or do upon the
happening of an event which is uncertain, or which is to occur at an indeterminate time.

Under the aforequoted provision, the fulfillment of an aleatory contract depends on

either the happening of an event which is (1) uncertain, (2) which is to occur at an
indeterminate time. A survivorship agreement, the sale of a sweepstake ticket, a
transaction stipulating on the value of currency, and insurance have been held to
fall under the first category, while a contract for life annuity or pension under
Article 2021, et sequentia, has been categorized under the second. In either case,
the element of risk is present. In the case at bar, the risk was the death of one party
and survivorship of the other.
However, as we have warned:
25

xxx
xxx
xxx
But although the survivorship agreement is per se not contrary to law its operation or
effect may be violative of the law. For instance, if it be shown in a given case that such
agreement is a mere cloak to hide an inofficious donation, to transfer property in fraud of
creditors, or to defeat the legitime of a forced heir, it may be assailed and annulled upon
such grounds. No such vice has been imputed and established against the agreement
involved in this case.
xxx
xxx
xxx
26

There is no demonstration here that the survivorship agreement had been executed
for such unlawful purposes, or, as held by the respondent court, in order to frustrate
our laws on wills, donations, and conjugal partnership.
The conclusion is accordingly unavoidable that Mrs. Vitug having predeceased
her husband, the latter has acquired upon her death a vested right over the
amounts under savings account No. 35342-038 of the Bank of America. Insofar as
the respondent court ordered their inclusion in the inventory of assets left by Mrs.

Vitug, we hold that the court was in error. Being the separate property of petitioner,
it forms no more part of the estate of the deceased.
WHEREFORE, the decision of the respondent appellate court, dated June 29,
1987, and its resolution, dated February 9, 1988, are SET ASIDE.
No costs.
SO ORDERED.
Melencio-Herrera (Chairman), Paras, Padilla andRegalado JJ., concur.
Decision and resolution set aside.

G.R. No. 174489.April 11, 2012.*

ANTONIO B. BALTAZAR, SEBASTIAN M. BALTAZAR, ANTONIO L.
MANGALINDAN, ROSIE M. MATEO, NENITA A. PACHECO, VIRGILIO REGALA,
JR., and RAFAEL TITCO, petitioners, vs. LORENZO LAXA, respondent.
Civil Law; Wills; Testamentary Succession; Due execution of the will or its extrinsic validity
pertains to whether the testator, being of sound mind, freely executed the will in accordance with the
formalities prescribed by law.Due execution of the will or its extrinsic validity pertains to whether the
testator, being of sound mind, freely executed the will in accordance with the formalities prescribed by
law. These formalities are enshrined in Articles 805 and 806 of the New Civil Code, to wit: Art. 805.
Every will, other than a holographic will, must be subscribed at the end thereof by the testator himself or
by the testators name written by some other person in his presence, and by his express direction, and
attested and subscribed by three or more credible witnesses in the presence of the testator and of one
another. The testator or the person requested by him to write his name and the instrumental witnesses of
the will, shall also sign, as aforesaid, each and every page thereof, except the last, on the left margin, and
all the pages shall be numbered correlatively in letters placed on the upper part of each page. The
attestation shall state the number of pages used upon which the will is written, and the fact that the
testator signed the will and every page thereof, or caused some other person to write his name, under his
express direction, in the presence of the instrumental witnesses, and that the latter witnessed and signed
the will and all the pages thereof in the presence of the testator and of one another. If the attestation clause
is in a language not known to the witnesses, it shall be interpreted to them. Art. 806. Every will must be

acknowledged before a notary public by the testator and the witnesses. The notary public shall not be
required to retain a copy of the will, or file another with the Office of the Clerk of Court.
Same; Same; Same; The state of being forgetful does not necessarily make a person mentally
unsound so as to render him unfit to execute a Will.We agree with the position of the CA that the state
of being forgetful does not necessarily make a person mentally unsound so as to render him unfit to
execute a Will. Forgetfulness is not equivalent to being of unsound mind. Besides, Article 799 of the New
Civil Code states: Art. 799. To be of sound mind, it is not necessary that the testator be in full possession
of all his reasoning faculties, or that his mind be wholly unbroken, unimpaired, or unshattered by disease,
injury or other cause. It shall be sufficient if the testator was able at the time of making the will to know
the nature of the estate to be disposed of, the proper objects of his bounty, and the character of the
testamentary act.
Same; Same; Same; A purported will is not to be denied legalization on dubious grounds.
Otherwise, the very institution of testamentary succession will be shaken to its foundation, for even if a
will has been duly executed in fact, whether it will be probated would have to depend largely on the
attitude of those interested in the estate of the deceased.It is worth stressing that bare arguments, no
matter how forceful, if not based on concrete and substantial evidence cannot suffice to move the Court to
uphold said allegations. Furthermore, a purported will is not [to be] denied legalization on dubious
grounds. Otherwise, the very institution of testamentary succession will be shaken to its foundation, for
even if a will has been duly executed in fact, whether x x x it will be probated would have to depend
largely on the attitude of those interested in [the estate of the deceased].
Same; Same; Same; The very existence of the Will is in itself prima facie proof that the supposed
testatrix has willed that her estate be distributed in the manner therein provided, and it is incumbent upon
the state that, if legally tenable, such desire be given full effect independent of the attitude of the parties
affected thereby.It bears stressing that [i]rrespective x x x of the posture of any of the parties as
regards the authenticity and due execution of the will x x x in question, it is the mandate of the law that it
is the evidence before the court and/or [evidence that] ought to be before it that is controlling. The very
existence of [the Will] is in itselfprima facie proof that the supposed [testatrix] has willed that [her] estate
be distributed in the manner therein provided, and it is incumbent upon the state that, if legally tenable,
such desire be given full effect independent of the attitude of the parties affected thereby. This, coupled
with Lorenzos established relationship with Paciencia, the evidence and the testimonies of disinterested
witnesses, as opposed to the total lack of evidence presented by petitioners apart from their self-serving
testimonies, constrain us to tilt the balance in favor of the authenticity of the Will and its allowance for
probate.

PETITION for review on certiorari of the decision and resolution of the Court of Appeals.
The facts are stated in the opinion of the Court.
Filemon Al. Manlutac for petitioners.
Viray, Rongcal, Beltran, Yumul & Viray Law Officesfor respondent.
DEL CASTILLO,J.:
It is incumbent upon those who oppose the probate of a will to clearly establish that the
decedent was not of sound and disposing mind at the time of the execution of said will.
Otherwise, the state is duty-bound to give full effect to the wishes of the testator to distribute his
estate in the manner provided in his will so long as it is legally tenable.1
Before us is a Petition for Review on Certiorari2 of the June 15, 2006 Decision3 of the Court
of Appeals (CA) in CA-G.R. CV No. 80979 which reversed the September 30, 2003 Decision 4 of
the Regional Trial Court (RTC), Branch 52, Guagua, Pampanga in Special Proceedings No. G1186. The assailed CA Decision granted the petition for probate of the notarial will of Paciencia
Regala (Paciencia), to wit:

WHEREFORE, premises considered, finding the appeal to be impressed with merit, the decision in
SP. PROC. NO. G-1186 dated 30 September 2003, is hereby SET ASIDE and a new one entered
GRANTING the petition for the probate of the will of PACIENCIA REGALA.
SO ORDERED.
5

Also assailed herein is the August 31, 2006 CA Resolution 6 which denied the Motion for
Reconsideration thereto.
Petitioners call us to reverse the CAs assailed Decision and instead affirm the Decision of the
RTC which disallowed the notarial will of Paciencia.
Factual Antecedents
Paciencia was a 78 year old spinster when she made her last will and testament entitled Tauli
Nang Bilin o Testamento Miss Paciencia Regala7 (Will) in the Pampango dialect on September
13, 1981. The Will, executed in the house of retired Judge Ernestino G. Limpin (Judge Limpin),
was read to Paciencia twice. After which, Paciencia expressed in the presence of the instrumental
witnesses that the document is her last will and testament. She thereafter affixed her signature at
the end of the said document on page 38 and then on the left margin of pages 1, 2 and 4 thereof.9
The witnesses to the Will were Dra. Maria Lioba A. Limpin (Dra. Limpin), Francisco Garcia
(Francisco) and Faustino R. Mercado (Faustino). The three attested to the Wills due execution
by affixing their signatures below its attestation clause 10 and on the left margin of pages 1, 2 and
4 thereof,11 in the presence of Paciencia and of one another and of Judge Limpin who acted as
notary public.
Childless and without any brothers or sisters, Paciencia bequeathed all her properties to
respondent Lorenzo R. Laxa (Lorenzo) and his wife Corazon F. Laxa and their children Luna
Lorella Laxa and Katherine Ross Laxa, thus:
x x x x
FourthIn consideration of their valuable services to me since then up to the present by the spouses
LORENZO LAXA and CORAZON F. LAXA, I hereby BEQUEATH, CONVEY and GIVE all my
properties enumerated in parcels 1 to 5 unto the spouses LORENZO R. LAXA and CORAZON F. LAXA
and their children, LUNA LORELLA LAXA and KATHERINE LAXA, and the spouses Lorenzo R. Laxa
and Corazon F. Laxa both of legal age, Filipinos, presently residing at Barrio Sta. Monica, [Sasmuan],
Pampanga and their children, LUNA LORELLA and KATHERINE ROSS LAXA, who are still not of
legal age and living with their parents who would decide to bequeath since they are the children of the
spouses;
xxxx
[Sixth]Should other properties of mine may be discovered aside from the properties mentioned in
this last will and testament, I am also bequeathing and giving the same to the spouses Lorenzo R. Laxa
and Corazon F. Laxa and their two children and I also command them to offer masses yearly for the
repose of my soul and that of D[]a Nicomeda Regala, Epifania Regala and their spouses and with respect
to the fishpond situated at San Antonio, I likewise command to fulfill the wishes of D[]a Nicomeda
Regala in accordance with her testament as stated in my testament. x x x
12

The filial relationship of Lorenzo with Paciencia remains undisputed. Lorenzo is Paciencias
nephew whom she treated as her own son. Conversely, Lorenzo came to know and treated
Paciencia as his own mother.13 Paciencia lived with Lorenzos family in Sasmuan, Pampanga and
it was she who raised and cared for Lorenzo since his birth. Six days after the execution of the
Will or on September 19, 1981, Paciencia left for the United States of America (USA). There,
she resided with Lorenzo and his family until her death on January 4, 1996.
In the interim, the Will remained in the custody of Judge Limpin.

More than four years after the death of Paciencia or on April 27, 2000, Lorenzo filed a
petition14 with the RTC of Guagua, Pampanga for the probate of the Will of Paciencia and for the
issuance of Letters of Administration in his favor, docketed as Special Proceedings No. G-1186.
There being no opposition to the petition after its due publication, the RTC issued an Order on
June 13, 200015allowing Lorenzo to present evidence on June 22, 2000. On said date, Dra.
Limpin testified that she was one of the instrumental witnesses in the execution of the last will
and testament of Paciencia on September 13, 1981. 16 The Will was executed in her fathers
(Judge Limpin) home office, in her presence and of two other witnesses, Francisco and
Faustino.17 Dra. Limpin positively identified the Will and her signatures on all its four
pages.18 She likewise positively identified the signature of her father appearing
thereon.19 Questioned by the prosecutor regarding Judge Limpins present mental fitness, Dra.
Limpin testified that her father had a stroke in 1991 and had to undergo brain surgery.20 The judge
can walk but can no longer talk and remember her name. Because of this, Dra. Limpin stated that
her father can no longer testify in court.21
The following day or on June 23, 2000, petitioner Antonio Baltazar (Antonio) filed an
opposition22 to Lorenzos petition. Antonio averred that the properties subject of Paciencias Will
belong to Nicomeda Regala Mangalindan, his predecessor-in-interest; hence, Paciencia had no
right to bequeath them to Lorenzo.23
Barely a month after or on July 20, 2000, Antonio, now joined by petitioners Sebastian M.
Baltazar, Virgilio Regala, Jr., Nenita A. Pacheco, Felix B. Flores, Rafael Titco, Rosie M. Mateo
(Rosie) and Antonio L. Mangalindan filed a Supplemental Opposition 24 contending that
Paciencias Will was null and void because ownership of the properties had not been transferred
and/or titled to Paciencia before her death pursuant to Article 1049, paragraph 3 of the Civil
Code.25 Petitioners also opposed the issuance of Letters of Administration in Lorenzos favor
arguing that Lorenzo was disqualified to be appointed as such, he being a citizen and resident of
the USA.26 Petitioners prayed that Letters of Administration be instead issued in favor of
Antonio.27
Later still on September 26, 2000, petitioners filed an Amended Opposition 28 asking the RTC
to deny the probate of Paciencias Will on the following grounds: the Will was not executed and
attested to in accordance with the requirements of the law; that Paciencia was mentally incapable
to make a Will at the time of its execution; that she was forced to execute the Will under duress
or influence of fear or threats; that the execution of the Will had been procured by undue and
improper pressure and influence by Lorenzo or by some other persons for his benefit; that the
signature of Paciencia on the Will was forged; that assuming the signature to be genuine, it was
obtained through fraud or trickery; and, that Paciencia did not intend the document to be her
Will. Simultaneously, petitioners filed an Opposition and Recommendation 29reiterating their
opposition to the appointment of Lorenzo as administrator of the properties and requesting for
the appointment of Antonio in his stead.
On January 29, 2001, the RTC issued an Order 30denying the requests of both Lorenzo and
Antonio to be appointed administrator since the former is a citizen and resident of the USA while
the latters claim as a co-owner of the properties subject of the Will has not yet been established.
Meanwhile, proceedings on the petition for the probate of the Will continued. Dra. Limpin
was recalled for cross-examination by the petitioners. She testified as to the age of her father at
the time the latter notarized the Will of Paciencia; the living arrangements of Paciencia at the
time of the execution of the Will; and the lack of photographs when the event took place.31

Aside from Dra. Limpin, Lorenzo and Monico Mercado (Monico) also took the witness stand.
Monico, son of Faustino, testified on his fathers condition. According to him his father can no
longer talk and express himself due to brain damage. A medical certificate was presented to the
court to support this allegation.32
For his part, Lorenzo testified that: from 1944 until his departure for the USA in April 1980,
he lived in Sasmuan, Pampanga with his family and his aunt, Paciencia; in 1981 Paciencia went
to the USA and lived with him and his family until her death in January 1996; the relationship
between him and Paciencia was like that of a mother and child since Paciencia took care of him
since birth and took him in as an adopted son; Paciencia was a spinster without children, and
without brothers and sisters; at the time of Paciencias death, she did not suffer from any mental
disorder and was of sound mind, was not blind, deaf or mute; the Will was in the custody of
Judge Limpin and was only given to him after Paciencias death through Faustino; and he was
already residing in the USA when the Will was executed. 33 Lorenzo positively identified the
signature of Paciencia in three different documents and in the Will itself and stated that he was
familiar with Paciencias signature because he accompanied her in her transactions. 34 Further,
Lorenzo belied and denied having used force, intimidation, violence, coercion or trickery upon
Paciencia to execute the Will as he was not in the Philippines when the same was executed. 35 On
cross-examination, Lorenzo clarified that Paciencia informed him about the Will shortly after her
arrival in the USA but that he saw a copy of the Will only after her death.36
As to Francisco, he could no longer be presented in court as he already died on May 21, 2000.
For petitioners, Rosie testified that her mother and Paciencia were first cousins. 37 She claimed
to have helped in the household chores in the house of Paciencia thereby allowing her to stay
therein from morning until evening and that during the period of her service in the said
household, Lorenzos wife and his children were staying in the same house. 38 She served in the
said household from 1980 until Paciencias departure for the USA on September 19, 1981. 39On
September 13, 1981, Rosie claimed that she saw Faustino bring something for Paciencia to
sign at the latters house.40 Rosie admitted, though, that she did not see what that something
was as same was placed inside an envelope.41 However, she remembered Paciencia instructing
Faustino to first look for money before she signs them. 42 A few days after or on September 16,
1981, Paciencia went to the house of Antonios mother and brought with her the said
envelope.43 Upon going home, however, the envelope was no longer with Paciencia.44Rosie
further testified that Paciencia was referred to as magulyan or forgetful because she would
sometimes leave her wallet in the kitchen then start looking for it moments later. 45 On cross
examination, it was established that Rosie was neither a doctor nor a psychiatrist, that her
conclusion that Paciencia was magulyan was based on her personal assessment,46 and that it
was Antonio who requested her to testify in court.47
In his direct examination, Antonio stated that Paciencia was his aunt. 48 He identified the Will
and testified that he had seen the said document before because Paciencia brought the same to his
mothers house and showed it to him along with another document on September 16,
1981.49Antonio alleged that when the documents were shown to him, the same were still
unsigned.50 According to him, Paciencia thought that the documents pertained to a lease of one of
her rice lands,51 and it was he who explained that the documents were actually a special power of
attorney to lease and sell her fishpond and other properties upon her departure for the USA, and a
Will which would transfer her properties to Lorenzo and his family upon her death. 52Upon
hearing this, Paciencia allegedly uttered the following words: Why will I never [return], why
will I sell all my properties? Who is Lorenzo? Is he the only [son] of God? I have other

relatives [who should] benefit from my properties. Why should I die already? 53 Thereafter,
Antonio advised Paciencia not to sign the documents if she does not want to, to which the latter
purportedly replied, I know nothing about those, throw them away or it is up to you. The more I
will not sign them.54 After which, Paciencia left the documents with Antonio. Antonio kept the
unsigned documents and eventually turned them over to Faustino on September 18, 1981.55
Ruling of the Regional Trial Court
On September 30, 2003, the RTC rendered its Decision56denying the petition thus:
WHEREFORE, this court hereby (a) denies the petition dated April 24, 2000; and (b) disallows the
notarized will dated September 13, 1981 of Paciencia Regala.
SO ORDERED.
57

The trial court gave considerable weight to the testimony of Rosie and concluded that at the
time Paciencia signed the Will, she was no longer possessed of sufficient reason or strength of
mind to have testamentary capacity.58
Ruling of the Court of Appeals
On appeal, the CA reversed the RTC Decision and granted the probate of the Will of
Paciencia. The appellate court did not agree with the RTCs conclusion that Paciencia was of
unsound mind when she executed the Will. It ratiocinated that the state of being magulyan
does not make a person mentally unsound so [as] to render [Paciencia] unfit for executing a
Will.59 Moreover, the oppositors in the probate proceedings were not able to overcome the
presumption that every person is of sound mind. Further, no concrete circumstances or events
were given to prove the allegation that Paciencia was tricked or forced into signing the Will.60
Petitioners moved for reconsideration61 but the motion was denied by the CA in its
Resolution62 dated August 31, 2006.
Hence, this petition.
Issues
Petitioners come before this Court by way of Petition for Review on Certiorari ascribing
upon the CA the following errors:
I.
THE HONORABLE COURT OF APPEALS SERIOUSLY ERRED WHEN IT ALLOWED THE
PROBATE OF PACIENCIAS WILL DESPITE RESPONDENTS UTTER FAILURE TO COMPLY
WITH SECTION 11, RULE 76 OF THE RULES OF COURT;
II.
THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN MAKING CONCLUSIONS NOT
IN ACCORDANCE WITH THE EVIDENCE ON RECORD;
III.
THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN RULING THAT PETITIONERS
FAILED TO PROVE THAT PACIENCIA WAS NOT OF SOUND MIND AT THE TIME THE WILL
WAS ALLEGEDLY EXECUTED
63

The pivotal issue is whether the authenticity and due execution of the notarial Will was
sufficiently established to warrant its allowance for probate.
Our Ruling
We deny the petition.

Faithful compliance with the formalities

laid down by law is apparent from the
face of the Will.
Courts are tasked to determine nothing more than the extrinsic validity of a Will in probate
proceedings.64 This is expressly provided for in Rule 75, Section 1 of the Rules of Court, which
states:
Rule 75
Production of Will. Allowance of
Will Necessary.
Section1.Allowance necessary. Conclusive as to execution.No will shall pass either real or
personal estate unless it is proved and allowed in the proper court. Subject to the right of appeal, such
allowance of the will shall be conclusive as to its due execution.

Due execution of the will or its extrinsic validity pertains to whether the testator, being of
sound mind, freely executed the will in accordance with the formalities prescribed by
law.65 These formalities are enshrined in Articles 805 and 806 of the New Civil Code, to wit:
Art.805.Every will, other than a holographic will, must be subscribed at the end thereof by the
testator himself or by the testators name written by some other person in his presence, and by his express
direction, and attested and subscribed by three or more credible witnesses in the presence of the testator
and of one another.
The testator or the person requested by him to write his name and the instrumental witnesses of the
will, shall also sign, as aforesaid, each and every page thereof, except the last, on the left margin, and all
the pages shall be numbered correlatively in letters placed on the upper part of each page.
The attestation shall state the number of pages used upon which the will is written, and the fact that
the testator signed the will and every page thereof, or caused some other person to write his name, under
his express direction, in the presence of the instrumental witnesses, and that the latter witnessed and
signed the will and all the pages thereof in the presence of the testator and of one another.
If the attestation clause is in a language not known to the witnesses, it shall be interpreted to them.
Art. 806.Every will must be acknowledged before a notary public by the testator and the
witnesses. The notary public shall not be required to retain a copy of the will, or file another with the
Office of the Clerk of Court.

Here, a careful examination of the face of the Will shows faithful compliance with the
formalities laid down by law. The signatures of the testatrix, Paciencia, her instrumental
witnesses and the notary public, are all present and evident on the Will. Further, the attestation
clause explicitly states the critical requirement that the testatrix and her instrumental witnesses
signed the Will in the presence of one another and that the witnesses attested and subscribed to
the Will in the presence of the testator and of one another. In fact, even the petitioners acceded
that the signature of Paciencia in the Will may be authentic although they question her state of
mind when she signed the same as well as the voluntary nature of said act.
The burden to prove that Paciencia
was of unsound mind at the time of
the execution of the will lies on the
shoulders of the petitioners.
Petitioners, through their witness Rosie, claim that Paciencia was magulyan or forgetful so
much so that it effectively stripped her of testamentary capacity. They likewise claimed in their
Motion for Reconsideration66 filed with the CA that Paciencia was not only magulyan but was
actually suffering from paranoia.67
We are not convinced.

We agree with the position of the CA that the state of being forgetful does not necessarily
make a person mentally unsound so as to render him unfit to execute a Will.68 Forgetfulness is not
equivalent to being of unsound mind. Besides, Article 799 of the New Civil Code states:
Art.799.To be of sound mind, it is not necessary that the testator be in full possession of all his
reasoning faculties, or that his mind be wholly unbroken, unimpaired, or unshattered by disease, injury or
other cause.
It shall be sufficient if the testator was able at the time of making the will to know the nature of the
estate to be disposed of, the proper objects of his bounty, and the character of the testamentary act.

In this case, apart from the testimony of Rosie pertaining to Paciencias forgetfulness, there is
no substantial evidence, medical or otherwise, that would show that Paciencia was of unsound
mind at the time of the execution of the Will. On the other hand, we find more worthy of
credence Dra. Limpins testimony as to the soundness of mind of Paciencia when the latter went
to Judge Limpins house and voluntarily executed the Will. The testimony of subscribing
witnesses to a Will concerning the testators mental condition is entitled to great weight where
they are truthful and intelligent.69More importantly, a testator is presumed to be of sound mind at
the time of the execution of the Will and the burden to prove otherwise lies on the oppositor.
Article 800 of the New Civil Code states:
Art.800.The law presumes that every person is of sound mind, in the absence of proof to the
contrary.
The burden of proof that the testator was not of sound mind at the time of making his dispositions is
on the person who opposes the probate of the will; but if the testator, one month, or less, before making
his will was publicly known to be insane, the person who maintains the validity of the will must prove
that the testator made it during a lucid interval.

Here, there was no showing that Paciencia was publicly known to be insane one month or less
before the making of the Will. Clearly, thus, the burden to prove that Paciencia was of unsound
mind lies upon the shoulders of petitioners. However and as earlier mentioned, no substantial
evidence was presented by them to prove the same, thereby warranting the CAs finding that
petitioners failed to discharge such burden.
Furthermore, we are convinced that Paciencia was aware of the nature of her estate to be
disposed of, the proper objects of her bounty and the character of the testamentary act. As aptly
pointed out by the CA:
A scrutiny of the Will discloses that [Paciencia] was aware of the nature of the document she
executed. She specially requested that the customs of her faith be observed upon her death. She was well
aware of how she acquired the properties from her parents and the properties she is bequeathing to
LORENZO, to his wife CORAZON and to his two (2) children. A third child was born after the execution
of the will and was not included therein as devisee.
70

Bare allegations of duress or influence

of fear or threats, undue and improper
influence and pressure, fraud and trickery cannot be used as basis to
deny the probate of a will.
An essential element of the validity of the Will is the willingness of the testator or testatrix to
execute the document that will distribute his/her earthly possessions upon his/her death.
Petitioners claim that Paciencia was forced to execute the Will under duress or influence of fear
or threats; that the execution of the Will had been procured by undue and improper pressure and
influence by Lorenzo or by some other persons for his benefit; and that assuming Paciencias
signature to be genuine, it was obtained through fraud or trickery. These are grounded on the

alleged conversation between Paciencia and Antonio on September 16, 1981 wherein the former
purportedly repudiated the Will and left it unsigned.
We are not persuaded.
We take into consideration the unrebutted fact that Paciencia loved and treated Lorenzo as her
own son and that love even extended to Lorenzos wife and children. This kind of relationship is
not unusual. It is in fact not unheard of in our culture for old maids or spinsters to care for and
raise their nephews and nieces and treat them as their own children. Such is a prevalent and
accepted cultural practice that has resulted in many family discords between those favored by the
testamentary disposition of a testator and those who stand to benefit in case of intestacy.
In this case, evidence shows the acknowledged fact that Paciencias relationship with Lorenzo
and his family is different from her relationship with petitioners. The very fact that she cared for
and raised Lorenzo and lived with him both here and abroad, even if the latter was already
married and already has children, highlights the special bond between them. This unquestioned
relationship between Paciencia and the devisees tends to support the authenticity of the said
document as against petitioners allegations of duress, influence of fear or threats, undue and
improper influence, pressure, fraud, and trickery which, aside from being factual in nature, are
not supported by concrete, substantial and credible evidence on record. It is worth stressing that
bare arguments, no matter how forceful, if not based on concrete and substantial evidence cannot
suffice to move the Court to uphold said allegations. 71 Furthermore, a purported will is not [to
be] denied legalization on dubious grounds. Otherwise, the very institution of testamentary
succession will be shaken to its foundation, for even if a will has been duly executed in fact,
whether x x x it will be probated would have to depend largely on the attitude of those interested
in [the estate of the deceased].72
Court should be convinced by the
evidence presented before it that the
Will was duly executed.
Petitioners dispute the authenticity of Paciencias Will on the ground that Section 11 of Rule
76 of the Rules of Court was not complied with. It provides:
RULE 76
Allowance or Disallowance of Will
Section11.Subscribing witnesses produced or accounted for where will contested.If the will is
contested, all the subscribing witnesses, and the notary in the case of wills executed under the Civil Code
of the Philippines, if present in the Philippines and not insane, must be produced and examined, and the
death, absence, or insanity of any of them must be satisfactorily shown to the court . If all or some of such
witnesses are present in the Philippines but outside the province where the will has been filed, their
deposition must be taken. If any or all of them testify against the due execution of the will, or do not
remember having attested to it, or are otherwise of doubtful credibility, the will may nevertheless, be
allowed if the court is satisfied from the testimony of other witnesses and from all the evidence presented
that the will was executed and attested in the manner required by law.
If a holographic will is contested, the same shall be allowed if at least three (3) witnesses who know
the handwriting of the testator explicitly declare that the will and the signature are in the handwriting of
the testator; in the absence of any competent witnesses, and if the court deem it necessary, expert
testimony may be resorted to. (Emphasis supplied.)

They insist that all subscribing witnesses and the notary public should have been presented in
court since all but one witness, Francisco, are still living.
We cannot agree with petitioners.

We note that the inability of Faustino and Judge Limpin to appear and testify before the court
was satisfactorily explained during the probate proceedings. As testified to by his son, Faustino
had a heart attack, was already bedridden and could no longer talk and express himself due to
brain damage. To prove this, said witness presented the corresponding medical certificate. For
her part, Dra. Limpin testified that her father, Judge Limpin, suffered a stroke in 1991 and had to
undergo brain surgery. At that time, Judge Limpin could no longer talk and could not even
remember his daughters name so that Dra. Limpin stated that given such condition, her father
could no longer testify. It is well to note that at that point, despite ample opportunity, petitioners
neither interposed any objections to the testimonies of said witnesses nor challenged the same on
cross examination. We thus hold that for all intents and purposes, Lorenzo was able to
satisfactorily account for the incapacity and failure of the said subscribing witness and of the
notary public to testify in court. Because of this the probate of Paciencias Will may be allowed
on the basis of Dra. Limpins testimony proving her sanity and the due execution of the Will, as
well as on the proof of her handwriting. It is an established rule that [a] testament may not be
disallowed just because the attesting witnesses declare against its due execution; neither does it
have to be necessarily allowed just because all the attesting witnesses declare in favor of its
legalization; what is decisive is that the court is convinced by evidence before it, not necessarily
from the attesting witnesses, although they must testify, that the will was or was not duly
executed in the manner required by law.73
Moreover, it bears stressing that [i]rrespective x x x of the posture of any of the parties as
regards the authenticity and due execution of the will x x x in question, it is the mandate of the
law that it is the evidence before the court and/or [evidence that] ought to be before it that is
controlling.74 The very existence of [the Will] is in itselfprima facie proof that the supposed
[testatrix] has willed that [her] estate be distributed in the manner therein provided, and it is
incumbent upon the state that, if legally tenable, such desire be given full effect independent of
the attitude of the parties affected thereby. 75 This, coupled with Lorenzos established
relationship with Paciencia, the evidence and the testimonies of disinterested witnesses, as
opposed to the total lack of evidence presented by petitioners apart from their self-serving
testimonies, constrain us to tilt the balance in favor of the authenticity of the Will and its
allowance for probate.
WHEREFORE, the petition is DENIED. The Decision dated June 15, 2006 and the
Resolution dated August 31, 2006 of the Court of Appeals in CA-G.R. CV No. 80979 are
AFFIRMED.
SO ORDERED.
Corona (C.J., Chairperson), Leonardo-De Castro, Bersamin and Villarama, Jr., JJ., concur.
Petition denied, judgment and resolution affirmed.

Adm. Matter No. 2026-CFI. December 19, 1981.

NENITA DE VERA SUROZA, complainant, vs. JUDGE REYNALDO P.

HONRADO of the Court of First Instance of Rizal, Pasig Branch 25 and
EVANGELINE S. YUIPCO, Deputy Clerk of Court, respondents.

Judges; Testate Succession; Misconduct defined.Administrative action may be taken

against a judge of the court of first instance for serious misconduct or inefficiency (Sec. 67,
Judiciary Law). Misconduct implies malice or a wrongful intent, not a mere error of

judgment. For serious misconduct to exist, there must be reliable evidence showing that
the judicial acts complained of were corrupt or inspired by an intention to violate the law, or
were in persistent disregard of well-known legal rules(In re Impeachment of Horrilleno, 43
Phil. 212, 214215).
Same; Same; Inefficiency defined.Inefficiency implies negligence, incompetence,
ignorance and carelessness. A judge would be inexcusably negligent if he failed to observe in
the performance of his duties that diligence, prudence and circumspection which the law
requires in the rendition of any public service (In re Climaco, Adm. Case No. 134-J, Jan. 21,
1974, 55 SCRA 107, 119).
Same; Same; Inasmuch as the will written in English says that it was in a language
understood and known to the testatrix, but also states that it was translated into the
Filipino language, the probate judge should have readily perceived that the testatrix is
illiterate and the will is void.In the opening paragraph of the will, it was stated that
English was a language understood and known to the testatrix. But in its concluding
paragraph, it was stated that the will was read to the testatrix and translated into Filipino
language. (p. 16, Record of testate case). That could only mean that the will was written in
a language not known to the illiterate testatrix and, therefore, it is void because of the
mandatory provision of article 804 of the Civil Code that every will must be executed in a
language or dialect known to the testator. Thus, a will written in English, which was not
known to the Igorot testator, is void and was disallowed (Acop vs. Piraso, 52 Phil. 660).
Same; Same; Trial judge should have observed the hasty preparation of the will which
repeatedly referred to the testatrix as testator."The hasty preparation of the will is shown
in the attestation clause and notarial acknowledgment where Marcelina Salvador Suroza is
repeatedly referred to as the testator instead of testatrix. Had respondent judge been
careful and observant, he could have noted not only the anomaly as to the language of the
will but also that there was something wrong in instituting the supposed granddaughter as
sole heiress and giving nothing at all to her supposed father who was still alive.
Same; Same; Judge should have noticed that the notary was not presented.
Furthermore, after the hearing conducted by respondent deputy clerk of court, respondent
judge could have noticed that the notary was not presented as a witness.
Same; Same; Probate judge should personally conduct hearing of will in spite of lack of
opposition. Judge fined the equivalent of 1, month s salary.In spite of the absence of an
opposition, respondent judge should have personally conducted the hearing on the probate
of the will so that he could have ascertained whether the will was validly executed. Under
the circumstances, we find his negligence and dereliction of duty to be inexcusable.

ADMINISTRATIVE MATTER in the Supreme Court.

The facts are stated in the opinion of the Court.

AQUINO, J.:
Should disciplinary action be taken against respondent judge for having admitted to
probate a will, which on its face is void because it is written in English, a language
not known to the illiterate testatrix, and which is probably aforged will because she
and the attesting witnesses did not appear before the notary as admitted by the
notary himself?
That question arises under the pleadings filed in the testate case and in the
certiorari case in the Court of Appeals which reveal the following tangled strands of
human relationship:
Mauro Suroza, a corporal in the 45th Infantry of the U.S. Army (Philippine
Scouts), Fort McKinley, married Marcelina Salvador in 1923 (p. 150, Spec. Proc. No.
7816). They were childless. They reared a boy named Agapito who used the surname
Suroza and who considered them as his parents as shown in his 1945 marriage
contract with Nenita de Vera (p. 15, Rollo of CA-G.R. No. 08654-R; p. 148, Rollo of
Testate Case showing that Agapito was 5 years old when Mauro married Marcelina
in 1923).
Mauro died in 1942. Marcelina, as a veterans widow, became a pensioner of the
Federal Government. That explains why on her death she had accumulated some
cash in two banks.
Agapito and Nenita begot a child named Lilia who became a medical technologist
and went abroad. Agapito also became a soldier. He was disabled and his wife
Nenita was appointed as his guardian in 1953 when he was declared an
incompetent in Special Proceeding No. 1807 of the Court of First Instance of Rizal,
Pasig Branch I. (p. 16, Rollo of CA-G.R. No. 08654-R).
In that connection, it should be noted that a woman named Arsenia de la Cruz
wanted also to be his guardian in another proceeding. Arsenia tried to prove that
Nenita was living separately from Agapito and that she (Nenita) admitted to
Marcelina that she was unfaithful to Agapito (pp. 6163, Record of testate case).
Judge Bienvenido A. Tan dismissed the second guardianship proceeding and
confirmed Nenitas appointment as guardian of Agapito (p. 16, Rollo of CA case).
Agapito has been staying in a veterans hospital in San Francisco or Palo Alto,
California (p. 87, Record).
On a date not indicated in the record, the spouses Antonio Sy and Hermogena
Talan begot a child named Marilyn Sy, who, when a few days old, was entrusted to
Arsenia de la Cruz (apparently a girl friend of Agapito) and who was later delivered
to Marcelina Salvador Suroza who brought her up as a supposed daughter of

Agapito and as her granddaughter (pp. 2326, Rollo of CA-G.R. No. SP-08654-R).
Marilyn used the surname Suroza. She stayed with Marcelina but was not legally
adopted by Agapito. She married Oscar Medrano and is residing at 7666 J.B. Roxas
Street, Makati, apparently a neighbor of Marina Paje, a resident of 7668 J.B. Roxas
Street.
Marcelina supposedly executed a notarial will in Manila on July 23, 1973, when she
was 73 years old. That will, which is in English, was thumbmarked by her. She was
illiterate.Her letters in English to the Veterans Administration were also
thumbmarked by her (pp. 3839, CA Rollo). In that will, Marcelina bequeathed all
her estate to her supposed granddaughter Marilyn.
Marcelina died on November 15, 1974 at the Veterans Hospital in Quezon City.
At the time of her death, she was a resident of 7374 San Maximo Street, Olimpia,
Makati, Rizal. She owned a 150-square meter lot and house in that place. She
acquired the lot in 1966 (p. 134, Record of testate case).
On January 13, 1975, Marina Paje, alleged to be a laundrywoman of Marcelina
(p. 97, CA Rollo) and the executrix in her will (the alternate executrix was Juanita
Macaraeg, mother of Oscar, Marilyns husband), filed with the Court of First
Instance of Rizal, Pasig Branch 25, a petition for the probate of Marcelinas alleged
will. The case was assigned to Judge Reynaldo P. Honrado.
As there was no opposition, Judge Honrado commissioned his deputy clerk of
court, Evangeline S. Yuipco, to hear the evidence. The transcripts of the
stenographic notes taken at the hearing before the deputy clerk of court are not in
the record.
In an order dated March 31, 1975, Judge Honrado appointed Marina as
administratrix. On the following day, April 1, Judge Honrado issued two orders
directing the Merchants Banking Corporation and the Bank of Americato allow
Marina to withdraw the sum of P10,000 from the savings accounts of Marcelina S.
Suroza and Marilyn Suroza and requiring Corazon Castro, the custodian of the
passbooks, to deliver them to Marina.
Upon motion of Marina, Judge Honrado issued another order dated April 11,
1975, instructing a deputy sheriff to eject the occupants of the testatrixs house,
among whom was Nenita V. Suroza, and to place Marina in possession thereof.
That order alerted Nenita to the existence of the testamentary proceeding for the
settlement of Marcelinas estate. She and the other occupants of the decedents
house filed on April 18 in the said proceeding a motion to set aside the order of April
11 ejecting them. They alleged that the decedents son Agapito was the sole heir of

the deceased, that he has a daughter named Lilia, that Nenita was Agapitos
guardian and that Marilyn was not Agapitos daughter nor the decedents
granddaughter (pp. 5268, Record of testate case). Later, they questioned the
probate courts jurisdiction to issue the ejectment order.
In spite of the fact that Judge Honrado was already apprised that persons, other
than Marilyn, were claiming Marcelinas estate, he issued on April 23 an order
probating her supposed will wherein Marilyn was the instituted heiress (pp. 7477,
Record).
On April 24, Nenita filed in the testate case an omnibus petition to set aside
proceedings, admit opposition with counterpetition for administration and
preliminary injunction. Nenita in that motion reiterated her allegation that
Marilyn was a stranger to Marcelina, that the will was not duly executed and
attested, that it was procured by means of undue influence employed by Marina and
Marilyn and that the thumbmarks of the testatrix were procured by fraud or trick.
Nenita further alleged that the institution of Marilyn as heir is void because of
the preterition of Agapito and that Marina was not qualified to act as executrix (pp.
8391, Record).
To that motion was attached an affidavit of Zenaida A. Peaojas, the housemaid
of Marcelina, who swore that the alleged will was falsified (p. 109, Record).
Not content with her motion to set aside the ejectment order (filed on April 18)
and her omnibus motion to set aside the proceedings (filed on April 24), Nenita filed
the next day, April 25, an opposition to the probate of the will and a counter-petition
for letters of administration. In that opposition, Nenita assailed the due execution of
the will and stated the names and addresses of Marcelinas intestate heirs, her
nieces and nephews (pp. 113121, Record). Nenita was not aware of the decree of
probate dated April 23, 1975.
To that opposition was attached an affidavit of Dominga Salvador Teodocio,
Marcelinas niece, who swore that Marcelina never executed a will (pp. 124125,
Record).
Marina in her answer to Nenitas motion to set aside the proceedings admitted
that Marilyn was not Marcelinas granddaughter but was the daughter of Agapito
and Arsenia de la Cruz and that Agapito was not Marcelinas son but merely
an anak-anakan who was not legally adopted (p. 143, Record).
Judge Honrado in his order of July 17, 1975 dismissed Nenitas counter-petition
for the issuance of letters of administration because of the nonappearance of her
counsel at the hearing. She moved for the reconsideration of that order.

In a motion dated December 5, 1975, for the consolidation of all pending

incidents, Nenita V. Suroza reiterated her contention that the alleged will is void
because Marcelina did not appear before the notary and because it is written in
English which is not known to her (pp. 208209, Record).
Judge Honrado in his order of June 8, 1976 denied the various incidents
raised by Nenita (p. 284, Record).
Instead of appealing from that order and the order probating the will, Nenita
filed a case to annul the probate proceedings (p. 332, Record). That case, Civil
Case No. 24276, Suroza vs. Paje and Honrado (p. 398, Record), was also assigned to
Judge Honrado. He dismissed it in his order of February 16, 1977 (pp. 398402,
Record).
Judge Honrado in his order dated December 22, 1977, after noting that the
executrix had delivered the estate to Marilyn, and that the estate tax had been paid,
closed the testamentary proceeding.
About ten months later, in a verified complaint dated October 12, 1978, filed in
this Court, Nenita charged Judge Honrado with having probated the fraudulent will
of Marcelina. The complainant reiterated her contention that the testatrix was
illiterate as shown by the fact that she affixed her thumbmark to the will and that
she did not know English, the language in which the will was written. (In the decree
of probate Judge Honrado did not make any finding that the will was written in a
language known to the testatrix.)
Nenita further alleged that Judge Honrado, in spite of his knowledge that the
testatrix had a son named Agapito (the testatrixs supposed sole compulsory and
legal heir), who was preterited in the will, did not take into account the
consequences of such a preterition.
Nenita disclosed that she talked several times with Judge Honrado and informed
him that the testatrix did not know the executrix Marina Paje, that the beneficiarys
real name is Marilyn Sy and that she was not the next of kin of the testatrix.
Nenita denounced Judge Honrado for having acted corruptly in allowing Marina
and her cohorts to withdraw from various banks the deposits of Marcelina.
She also denounced Evangeline S. Yuipco, the deputy clerk of court, for not giving
her access to the record of the probate case by alleging that it was useless for Nenita
to oppose the probate since Judge Honrado would not change his decision. Nenita
also said that Evangeline insinuated that if she (Nenita) had ten thousand pesos,
the case might be decided in her favor. Evangeline allegedly advised Nenita to desist
from claiming the properties of the testatrix because she (Nenita) had no rights

thereto and, should she persist, she might lose her pension from the Federal
Government.
Judge Honrado in his brief comment did not deal specifically with the allegations
of the complaint. He merely pointed to the fact that Nenita did not appeal from the
decree of probate and that in a motion dated July 6, 1976 she asked for a thirtyday
period within which to vacate the house of the testatrix.
Evangeline S. Yuipco in her affidavit said that she never talked with Nenita and
that the latter did not mention Evangeline in her letter dated September 11, 1978 to
President Marcos.
Evangeline branded as a lie Nenitas imputation that she (Evangeline) prevented
Nenita from having access to the record of the testamentary proceeding. Evangeline
was not the custodian of the record. Evangeline strongly, vehemently and flatly
denied Nenitas charge that she (Evangeline) said that the sum of ten thousand
pesos was needed in order that Nenita could get a favorable decision. Evangeline
also denied that she has any knowledge of Nenitas pension from the Federal
Government.
The 1978 complaint against Judge Honrado was brought to the attention of this
Court in the Court Administrators memorandum of September 25, 1980. The case
was referred to Justice Juan A. Sison of the Court of Appeals for investigation,
report and recommendation. He submitted a report dated October 7, 1981.
On December 14, 1978, Nenita filed in the Court of Appeals against Judge
Honrado a petition for certiorari and prohibition wherein she prayed that the will,
the decree of probate and all the proceedings in the probate case be declared void.
Attached to the petition was the affidavit of Domingo P. Aquino, who notarized
the will. He swore that the testatrix and the three attesting witnesses did not appear
before him and that he notarized the will just to accommodate a brotherlawyer on
the condition that said lawyer would bring to the notary the testatrix and the
witnesses but the lawyer never complied with his commitment.
The Court of Appeals dismissed the petition because Nenitas remedy was an
appeal and her failure to do so did not entitle her to resort to the special civil action
of certiorari (Suroza vs. Honrado, CA-G.R. No. SP-08654, May 24, 1981).
Relying on that decision, Judge Honrado filed on November 17, 1981 a motion to
dismiss the administrative case for having allegedly become moot and academic.
We hold that disciplinary action should be taken against respondent judge for his
improper disposition of the testate case which might have resulted in a miscarriage

of justice because the decedents legal heirs and not the instituted heiress in the
void will should have inherited the decedents estate.
A judge may be criminally liable or knowingly rendering an unjust judgment or
interlocutory order or rendering a manifestly unjust judgment or interlocutory order
by reason of inexcusable negligence or ignorance (Arts. 204 to 206, Revised Penal
Code).
Administrative action may be taken against a judge of the court of first instance for
serious misconduct or inefficiency (Sec. 67, Judiciary Law). Misconduct implies
malice or a wrongful intent, not a mere error of judgment. For serious misconduct
to exist, there must be reliable evidence showing that the judicial acts complained of
were corrupt or inspired by an intention to violate the law, or were in persistent
disregard of well-known legal rules (In reImpeachment of Horrilleno, 43 Phil. 212,
214215).
Inefficiency implies negligence, incompetence, ignorance and carelessness. A
judge would be inexcusably negligent if he failed to observe in the performance of
his duties that diligence, prudence and circumspection which the law requires in the
rendition of any public service (In reClimaco, Adm. Case No. 134-J, Jan. 21,
1974, 55 SCRA 107, 119).
In this case, respondent judge, on perusing the will and noting that it was
written in English and was thumbmarked by an obviously illiterate testatrix, could
have readily perceived that the will is void.
In the opening paragraph of the will, it was stated that English was a language
understood and known to the testatrix. But in its concluding paragraph, it was
stated that the will was read to the testatrix and translated into Filipino
language. (p. 16, Record of testate case). That could only mean that the will was
written in a language not known to the illiterate testatrix and, therefore, it is void
because of the mandatory provision of article 804 of the Civil Code that every will
must be executed in a language or dialect known to the testator. Thus, a will written
in English, which was not known to the Igorot testator, is void and was disallowed
(Acop vs. Piraso, 52 Phil. 660).
The hasty preparation of the will is shown in the attestation clause and notarial
acknowledgment where Marcelina Salvador Suroza is repeatedly referred to as the
testator instead of testatrix.
Had respondent judge been careful and observant, he could have noted not only
the anomaly as to the language of the will but also that there was something wrong

in instituting the supposed granddaughter as sole heiress and giving nothing at all
to her supposed father who was still alive.
Furthermore, after the hearing conducted by respondent deputy clerk of court,
respondent judge could have noticed that the notary was not presented as a witness.
In spite of the absence of an opposition, respondent judge should have personally
conducted the hearing on the probate of the will so that he could have ascertained
whether the will was validly executed.
Under the circumstances, we find his negligence and dereliction of duty to be
inexcusable.
WHEREFORE, for inefficiency in handling the testate case of Marcelina S.
Suroza, a fine equivalent to his salary for one month is imposed on respondent judge
(his compulsory retirement falls on December 25, 1981).
The case against respondent Yuipco has become moot and academic because she
is no longer employed in the judiciary. Since September 1, 1980 she has been
assistant city fiscal of Surigao City. She is beyond this Courts disciplinary
jurisdiction (Peralta vs. Firme, Adm. Matter No. 2044-CFI, November 21,1980,101
SCRA 225).
SO ORDERED.
Barredo (Chairman), De Castro, Ericta and Escolin, JJ., concur.
Concepcion, Jr., J., on leave.
Abad Santos, J., took no part.
Respondent fined equivalent to his salary for one (1) month.
o0o

[No. 42258. January 15, 1936]

In

re Will

of

the

deceased

Leoncia

Tolentino.

VICTORIO

PAYAD,

petitioner

and

appellant, vs. AQUILINA TOLENTINO, oppositor and appellant.

1. 1.WILLS; ATTESTATION CLAUSE; TESTATOR'S SIGNATURE.It was not necessary that the
attestation clause in question should state that the testatrix requested Attorney A to sign her name
inasmuch as the testatrix signed the will in question in accordance with law.
1. 2.ID. ; ID. ; TESTATOR'S MARK."A statute requiring a will to be 'signed' is satisfied if the signature
is made by the testator's mark." (Quoted by this court from 28 R. C. L., p. 117; De Gala vs. Gonzales
and Ona, 53 Phil., 104, 108.)

APPEAL from an order of the Court of First Instance of Manila. Rovira, J.

The facts are stated in the opinion of the court.
Vicente Foz, Marciano Almario and Leonardo Abola for petitioner-appellant.
Leodegario Azarraga for oppositor-appellant.
GODDARD, J.:
Both parties in this case appeal from an order of the trial court denying the probate of the alleged
will of Leoncia Tolentino, deceased. That court found that the will in question was executed by the
deceased on the date appearing thereon, September 1, 1933, one day before the death of the testatrix,
contrary to the contention of the oppositor that it was executed after her death. The court, however,
denied probate on the ground that the attestation clause was not in conformity with the
requirements of law in that it is not stated therein that the testatrix caused Attorney Almario to
write her name at her express direction.
The appeal of the oppositor-appellant is based upon the alleged failure of the trial court in not
finding that the will in question was executed after the death of Leoncia Tolentino, or that she was
mentally and physically incapable of executing said will one day before her death. After a careful
examination of the evidence on these points we find no reason for setting aside the conclusion of the
trial court as set forth above. The assignments of the oppositor-appellant are therefore overruled.
As to the contention of the petitioner-appellant, as stated above, the trial court denied probate of
the will on the sole ground that the attestation clause does not state that the testatrix requested
Attorney Almario to write her name. The last paragraph of the questioned will reads in part as
follows:

"En prueba de todo lo cual, firmo el presente testamento con mi marca digital, porque no puedo estampar mi
firma a causa de mi debilidad, rogando al abogado M. Almario que ponga mi nombre en el sitio donde he de
estampar mi marca digital * * *."

The evidence of record establishes the fact that Leoncia Tolentino, assisted by Attorney Almario,
placed her thumb mark on each and every page of the questioned will and that said attorney merely
wrote her name to indicate the place where she placed said thumb mark. In other words Attorney
Almario did not sign for the testatrix. She signed by placing her thumb mark on each and every page
thereof. "A statute requiring a will to be 'signed' is satisfied if the signature is made by the testator's
mark." (Quoted by this court from 28 R. C. L., p. 117; De Gala vs. Gonzales and Ona, 53 Phil., 104,
108.) It is clear, therefore, that it was not necessary that the attestation clause in question should
state that the testatrix requested Attorney Almario to sign her name inasmuch as the testarix signed
will in question in accordance with law.
The appealed order of the trial court is reversed and the questioned will of Leoncia Tolentino,
deceased, is hereby admitted to probate with the costs of .this appeal against the oppositor-appellant.
Malcolm, Villa-Real, Imperial, and Butte, JJ., concur.
Order reversed; will admitted to probate.
______________
[No. L-4067. November 29, 1951]
In the Matter of the Will of ANTERO MERCADO, deceased. ROSARIO GARCIA, petitioner, vs. JULJANA
LACUESTA, ET AL., respondents.
1. 1.WILLS; ATTESTATION CLAUSE; SIGNING BY ANOTHER OP TESTATOR'S NAMB AT LATTER'S
DIRECTION.When the testator expressly caused another to sign the former's name, this fact must be recited in
the attestation clause. Otherwise, the will is fatally defective.
1. 2.ID.; SIGNATURE OF TESTATOR; CROSS.Where the cross appearing on a will is not the usual signature of the
testator or even one of the ways by which he signed his name, that cross cannot be considered a valid signature.

PETITION for review by eertiorari of a decision of the Court of Appeals.

The facts are stated in the opinion of the Court.
Elviro L. Peralta and Hermenegildo A. Prieto for petitioner.
Faustino B. Tobia, Juan I. Ines and Federico Tacason for respondents.

PARAS, C. J.:
This is an appeal from a decision of the Court of Appeals disallowing the will of Antero Mercado dated January
3, 1943. The will is written in the Ilocano dialect and contains the following attestation clause:
"We, the undersigned, by these presents do declare that the foregoing testament of Antero Mercado was signed by himself and
also by us below his name and of this attestation clause and that of the left margin of the three pages thereof. Page three the
continuation of this attestation clause; this will is written in Ilocano dialect which is spoken and understood by the testator,
and it bears the corresponding number in letter which compose of three pages and all of them were signed in the presence of
the testator and witnesses, and the witnesses in the presence of the testator and all and each and every one of us witnesses.
"In testimony, whereof, we sign this testament, this the third day of January, one thousand nine hundred forty three, (1943)
A.D.

(Sgd.) "NUMERIANO EVANGELISTA

(Sgd.) ROSENDO CORTES

(Sgd.) "BIBIANA ILLEGIBLE"

The will appears to have been signed by Atty. Florentino Javier who wrote the name of Antero Mercado, followed
bclow by "A ruego del testador" and the name of Florentino Javier. Antero Mercado is alleged tc have written a
cross immediately after his name. The Court of Appeals, reversing the judgment of the Court of First Instance of
Ilocos Norte, ruled that the attestation clause failed (1) to certify that the will was signed on all the left margins
of the three pages and at the end of the will by Atty. Florentino Javier at the express request of the testator in
the presence of the testator and each and every one of the witnesses; (2) to certify that after the signing of the
name of the testator by Atty. Javier at the former's request s'aid testator has written a cross at the end of his
name and on the left margin of the three pages of which the will consists and at the end thereof; (3) to certify
that the three witnesses signed the will in all the pages thereon in the presence of the testator and of each other.
In our opinion, the attestation clause is fatally defective for failing to state that Antero Mercado caused Atty.
Florentino Javier to write the testator's name under his express direction, as required by section 618 of the Code
of Civil Procedure. The herein petitioner (who is appealing by way of certiorari from the decision of the Court of
Appeals) argues, however, that there is no need for such recital because the cross written by the testator after
his name is a sufficient signature and the signature of Atty. Florentino Javier is a surplusage. Petitioner's
theory is that the cross is as much a signature as a thumbmark, the latter having been held sufficient by this
Court

in

the

cases

of De

Galavs. Gonzales

and

Ona, 53

Phil.,

104; Dolar vs. Diancin, 55

Phil.,

479; Payad vs. Tolentino, 62 Phil., 848; Neyra vs.Neyra, 76 Phil., 296 and Lopez vs. Liboro, 81 Phil., 429.
It is not here pretended that the cross appearing on the will is the usual signature of Antero Mercado or
even one of the ways by which he signed his name. After mature reflection, we are not prepared to liken the
mere sign of a cross to a thumbmark, and the reason is obvious. The cross cannot and does not have the
trustworthiness of a thumbmark.

What has been said makes it unnecessary for us to determine whether there is a sufficient recital in the
attestation clause as to the signing of the will by the testator in the presence of the witnesses, and by the latter
in the presence of the testator and of each other.
Wherefore, the appealed decision is hereby affirmed, with costs against the petitioner. So ordered.
Feria, Pablo, Bengzon, Padilla, Reyes, Jugo, andBautista Angelo, JJ., concur.
Judgment affirmed.
_______________

No. 6285. February 15, 1912.]

PEDRO BARUT, petitioner and appellant, vs. FAUSTINO CABACUNGAN ET AL.,
opponents and appellees.
WlLLS; SlGNING BY THIRD PERSON AT TESTATOR'S REQUEST.With respect to
the validity of a will, it is not important that the person who writes the name of the testator
should also sign his own; the important thing is that it should clearly appear that the name
of the testator was signed at his express direction, in the presence of three witnesses, and in
the presence of the testator and of each other.

APPEAL from a judgment of the Court of First Instance of Ilocos Sur. Chanco, J.
The facts are stated in the opinion of the court.
A. M. Jimenez, for appellant.
Ramon Querubin, for appellees.
MORELAND, J.:
This case is closely connected with the case of Faustino Cabacungan vs. Pedro
Barut and another, No. 6284, just decided by this court, wherein there was an
application f or the probate of an alleged last will and testament of the same person
the probate of whose will is involved in this suit.
1

This appeal arises out of an application on the part of Pedro Barut to probate the
last will and testament of Maria Salomon, deceased. It is alleged in the petition for
probate that Maria Salomon died on the 7th day of November, 1908, in the pueblo of

Sinait, Ilocos Sur, leaving a last will and testament bearing date March 2, 1907.
Severo Agayan, Timotea Inoselda, Catalino Ragasa, and A. M. Jimenez are alleged
to have been witnesses to the execution thereof. By the terms of said will Pedro
Barut received the larger part of decedent's property.
The original will appears on page 3 of the record and is in the Ilocano dialect. Its
translation into Spanish appears at page 11. After disposing of her property the
testatrix revoked all former wills by her made. She also stated in said will that
being unable to read or write, the same had been read to her by Ciriaco Concepcion
and Timotea Inoselda and that she had instructed Severo Agayan to sign her name
to it as testatrix.
The probate of the will was contested and opposed by a number of the relatives of
the deceased on various grounds, among them that a later will had been executed by
the deceased. The will referred to as being a later will is the one involved in case No.
6284 already referred to. Proceedings for the probate of this later will were pending
at the time. The evidence of the proponents and of the opponents was taken by the
court in both cases for the purpose of considering them together.
In the case before us the learned probate court found that the will was not
entitled to probate upon the sole ground that the handwriting of the person who it
is alleged signed the name of the testatrix to the will for and on her behalf looked
more like the handwriting of one of the other witnesses to the will than that of the
person whose handwriting it was alleged to be. We do not believe that the mere
dissimilarity in writing thus mentioned by the court is sufficient to overcome the
uncontradicted testimony of all the witnesses to the will that the .signature of the
testatrix was written by Severo Agayan at her request and in her presence and in
the presence of all of the witnesses to the will. It is immaterial who writes the name
of the testatrix provided it is written at her request and in her presence and in the
presence of all the witnesses to the execution of the will.
The court seems, by inference at least, to have had in mind that under the law
relating to the execution of a will it is necessary that the person who signs the name
of the testatrix must afterwards sign his own name; and that, in view of the fact
that, in the case at bar, the name signed below that of the testatrix as the person
who signed her name, being, from its appearance, not the same handwriting as that
constituting the name of the testatrix, the will is accordingly invalid, such fact

indicating that the person who signed the name of the testatrix failed to sign his
own. We do not believe that this contention can be sustained. Section 618 of the
Code of Civil Procedure reads as follows:
"No will, except as provided in the preceding section, shall be valid to pass any estate, real
or personal, nor charge or affect the same, unless it be in writing and signed by the testator,
or by the testator's name written by some other person in his presence, and by his express
direction, and attested and subscribed by three or more credible witnesses in the presence
of the testator and of each other. * * *"

This is the important part of the section under the terms of which the court holds
that the person who signs the name of the testator for him must also sign his own
name. The remainder of the section reads:
"The attestation shall state the fact that the testator signed the will, or caused it to be
signed by some other person, at his express direction, in the presence of three witnesses,
and that they attested and subscribed it in his presence and in the presence of each other.
But the absence of such form of attestation shall not render the will invalid if it is proven
that the will was in fact signed and attested as in this section provided."

From these provisions it is entirely clear that, with respect to the validity of the
will, it is unimportant whether the person who writes the name of the testatrix
signs his own or not. The important thing is that it clearly appears that the name of
the testatrix was signed at her express direction in the presence of three witnesses
and that they attested and subscribed it in her presence and in the presence of each
other. That is all the statute requires. It may be wise as a practical matter that the
one who signs the testator's name signs also his own; but that is not essential to
the validity of the will. Whether one person or another signed the name of the
testatrix in this case is absolutely unimportant so far as the validity of her will is
concerned. The plain wording of the statute shows that the requirement laid down
by the trial court, if it did lay it down, is absolutely unnecessary under the law; and
the reasons underlying the provisions of the statute relating to the execution of wills
do not in any sense require such a provision. From the standpoint of language it is
an impossibility to draw from the words of the law the inference that the person who
signs the name of the testator must sign his own name also. The law requires only
three witnesses to a will, not four.

Nor is such requirement f ound in any other branch of the law. The name of a
person who is unable to write may be signed by another by express direction to any
instrument known to the law. There is no necessity whatever, so far as the validity
of the instrument is concerned, for the person who writes the name of the principal
in the document to sign his own name also. As a matter of policy it may be wise that
he do so inasmuch as it would give such intimation as would enable a person
proving the document to demonstrate more readily the execution by the principal.
But as a matter of essential validity of the document, it is unnecessary. The main
thing to be established in the execution of the will is the signature of the testator. If
that signature is proved, whether it be written by himself or by another at his
request, it is none the less valid, and the fact of such signature can be proved as
perfectly and as completely when the person signing for the principal omits to sign
his own name as it can when he actually signs. To hold a will invalid for the lack of
the signature of the person signing- the name of the principal is, in the particular
case, a complete abrogation of the law of wills, as it rejects and destroys a will which
the statute expressly declares is valid.
There have been cited three cases which it is alleged are in opposition to the
doctrine which we have herein laid down. They are Ex parte Santiago (4 Phil. Rep.,
692), Ex parte Arcenas (4 Phil. Rep., 700), and Guison vs.Concepcion (5 Phil. Rep.,
551). Not one of these cases is in point.
The headnote in the case last above stated gives an indication of what all of the
cases are and the question involved in each one of them. It says:
"The testatrix was not able to sign her name to the will, and she requested another person
to sign it f or her. Instead of writing her name he wrote his own upon the will. Held, That
the will was not duly executed."

All of the above cases are precisely of this character. Every one of them was a case in
which the person who signed the will f or the testator wrote his own name to the
will instead of 'writing that of the testator, so that the testator's name nowhere
appeared attached to the will as the one who executed it. The case of Ex
parte Arcenas contains the following paragraph:
"Where a testator does not know how, or is unable for any reason, to sign the will himself, it
shall be signed in the following manner: 'John Doe, by the testator, Richard Roe;' or in this

form: 'By the testator. John Doe, Richard Roe.' All this must be written by the witness
signing at the request of the testator."

The only question for decision in that case, as we have before stated, was presented
by the fact that the person who was authorized to sign the name of the testator to
the will actually failed to sign such name but instead signedhis own thereto. The
decision in that case related only to that question.
Aside from the presentation of an alleged subsequent will the contestants in this
case have set f orth no reason whatever why the will involved in the present
litigation should not be probated. The due and legal execution of the will by the
testatrix is clearly established by the proofs in this case. Upon the facts, therefore,
the will must be probated. As to the defense of a subsequent will, that is resolved in
case No. 6284 of which we have already spoken. We there held that said later will
was not the will of the deceased.
The judgment of the probate court must be and is hereby reversed and that court
is directed to enter an order in the usual form probating the will involved in this
litigation and to proceed with such probate in accordance with law.
Arellano, C. J., Mapa and Carson, JJ., concur.
TORRES, J., concurring:
The undersigned agrees and admits that section 618 of the Code of Civil Procedure does
not expressly require that, when the testator or testatrix is unable or does not know how to
sign, the person who, in the presence and under the express direction of either of them,
writes in the name of the said testator or testatrix must also sign his own name thereto, it
being sufficient for the validity of the will that the said person so requested to sign for the
testator or testatrix write the name of either in his own handwriting.
Since this court began to decide cases with regard to the form, conditions and validity of
wills executed in accordance with the provisions of the Code of Civil Procedure, never has
the specific point just above mentioned been brought into question. Now for the first time it
is affirmed in the majority opinion, written by the learned and distinguished Hon. Justice
Moreland, that, not being required by the said code, the signature of the name of the person
who, at the request of the testator or testatrix, writes the name of either of the latter to the
will executed, is not necessary.

Various and considerable in number have been the decisions rendered by this court in
which, as will be seen further on, upon applying the said section 618 of the Code of Civil
Procedure and requiring its observance in cases where the testator or testatrix is unable or
does not know how to sign his or her name, expressly prescribe the practical method of
complying with the provisions of the law on the subject. Among these decisions several were
written by various justices of this court, some of whom are no longer on this bench, as they
have ceased to hold such position.
Paragraph 2 of the syllabus of case No. 2002, Ex parteDelfin Santiago, concerning the
probate of a will, reads as f ollows:
1

"Wills, authentication of.Where a will is not signed by a testator but by some other person in his
presence and by his direction, such other person should affix the name of the testator thereto, and it
is not sufficient that he sign his own name for and instead of the name of the testator."

Paragraph 1 of the syllabus of case No. 1708, Ex parteArcenas, in the matter of the probate
of a will, states:
1

1. "1.Wills, requisites of; Civil Code, article repealed.Article 695 of the Civil Code was
repealed by section 618 of the Code of Civil Procedure; consequently where a testator is
unable to sign his name, the person signing at his request must write at the bottom of the
will the full name of the testator in the latter's presence, and by his express direction, and
then sign his own name in full."

In the syllabus of decision No. 2586, Tomas Guison vs.Maria Concepcin, the following
statements appear:
2

"Wills; inability to sign; signature by another.The testatrix was not able to sign her name to the
will, and she requested another person to sign it for her. Held, That the will was not duly executed.
(Following Ex parte Arcenas et al., No. 1708, August 24, 1905; Ex parte Santiago, No. 2002, August
18, 1905.)"

The following syllabus precedes decision No. 3907:

"Execution of wills.Where it appears in a will that the testator has stated that by reason of his
inability to sign his name he requested one of the three witnesses present to do so, and that as a
matter of fact, the said witness wrote the name and surname of the testator who, stating that the
instrument executed by him contained his last will, put the sign of the cross between his said name
and surname, all of which details are set f orth in a note which the witnesses forthwith subscribed in
the presence of the testator and of each other, said will may be probated.

"When the essential requisites of section 618 of the Code of Civil Procedure for the execution and
validity of a will have been complied with, the f act that the witness who was requested to sign the
name of the testator, omitted to state the words 'by request of the testator,' when writing with his
own hand the name and surname of the said testator, and the fact that said witness subscribed his
name together with the other witnesses and not below the name of the testator, does not constitute a
defect nor invalidate the said will."

The following statement appears in the syllabus of case No. 4132, in the matter of the will
of Maria Siason:
1

"The recital of the name of the testator as written below the will at his request serves as a signature
by a third person."

Moreover, among the grounds given as a basis for this same decision, the following appears:
"In sustaining this form of signature, this court does not intend to qualify the decisions in Ex
parte Santiago (4 Phil. Rep., 692), Ex parte Arcenas, above quoted, or in Abaya vs. Zalamero. In the
Arcenas case the court pointed out the correct formula for a signature which ought to be followed, but
did not mean to exclude any other form substantially equivalent."

In the syllabus of decision No. 4454, Ex parte Ondevilla et al., the following appears:
2

"The testatrix was unable to sign her will with her own hand and requested another person to sign
for her in her presence. This the latter did, first writing the name of the testatrix and signing his
own name below: Held, That the signature of the testatrix so affixed is sufficient and a will thus
executed is admissible to probate. (Ex parte Arcenas, 4 Phil. Rep., 700.)"

The syllabus of decision No. 5149 sets forth that:

3

"The legality of a will is not affected by the insertion, supposed to have been made subsequently, of
another name before that of the testator when such name may be treated as nonexistent without
affecting its validity."

Among the conclusions contained in this last decision the following is found:
"Although the said words 'For Simplicia de los Santos' be considered as inserted subsequently, which
we neither affirm nor deny, because a specific determination either way is unnecessary, in our
opinion the signature for the testatrix placed outside of the body of the will contains the name of the
testatrix as if she signed the will, and also the signature of the witness who, at her request, wrote
the name of the testatrix and signed for her, affirming the truth of this fact, attested by the other
witnesses then present. And this fully complies with the provisions of section 618 of the Act."

It is true that in none of the decisions above quoted was the rule established that the person
who, at the request of the testator or testatrix, signed the latter's or the former's name and
surname to the will must affix his own signature; but it is no less true that, in prescribing
the method in which the provisions of the said section 618 were to be complied with, it was
stated that, in order that a will so executed might be admitted to probate, it was an
indispensable requisite that the person requested to sign in place of the testator or
testatrix, should write the latter's or the f ormer's name and surname at the f oot of the will
in the presence and under the direction of either, as the case might be, and should
afterwards sign the instrument with his own name and surname.
The statement that the person who writes the name and surname of the testator or
testatrix at the f oot of the will should likewise affix his own signature thereto, name and
surname, though it be considered to be neither a rule nor a requisite necessary to follow for
the admission of the will to probate, yet it is unquestionable that, in inserting this last
above-mentioned detail in the aforesaid decisions, it was deemed to be a complement and
integral part of the required conditions for the fulfillment of the provisions of the law.
It is indisputable that the latter does not require the said subscription and signature of the
person requested to affix to the will the name of the testator or testatrix who is not able to
sign; but by stating in the decisions hereinabove quoted that the name and surname of the
said person should be affixed by him, no act prohibited by law was recommended or
suggested, nor may such a detail be understood to be contrary or opposed to the plain
provisions thereof.
In the preceding decision itself, it is recognized to be convenient and even prudent to
require that the person requested to write the name of the testator or testatrix in the will
also sign the instrument with his own name and surname. This statement induces us to
believe that, in behalf of the inhabitants of this country and for the sake of an upright
administration of justice, it should be maintained that such a signature must appear in the
will, since no harm could accrue to anyone thereby and, on the contrary, it would serve as a
guarantee of the certainty of the act performed and also might eliminate some possible
cause of controversy between the interested parties.
The undersigned feels it his duty to admit that, though convinced of the complete repeal
of article 695 of the Civil Code and, while he concedes that, in the examination and
qualification of a will for the purpose of its probate, one has but to abide by the provisions of
the said section 618 of the Code of Civil Procedure, the sole law applicable in the matter,
yet, perhaps imbued with and strongly impelled by a traditional conception of the laws
which he has known since his youth, relative to the form of execution of testaments, he
believed it to be a very natural and common sense requisite that the signature, with his

own name and surname, of the person requested to write in the will the name and surname
of the testator or testatrix should form a part of the provisions of the aforementioned
section 618.
He undoubtedly thought, perhaps mistakenly, that such a requisite of the signature of
the person before referred toa requisite deemed to be convenient and prudent in the
majority opinionformed a part of the provisions of the law, since the latter contains
nothing that prohibits it. The aforementioned different decisions were drawn up in the form
in which they appear, and signed without dissent by all the justices of the court on various
dates, None of them hesitated to sign the decisions, notwithstanding that it was expressly
held therein that the person above mentioned should, besides writing in the will the name
and surname of the testator or testatrix, also sign the said instrument with his own name
and surname.
Without being understood to criticise the provision contained in the said section 618 of
the Code of Civil Procedure, it will not be superfluous to mention that the system adopted in
this section is the same as was in vogue under the f ormer laws that governed in these
Islands, with respect to witnesses who were not able or did not know how to sign their
testimony given in criminal or civil cases, in which event any person at all might write the
name and surname of the witness who was unable or did not know how to sign, at the foot
of his deposition, where a cross was then drawn, and, this done, it was considered that the
instrument had been signed by the witness, though it is true that all these formalities were
performed before the judge and the clerk or secretary of the court, which thereupon certified
that such procedure was had in accordance with the law.
The difference is that in the will, pursuant to section 618 of the Code of Civil Procedure,
the person who writes the name and surname of the testator or testatrix does so by the
order and express direction of the one or of the other, and this f act must be recorded in the
will; but in the matter of the signature of a deposition, the witness, who could not or did not
know how to sign, did not need to designate anyone to write the deponent's name and
surname, and in practice the witness merely made a cross beside his name and surname,
written by whomever it be.
With regard to the execution of wills in accordance with the provisions of previous
statutes, among them those ofthe Civil Code, the person or witness requested by the
testator or testatrix who was not able or did not know how to sign, authenticated the will by
signing it with his own name and surname, preceded by the words "at the request .of the
testator or testatrix." Paragraph 2 of article 695 of the Civil Code contains the following
provisions bearing on the subject:

"Should the testator declare that he does not know how, or is not able to sign, one of the attesting
witnesses or another person shall do so for him at his request, the notary certifying thereto. This
shall also be done if any one of the witnesses can not sign."

So that, prior to the enforcement in this country in 1901 of the Code of Civil Procedure, the
procedure prescribed by the old laws with respect to the signing of a will by a testator or
testatrix who did not know how or who could not sign, consisted in that the person
appointed and requested by the testator or testatrix to sign in his or her stead, such fact
being recorded in the will, merely affixed at the bottom of the will and after the words "at
the request of the testator," his own name, surname and paraph.
It is not at all strange that the attorneys of this country, imbued with and inspired by
these legal provisions, which, it may be said, are traditional to them in the ideas they have
formed of the existing laws in the matter of procedure in compliance therewith as regards
the execution and signing of a will, should have believed that, after the name and surname
of the testator or testatrix had been written at the foot of the will, the person who signed
the instrument in the manner mentioned should likewise sign the same with his own name
and surname.
If in various decisions it has-been indicated that the person who, under the express
direction of the testator or testatrix, wrote the latter's or the former's name and surname,
should also sign the will with his own name and surname, and since this suggestion is not
opposed or contrary to the law, the undersigned is of opinion that it ought not to be modified
or amended, but that, on the contrary, it should be maintained as a requisite established by
the jurisprudence of this court, inasmuch as such a requisite is not contrary to law, to public
order, or to good custom, is in consonance with a tradition of this country, does not prejudice
the testator nor those interested in an inheritance, and, on the contrary, constitutes another
guarantee of the truth and authenticity of the letters with which the name and surname of
the testator or testatrix are written, in accordance with his or her desire as expressed in the
will.
Even though the requisites ref erred to were not recognized in jurisprudence and were
unsupported by any legal doctrine whatever, yet, since it is in harmony with the juridical
usages and customs observed in this country, it ought, in the humble opinion of the writer,
to be maintained for the benefit of the inhabitants of the Islands and f or the sake of a good
administration of justice, because it is not a question of a dangerous innovation or of one
prejudicial to the public good, but a matter of the observance of a convenient, if not a
necessary detail, introduced by the jurisprudence of the courts and which in the present
case has filled a vacancy left by the positive written law.

The foregoing considerations, which perhaps have not the support of better premises,
but, in the opinion of the undersigned, are conducive to the realization of the purposes of
justice, have impelled him to believe that the proposition should be enforced that the
witness requested or invited by the testator or testatrix to write his or her name to the will,
should also subscribe the instrument by signing thereto his own name and surname; and
therefore, with the proper finding in this sense, and a reversal of the judgment appealed
from, that the court below should be ordered to proceed with the probate of the will of the
decedent, Maria Salomon, in accordance with the law.
Judgment reversed and probate ordered.

No. L-18979. June 30, 1964.

IN THE MATTER OF THE TESTATE ESTATE OF THE LATE Jo SEFA
VILLACORTE. CELSO ICASIANO, petitioner-appellee, vs. NATIVIDAD ICASIANO
and ENRIQUE ICASIANO, oppositors-appellants.

Wills; Probate; Policy of Court against undue curtailment of testamentary privileges.

The precedents cited in the case at bar exemplify the Court's policy to require satisfaction of
the legal requirements in the probate of a will in order to guard against fraud and bad faith
but without undue or unnecessary curtailment of the testamentary privilege.
Same; Same; Handwriting expert must have sufficient standards of comparison to prove
forgery of testatrix's signature.The opinion of a handwriting expert trying to prove forgery
of the testatrix's signature fails to convince the court, not only because it is directly
contradicted by another expert but principally because of the paucity of the standards used
by him (only three other signatures), considering the advanced age of the testatrix, the
evident variability of her signatures, and the effect of writing fatigue.
Same; Same; Variance in ink color not reliable when writings affixed to different kinds
of paper.The slight variance in blueness of the ink in the admitted and questioned
signatures does not appear reliable, considering that the standard and challenged writings
were affixed to different kinds of paper.
Same; Same; Fraud or undue influence, diversity of apportionment and prohibition
against contest no evidence of.Neither diversity of apportionment nor prohibition against
contest is evidence of fraud or undue influence in the execution of a will.
Same; Same; Fraud and undue influence are repugnant allegations.Allegations of
fraud and undue influence are mutually repugnant and exclude each other; their joining as
grounds for opposing probate shows absence of definite evidence against the validity of the
will.
Same; Same; Inadvertent failure of an attesting witness to affix his signature to one
page of a will not fatal.The inadvertent failure of an attesting witness to affix his
signature to one page of a testament, due to the simultaneous lifting of two pages in the
course of signing, is not per se sufficient to justify denial of probate.
Same; Same; Signed carbon duplicate of will needs no publication.That the signed
carbon duplicate of a will was produced and admitted without a new publication does not
affect the jurisdiction of the probate court, already conferred by the original publication of
the petition for probate, where the amended petition did not substantially alter the first one
filed, but merely supplemented it by disclosing the existence of said duplicate.

APPEAL from an order of the Court of First Instance of Manila. Caizares, J.

The facts are stated in the opinion of the Court.

Jose W. Diokno for petitioner-appellee.

Rosendo J. Tansinsin for oppositor-appellant Natividad Icasiano.
Jaime R. Nuevas for oppositor-appellant Enrique Icasiano.
REYES, J.B.L., J.:
Appeal from an order of the Court of First Instance of Manila admitting to probate
the document and its duplicate, marked as Exhibits "A" and "A-1", as the true last
will and testament of Josefa Villacorte, deceased, and appointing as executor Celso
Icasiano, the person ramed therein as such.
This special proceeding was begun on October 2, 1958 by a petition for the
allowance and admission to probate of the original, Exhibit "A" as the alleged will of
Josefa Villacorte, deceased, and for the appointment of petitioner Celso Icasiano as
executor thereof.
The court set the proving of the alleged will for November 8, 1958, and caused
notice thereof to be published for three (3) successive weeks, previous to the time
appointed, in the newspaper "Manila Chronicle", and also caused personal service of
copies thereof upon the known heirs.
On October 31, 1958, Natividad Icasiano, a daughter of the testatrix, filed her
opposition; and on November 10, 1958, she petitioned to have herself appointed as a
special administrator, to which proponent objected. Hence, on November 18, 1958,
the court issued an order appointing the Philippine Trust Company as special
administrator.
On February 18, 1959, Enrique Icasiano, a son of the testatrix, also filed a
manifestation adopting as his own Natividad's opposition to the probate of the
alleged will
On March 19, 1959, the petitioner proponent commenced the introduction of his
evidence; but on June 1, 1959, he filed a motion for the admission of an amended
and supplemental petition, alleging that the decedent left a will executed in
duplicate with all the legal requirements, and that he was, on that dates submitting
the signed duplicate (Exhibit "A-1"), which he allegedly found only on or about May

26, 1959. On June 17, 1959, oppositors Natividad Icasiano de Gomez and Enrique
Icasiano filed their joint opposition to the admission of the amended and
supplemental petition, but by order of July 20, 1959, the court admitted said
petition, and on July 30, 1959, oppositor Natividad Icasiano filed her amended
opposition. Thereafter, the parties presented their respective evidence, and after
several hearings the court issued the order admitting the will and its duplicate to
probate, From this order, the oppositors appealed directly to this Court, the amount
involved being over P200,000.00, on the ground that the same is contrary to law and
the evidence.
The evidence presented for the petitioner is to the effect that Josefa Villacorte
died in the City of Manila on September 12, 1958; that on June 2, 1956, the late
Josefa Villacorte executed a last will and testament in duplicate at the house of her
daughter Mrs. Felisa Icasiano at Pedro Guevara Street, Manila, published before
and attested by three instrumental witnesses, namely: attorneys Justo P. Torres, Jr.
and Jose V. Natividad, and Mr. Vinicio B. Diy; that the will was acknowledged by
the testatrix and by the said three instrumental witnesses on the same date before
attorney Jose Oyengco Ong, Notary Public in and for the City of Manila; and that
the will was actually prepared by attorney Fermin Samson, who was also present
during the execution and signing of the decedent's last will and testament, together
with former Governor Emilio Rustia of Bulacan, Judge Ramon Icasiano, and a little
girl. Of the said three instrumental witnesses to the execution of the decedent's last
will and testament, attorneys Torres and Natividad were in the Philippines at the
time of the hearing, and both testified as to the due execution and authenticity of
the said will So did the Notary Public before whom the will was acknowledged by
the testatrix and attesting witnesses, and also attorneys Fermin Samson, who
actually prepared the document. The latter also testified upon cross examination
that he prepared one original and two copies of Josefa Villacorte's last will and
testament at his house in Baliuag, Bulacan, but he brought only one original and
one signed copy to Manila, retaining one unsigned copy in Bulacan.
The records show that the original of the will, which. was surrendered
simultaneously with the filing of the petition and marked as Exhibit "A" consists of
five pages, and while signed at the end and in every page, it does not contain the
signature of one of the attesting witnesses, Atty. Jose V. Natividad, on page three (3)
thereof; but the duplicate copy attached to the amended and supplemental petition

and marked as Exhibit' "A-1" is signed by the testatrix and her three attesting
witnesses in each and every page.
The testimony presented by the proponents of the will tends to show that the
original of the will and its duplicate were subscribed at the end and on the lef t
margin of each and every page thereof by the testatrix herself and attested and
subscribed by the three mentioned witnesses in the testatrix's presence and in that
of one another as witnesses (except for the missing signature of attorney Natividad
011 page three (3) of the original); that pages of the original and duplicate of said
will were duly numbered; that the attestation clause thereof contains all the facts
required by law to be recited therein and is signed by the aforesaid attesting
witnesses; that the will is written in the language known to and spoken by the
testatrix; that the attestation clause is in a language also known to and spoken by
the witnesses; that the will was executed on one single occasion in duplicate copies;
and that both the original and the.duplicate copies were duly acknowledged before
Notary Public Jose Oyengco of Manila on the same dateJune 2, 1956.
Witness Natividad, who testified on his failure to sign page three (3) of the
original, admits that he may havelifted two pages instead of one when he signed the
same, but affirmed that page three (3) was signed in his presence.
Oppositors-appellants in turn introduced expert testimony to the effect that the
signatures of the testatrix in the duplicate (Exhibit "A-1") are not genuine nor were
they written or affixed on the same occasion as "the original, and. further aver 'that
granting. that the documents were genuine, they were executed through mistake
and with undue influence and pressure because the testatrix was deceived into
adopting as her last will and testament the wishes of those who will stand to benefit
from the provisions of the will, as may be inferred from the facts and circumstances
surrounding the execution of the will and the provisions and dispositions thereof,
whereby proponents-appellees stand to profit; from properties held by them as
attorneys-in-fact of the deceased and not enumerated or mentioned therein, while
oppositors-appellants are enjoined not to look for other properties not mentioned in
the will, and not to oppose the probate of it, on penalty of forfeiting their share
in the portion of free disposal.
We have examined the record and are satisfied, as the trial court was, that the
testatrix signed both original and duplicate copies (Exhibits "A" and "A-1",

respectively) of the will spontaneously, on the same occasion, in the presence of the
three attesting witnesses, the notary public who acknowledged the will; and Atty.
Samson, who actually prepared the documents; that the will and its duplicate were
executed in Tagalog, a language known to and spoken by both the testator and the
witnesses, ,and read to and by the testatrix and Atty. Fermin Samson, together
before they were actually signed; that the attestation clause is also in a language
known to and spoken by the testatrix and the witnesses. The opinion of expert for
oppositors, Mr, Felipe Logan, that the signatures of the testatrix appearing in the
duplicate original were not written by the same hand which wrote the signatures in
the original will leaves us unconvinced, not merely because it is directly
contradicted by expert Martin Ramos for the proponents, but principally because of
the paucity of the standards used by him to support the conclusion that the
differences between the standard and questioned signatures are beyond the writer's
range of normal scriptural variation. The expert has, in fact, used as standards only
three other signatures of the testatrix besides those affixed to the original of the
testament (Exh. A); and we feel that with so few standards the expert's opinion and
the signatures in the duplicate could not be those of the testatrix becomes extremely
hazardous. This is particularly so since the comparison charts Nos. 3 and 4 fail to
show convincingly that there are radical differences that would justify the charge of
forgery, taking into account the advanced age of the testatrix, the evident variability
of her signatures, and the effect of writing fatigue, the duplicate being signed right
the original. These factors were not discussed by the expert.
Similarly, the alleged slight variance in blueness of the ink in the admitted and
questioned signatures does not appear reliable, considering the standard and
challenged writings were affixed to different kinds of paper, with different surfaces
and reflecting power. On the whole therefore, we do not find the testimony of the
oppositor's expert sufficient to overcome that of the notary and the two instrumental
witnesses, Torres and Natividad (Dr. Diy, being in the United States during the
trial, did not testify).
Nor do we find adequate evidence of fraud or undue influence. The fact that some
heirs are more favored than others is proof of neither (see In re Butalid, 10 Phil.
27;Bugnao vs. Ubag, 14 Phil. 163; Pecson vs. Coronel, 45 Phil. 218). Diversity of
apportionment is the usual reason for making a testament; otherwise, the decedent
might as well die intestate. The testamentary dispositions that the heirs should not
inquire into other property and that they should respect the distribution made in

the will, under penalty of forfeiture of their shares in the free part do not suffice to
prove fraud or undue influence. They appear motivated by the desire to prevent
prolonged litigation which, as shown by ordinary experience, often results in a
sizeable portion of the estate being diverted into the hands of non-heirs and
speculators. Whether these clauses are valid or not is a matter to be litigated on
another occasion. It is also well to note that, as remarked by the Court of Appeals in
Sideco vs. Sideco; 45 Off. Gaz. 168, fraud and undue influence are mutually
repugnant and exclude each other; their joining as grounds for opposing probate
shows absence of definite evidence against the validity of the will.
On the question of law, we hold that the inadvertent failure of one witness to af fix
his signature to one page of a testament, due to the simultaneous lifting of two
pages in the course of signing, is not per se sufficient to justify denial of probate.
Impossibility of substitution of this page is assured not only the fact that the
testatrix and two other witnesses did sign the defective page, but also by its bearing
the coincident imprint of the seal of the notary public before whom the testament
was ratified by testatrix and all three witnesses. The law should not be so strictly
and literally interpreted as to penalize the testatrix on account of the inadvertence
of a single witness over whose conduct she had no control, where the purpose of the
law to guarantee the identity of the testament and its component pages is
sufficiently attained, no intentional or deliberate deviation existed, and the evidence
on record attests to the full observance of the statutory requisites. Otherwise, as
stated in Vda. de Gil. vs. Murciano, 49 Off. Gaz. 1459, at 1479 (decision on
reconsideration) "witnesses may sabotage the will by muddling or bungling it or the
attestation clause".
That the failure of witness Natividad to sign page three (3) was entirely through
pure oversight is shown by his own testimony as well as by the duplicate copy of the
will, which bears a complete set of signatures in every page. The text of the
attestation clause and the acknowledgment before the Notary Public likewise
evidence that no one was aware of the defect at the time.
This would not be the first time that this Court departs from a strict and literal
application of the statutory requirements, where the purposes of the law are
otherwise satisfied, Thus, despite the literal tenor of the law, this Court has held
that a testament, with the only page signed at its foot by testator and witnesses, but
not in the left margin, could nevertheless be probated (Abangan vs. Abangan, 41

Phil. 476); and that despite the requirement for the correlative lettering of the pages
of a will, the failure to make the f irst page either by letters or numbers is not a fatal
defect (Lopez vs. Liboro, 81 Phil. 429). These precedents exemplify the Court's policy
to require satisfaction of the legal requirements in order to guard 'against fraud and
bad faith but without undue or unnecessary curtailment of the testamentary
privilege.
The appellants also argue that since the original of the will is in existence and
available, the duplicate (Exh. A-1) is not entitled to probate. Since they opposed
probate of original because it lacked one signature in its third.page, it is easily
discerned that oppositors-appellants run here into a dilemma; if the original is
defective and invalid, then in law there is no other will but the duly signed carbon
duplicate (Exh. A-1), and the same is probatable. If the original is valid and can be
probated, then the objection to the signed duplicate need not be considered, being
superfluous and irrelevant. At any rate, said duplicate, Exhibit A-1, serves to prove
that the omission of one signature in the third page of the original testament was
inadvertent and not intentional.
That the carbon duplicate, Exhibit A-1, was produced and admitted without a
new publication does not affect the jurisdiction of the probate court, already
conferred by the original publication of the petition for probate. The amended
petition did not substantially alter the one first filed, but merely supplemented it by
disclosing the existence of the duplicate, and no showing is made that new interests
were involved (the contents of Exhibit A and A-1 are admittedly identical); and
appellants were duly notified of the proposed amendment. It is nowhere proved or
claimed that the amendment deprived the appellants of any substantial right, and
we see no error in admitting the amended petition.
IN VIEW OF THE FOREGOING, the decision appealed from is affirmed, with
costs against appellants.
Bengzon,
C.J., Padilla, Bautista, Angelo, Labrador,Concepcion, Paredes, Regala and Makalint
al, JJ., concur.
Barrera and Dizon, JJ., took no part,
Decision affirmed.

Notes.Cf. Santos v. De Buenaventura, L-22797, Sept. 22,1966, 18 SCRA 47,

where the will provides that any one of the heirs, legatees, and devisees who
contests or opposes the probate of the will or the carrying out of its provisions shall
Jose any right to receive any inheritance or benefit under said will, and their
inheritance or share shall pertain to the other heirs who have not opposed.
It must be conceded that in this jurisdiction, the subscribing witnesses to a
contested will are regarded as the best witnesses in connection with its due
execution. It is similarly true, however, that to deserve full credit , their testimony
must be reasonable and unbiased, and that, as in the case of any other witness,
their testimony may be overcome by any competent evidence, direct or
circumstantial (Junquera v. Borromeo, et al., L-1849S, March 30, 1967, 19 SCRA
656).
oOo

[No. 13431. November 12, 1919.]

In re will

of

Ana

Abangan.

GERTRUDIS

ABANGAN,

executrix

and

appellee, vs. ANASTACIA ABANGAN ET AL., opponents and appellants.

1. 1.WILLS; ATTESTATION.In a will consisting of two sheets the first of which contains all
the testamentary dispositions and is signed at the bottom by the testator and three
witnesses and the second contains only the attestation clause and is signed also at the
bottom by the three witnesses, it is not necessary that both sheets be further signed on their
margins by the testator and the witnesses, or be paged.
1. 2.ID.; ID.; TESTATOR'S SIGNATURE.The testator's signature is not necessary in the
attestation clause because this, as its name implies, appertains only to the witnesses and
not to the testator.

1. 3.ID.; DIALECT IN WHICH WRITTEN; PRESUMPTION.The circumstance appearing in

the will itself that.same was executed in the city of Cebu and in the dialect of this locality
where the testatrix was a neighbor is enough, in the absence of any proof to the contrary, to
presume that she knew this dialect in which her will is written.

APPEAL from a judgment of the Court of First Instance of Cebu. Wislizenus, J.

The facts are stated in the opinion of the court.
Filemon Sotto for appellants.
M. Jesus Cuenco for appellee.
AVANCEA, J.:
On September 19, 1917, the Court of First Instance of Cebu admitted to probate Ana
Abangan's will executed July, 1916. From this decision the opponents appealed.
Said document, duly probated as Ana Abangan's will, consists of two sheets, the first of
which contains all of the disposition of the testatrix, duly signed at the bottom by Martin
Montalban (in the name and under the direction of the testatrix) and by three witnesses.
The following sheet contains only the attestation clause duly signed at the bottom by the
three instrumental witnesses. Neither of these sheets is signed on the left margin by the
testatrix and the three witnesses, nor numbered by letters; and these omissions, according
to appellants' contention, are defects whereby the probate of the will should have been
denied. We are of the opinion that the will was duly admitted to probate.
In requiring that each and every sheet of the will should also be signed on the left
margin by the testator and three witnesses in the presence of each other, Act No. 2645
(which is the one applicable in the case) evidently has for its object (referring- to the body of
the will itself) to avoid the substitution of any of said sheets, thereby changing the testator's
dispositions. But when these dispositions are wholly written on only one sheet signed at the
bottom by the testator and three witnesses (as the instant case), their signatures on the left
margin of said sheet would be completely purposeless. In requiring this signature on the
margin, the statute took into consideration, undoubtedly, the case of a will written on
several sheets and must have referred to the sheets which the testator and the witnesses do
not have to sign at the bottom. A different interpretation would assume that the statute

requires that this sheet, already signed at the bottom, be signed twice. We cannot attribute
to the statute such an intention. As these signatures must be written by the testator and
the witnesses in the presence of each other, it appears that, if the signatures at the bottom
of the sheet guaranties its authenticity, another signature on its left margin would be
unnecessary; and if they do not guaranty, same signatures, affixed on another part of same
sheet, would add nothing. We cannot assume that the statute regards of such importance
the place where the testator and the witnesses must sign on the sheet that it would
consider that their signatures written on the bottom do not guaranty the authenticity of the
sheet but, if repeated on the margin, give sufficient security.
In requiring that each and every page of a will must be numbered correlatively in letters
placed on the upper part of the sheet, it is likewise clear that the object of Act No. 2645 is to
know whether any sheet of the will has been removed. But, when all the dispositive parts of
a will are written on one sheet only, the object of the statute disappears because the
removal of this single sheet, although unnumbered, cannot be hidden.
What has been said is also applicable to the attestation clause. Wherefore, without
considering whether or not this clause is an essential part of the will, we hold that in the
one accompanying the will in question, the signatures of the testatrix and of the three
witnesses on the margin and the numbering of the pages of the sheet are formalities not
required by the statute. Moreover, referring specially to the signature of the testatrix, we
can add that same is not necessary in the attestation clause because this, as its name
implies, appertains only to the witnesses and not to the testator since the latter does not
attest, but executes, the will.
Synthesizing our opinion, we hold that in a will consisting of two sheets the first of which
contains all the testamentary dispositions and is signed at the bottom by the testator and
three witnesses and the second contains only the attestation clause and is signed also at the
bottom by the three witnesses, it is not necessary that both sheets be further signed on
their margins by the testator and the witnesses, or be paged.
The object of the solemnities surrounding the execution of wills is to close the door
against bad faith and fraud, to avoid substitution of wills and testaments and to guaranty
their truth and authenticity. Therefore the laws on this subject should be interpreted in
such a way as to attain these primordial ends. But, on the other hand, also one must not
lose sight of the fact that it is not the object of the law to restrain and curtail the exercise of

the right to make a will. So when an interpretation already given assures such ends, any
other interpretation whatsoever, that adds nothing but demands more requisites entirely
unnecessary, useless and frustrative of the testator's last will, must be disregarded.
As another ground for this appeal, it is alleged the records do not show that the testatrix
knew the dialect in which the will is written. But the circumstance appearing in the will
itself that same was executed in the city of Cebu and in the dialect of this locality where the
testatrix was a neighbor is enough, in the absence of any proof to the contrary, to presume
that she knew this dialect in which this will is written.
For the foregoing considerations, the judgment appealed from is hereby affirmed with
costs against the appellants. So ordered.
Arellano, C. J., Torres, Johnson, Araullo, Street andMalcolm, JJ., concur.
Judgment affirmed.
____________

[No. L-5826.April 29, 1953]

Testate

estate

of

the

late VICENTE

CAGRO. JESUSA

CAGRO,petitioner

and

appellee, vs. PELAGIO CAGRO, ET AL.,oppositors and appellants.

WILLS; ATTESTATION CLAUSE; LACK OF SIGNATURES OF ATTESTING WITNESSES AT BOTTOM
OF ATTESTATION CLAUSE, IS FATAL DEFECT.Inasmuch as the signatures of the three
witnesses to the will do not appear at the bottom of the attestation clause, although the
page containing the same is signed by the witnesses on the left-hand margin, the will is
fatally defective. The attestation clause is "a memorandum of the facts attending the
execution of the will" required by law to be made by the attesting witnesses, and it must
necessarily bear their signatures.
APPEAL from a judgment of the Court of First Instance of Samar. Moscoso, J.
The facts are stated in the opinion of the Court.
Clouduallo Lucero and Vicente C. Santos for appellants.

Marciano Chitongco and Zosimo B. Echanova for appellee.

PARAS,C. J.:
This is an appeal interposed by the oppbsitors from a decision of the Court of First
Instance of Samar, admitting to probate the will allegedly executed by Vicente Cagro who
died in Laoangan, Pambujan, Samar, on February 14, 1949.
The main objection insisted upon by the appellants is that the will is fatally defective,
because its attestation clause is not signed by the attesting witnesses. There is no question
that the signatures of the three witnesses to the will do not appear at the bottom of the
attestation clause, although the page containing the same is signed by the witnesses on the
left-hand margin.
We are of the opinion that the position taken iby the appellant is correct. The attestation
clause is "a memorandum of the facts attending the execution of the will" required by law to
be made by the attesting witnesses, and it must necessarily bear their signatures. An
unsigned attestation clause cannot be considered as an act of the witnesses, since the
omistsion of their signatures at the bottom thereof negatives their participation.
The petitioner and appellee contends that signatures of the three witnesses on the lefthand margin conform substantially to the law and may be deemed as their signatures to
the attestation clause. This is untenable, because said signatures are in compliance with
the legal mandate that the will be signed on the left-hand margin of all its pages. If an
attestation clause not signed by the three witnesses at the bottom thereof, be admitted as
sufficient, it would be easy to add such clause to a will on a subsequent occasion and in the
absence of the testator and any or all of the witnesses.
Wherefore, the appealed decision is reversed and the probate of the will in question
denied. So ordered with costs against the petitioner and appellee.
Pablo, Bengzon, Montemayor, Jugo, and Labrador, JJ.,concur.
BAUTISTA ANGELO,J., dissenting:
I dissent. In my opinion the will in question has substantially complied with the
formalities of the law and, therefore, should be admitted to probate. It appears that the will
was signed by the testator and was attested by three instrumental witnesses, not only at
the bottom, but also on the left-hand margin. The witnesses testified not only that the will
was signed by the testator in their presence and in the presence of each other but also that
when they did so, the attestation clause was already written thereon. Their testimony has
not been contradicted. The only objection set up by the oppositors to the validity of the will
is the fact that the signatures of the instrumental witnesses do not appear immediately
after the attestation clause.
This objection is too technical to be entertained. In the case of Abangan vs. Abangan, (40
Phil., 476), this court said that when the testamentary dispositions "are wholly written on
only one sheet signed at the bottom by the testator and three witnesses (as the instant

case), their signatures on the left margin of said sheet would be completely purposeless." In
such a case, the court said, the requirement of the signatures on the left hand margin was
not necessary because the purpose of the lawwhich is to avoid the substitution of any of
the sheets of the will, thereby changing the testator's dispositionshas already been
accomplished. We may say the same thing in connection with the will under consideration
because while the three instrumental witnesses did not sign immediately after the
attestation clause, the fear entertained by the majority that it may have been only added on
a subsequent occasion and not at the signing of the will, has been obviated by the
uncontradicted testimony of said witnesses to the effect that such attestation clause was
already written in the will when the same was signed.
The following observation made by this court in the Abangan case is very fitting:
"The object of the solemnities surrounding the execution of wills is to close the door against bad
faith and fraud, to avoid substitution of wills and testaments and to guaranty their truth and
authenticity. Therefore the laws on this subject should be interpreted in such a way as to attain these
primordial ends. But, on the other hand, also one must not lose sight of the fact that it is not the
object of the law to restrain and curtail the exercise of the right to make a will. So when an
interpretation already given assures such ends, any other interpretation whatsoever, that adds
nothing but demands more requisites entirely unnecessary, useless and frustrative of the testator's
last will, must be disregarded." (supra)

We should not also overlook the liberal trend of the New Civil Code in the matter of
interpretation of wills, the purpose of which, in case of doubt, is to give such interpretation
that would have the effect of preventing intestacy (articles 788 and 791, New Civil Code).
I am therefore of the opinion that the will in question should be admitted to probate.
Feria, J., concurs.
TUASON, J., dissenting:
I concur in Mr. Justice Bautista's dissenting opinion and may add that the majority
decision erroneously sets down as a fact that the attestation clause was not signed, when
the witnesses' signatures appear on the left margin and the real and only question is
whether such signatures are legally sufficient.
The only answer, in our humble opinion, is yes. The law on wills does not provide that
the attesting witness should sign the clause at the bottom. In the absence of such provision,
there is no reason why signatures on the margin are not good. A letter is not any the less
the writer's simply because it was signed, not at the conventional place but on the side or on
top.
Feria, J., concurs.
Judgment reversed and the probate of the will denied.

[No. 5971. February 27, 1911.]

BEATRIZ NERA ET AL., plaintiffs and appellees, vs.NARCISA RIMANDO, defendant and
appellant.
1. 1.EXECUTION OF WlLLS; POSITION OF TESTATOR AND WlTNESS WHEN WILL is
SUBSCRIBED.The position of testator and of the witnesses to a will, at the moment of
the subscription by each, must be such that they may see each other sign if they choose to do
so.
1. 2.ID. ; ID.; SIGNING IN THE PRESENCE OF EACH OTHER.The question whether the
testator and the subscribing witnesses to an alleged will sign the instrument in the
presence of each other does not depend upon proof of the fact that their eyes were actually
cast upon the paper at the moment of its subscription by each of them, , but whether at that
moment existing conditions and the position of the parties, with relation to each other, were
such that by merely casting their eyes in the proper direction they could have seen each
other sign.
1. 3.ID.; ID.; ID.; ONE WITNESS IN OUTER ROOM WHEN WILL is SIGNED.If one
subscribing witness to a will is shown to have been in an outer room at the time when the
testator and the other witnesses attach their signatures to the instrument in an inner room,
the will would be held invalidthe attaching of the said signatures, under such
circumstances, not being done "in the presence" of the witness in the outer room.

APPEAL from a decree of the Court of First Instance of La Union. Moir, J.

The facts are stated in the opinion of the court.
Valerio Fontanilla and Andres Asprer, for appellant.
Anacleto Diaz, for appellees.
CARSON, J.:

The only question raised by the evidence in this case as to the due execution of the
instrument propounded as a will in the court below, is whether one of the subscribing
witnesses was present in the small room where it was executed at the time when the
testator and the other subscribing witnesses attached their signatures; or whether at that
time he was outside, some eight or ten feet away, in a large room connecting with the
smaller room by a doorway, across which was hung a curtain which made it impossible for
one in the outside room to see the testator and the other subscribing witnesses in the act of
attaching their signatures to the instrument.
A majority of the members of the court is of opinion that this subscribing witness was in
the small room with the testator and the other subscribing witnesses at the time when they
attached their signatures to the instrument, and this finding, of course, disposes of the
appeal and necessitates the affirmance of the decree admitting the document to probate as
the last will and testament of the deceased.
The trial judge does not appear to have considered the determination of this question of
fact of vital importance in the determination of this case, as he was of opinion that under
the doctrine laid down in the case of Jaboneta vs.Gustilo (5 Phil. Rep., 541) the alleged fact
that one of the subscribing witnesses was in the outer room when the testator and the other
describing witnesses signed the instrument in the inner room, had it been proven, would
not be sufficient in itself to invalidate the execution of the will. But we are unanimously of
opinion that had this subscribing witness been proven to have been in the outer room at the
time when the testator and the other subscribing witnesses attached their signatures to the
instrument in the inner room, it would 'have been invalid as a will, the attaching of those
signatures under such circumstances not being done "in the presence" of the witness in the
outer room. This because the line of vision from this witness to the testator and the other
subscribing witnesses would necessarily have been impeded by the curtain separating the
inner room from the outer one "at the moment of inscription of each signature."
In the case just cited, on which the trial court relied, we held that:
"The true test of presence of the testator and the witnesses in the execution of a will is
not whether they actually saw each other sign, but whether they might have seen each other
sign, had they chosen to do so, considering their mental and physical condition and position
with relation to each other at the moment of inscription of each signature."

But it is especially to be noted that the position of the parties with relation to each
other at the moment of the subscription of each signature, must be such that they may see
each other sign if they choose to do so. This, of course, does not mean that the testator and
the subscribing witnesses may be held to have executed the instrument in the presence of
each other if it appears that they would not have been able to see each other sign at that
moment, without changing their relative positions or existing conditions. The evidence in
the case relied upon by the trial judge discloses that "at the moment when the witness
Javellana signed the document he was actually and physically present and in such position
with relation to Jaboneta that he could see everything that took place by merely casting his
eyes in the proper direction and without any physical obstruction to prevent his doing
so." And the decision merely laid down the doctrine that the question whether the testator
and the subscribing witnesses to an alleged will sign the instrument in the presence of each
other does not depend upon proof of the fact that their eyes were actually cast upon the
paper at the moment of its subscription by each of them, but that at that moment existing
conditions and their position with relation to each other were such that by merely casting
the eyes in the proper direction they could have seen each other sign. To extend the doctrine
further would open the door to the possibility of all manner of fraud, substitution, and the
like, and would defeat the purpose for which this particular condition is prescribed in the
code as one of the requisites in the execution of a will.
The decree entered by the court below admitting the instrument propounded therein to
probate as the last will and testament of Pedro Rimando, deceased, is affirmed with costs of
this instance against the appellant.
Arellano, C. J., Mapa, Moreland, and Trent, JJ.,concur.
Decree affirmed.
___________

G.R. No. 122880. April 12, 2006.

FELIX AZUELA, petitioner, vs. COURT OF APPEALS, GERALDA

CASTILLO substituted by ERNESTO G. CASTILLO, respondents.

AIDA

Wills and Succession; Notarial Will; Attestation Clause; The enactment of the Civil
Code in 1950 did put in force a rule of interpretation of the requirements of wills, at least
insofar as the attestation clause is concerned.Both Uy Coque and Andradawere decided
prior to the enactment of the Civil Code in 1950, at a time when the statutory provision
governing the formal requirement of wills was Section 618 of the Code of Civil Procedure.
Reliance on these cases remains apropos, considering that the requirement that the
attestation state the number of pages of the will is extant from Section 618. However, the
enactment of the Civil Code in 1950 did put in force a rule of interpretation of the
requirements of wills, at least insofar as the attestation clause is concerned, that may vary
from the philosophy that governed these two cases. Article 809 of the Civil Code states: In
the absence of bad faith, forgery, or fraud, or undue and improper pressure and influence,
defects and imperfections in the form of attestation or in the language used therein shall
not render the will invalid if it is proved that the will was in fact executed and attested in
substantial compliance with all the requirements of article 805.
Same; Same; Same; A failure by the attestation clause to state that the testator signed
every page can be liberally construed, since that fact can be checked by a visual examination,
while a failure by the attestation clause to state that the witnesses signed in one anothers
presence should be considered a fatal flaw since the attestation is the only textual guarantee
of compliance.[I]t may thus be stated that the rule, as it now stands, is that omission
which can be supplied by an examination of the will itself, without the need of resorting to
extrinsic evidence, will not be fatal and, correspondingly, would not obstruct the allowance
to probate of the will being assailed. However, those omissions which cannot be supplied

except by evidence aliunde would result in the invalidation of the attestation clause and
ultimately, of the will itself. Thus, a failure by the attestation clause to state that the
testator signed every page can be liberally construed, since that fact can be checked by a
visual examination; while a failure by the attestation clause to state that the witnesses
signed in one anothers presence should be considered a fatal flaw since the attestation is
the only textual guarantee of compliance.
Same; Same; Same; The failure of the attestation clause to state the number of pages on
which the will was written remains a fatal flaw, despite Article 809; The purpose of the law
in requiring the clause to state the number of pages on which the will is written is to
safeguard against possible interpolation or omission of one or some of its pages and to
prevent any increase or decrease in the pages; There is substantial compliance with this
requirement if the will states elsewhere in it how many pages it is comprised of.The failure
of the attestation clause to state the number of pages on which the will was written remains
a fatal flaw, despite Article 809. The purpose of the law in requiring the clause to state the
number of pages on which the will is written is to safeguard against possible interpolation
or omission of one or some of its pages and to prevent any increase or decrease in the pages.
The failure to state the number of pages equates with the absence of an averment on the
part of the instrumental witnesses as to how many pages consisted the will, the execution of
which they had ostensibly just witnessed and subscribed to. Following Caneda, there is
substantial compliance with this requirement if the will states elsewhere in it how many
pages it is comprised of, as was the situation in Singson and Taboada. However, in this
case, there could have been no substantial compliance with the requirements under Article
805 since there is no statement in the attestation clause or anywhere in the will itself as to
the number of pages which comprise the will.
Same; Same; Same; The fact remains that the members of the Code Commission saw fit
to prescribe substantially the same formal requisites enumerated in Section 618 of the Code
of Civil Procedure, convinced that these remained effective safeguards against forgery or
intercalation of notarial wills; The transcendent legislative intent, even as expressed in the
comments of the Code Commission, is for the fruition of the testators incontestable desires,
and not for indulgent admission of wills to probate.At the same time, Article 809 should
not deviate from the need to comply with the formal requirements as enumerated under
Article 805. Whatever the inclinations of the members of the Code Commission in
incorporating Article 805, the fact remains that they saw fit to prescribe substantially the
same formal requisites as enumerated in Section 618 of the Code of Civil Procedure,
convinced that these remained effective safeguards against the forgery or intercalation of
notarial wills. Compliance with these requirements, however picayune in impression,
affords the public a high degree of comfort that the testator himself or herself had decided
to convey property post mortem in the manner established in the will. The transcendent

legislative intent, even as expressed in the cited comments of the Code

Commission, is for the fruition of the testators incontestable desires, and not for
the indulgent admission of wills to probate.
Same; Same; Same; Instrumental Witnesses; Article 805 particularly segregates the
requirement that the instrumental witnesses sign each page of the will, from the requisite
that the will be attested and subscribed by [the instrumental witnesses]the respective
intents behind these two classes of signature are distinct from each other; Even if
instrumental witnesses signed the left-hand margin of the page containing the unsigned
clause, such signatures cannot demonstrate these witnesses undertakings in the clause, since
the signatures that do appear on the page were directed towards a wholly different avowal .
The Court today reiterates the continued efficacy of Cagro. Article 805 particularly
segregates the requirement that the instrumental witnesses sign each page of the will, from
the requisite that the will be attested and subscribed by [the instrumental witnesses]. The
respective intents behind these two classes of signature are distinct from each other. The
signatures on the left-hand corner of every page signify, among others, that the witnesses
are aware that the page they are signing forms part of the will. On the other hand, the
signatures to the attestation clause establish that the witnesses are referring to the
statements contained in the attestation clause itself. Indeed, the attestation clause is
separate and apart from the disposition of the will. An unsigned attestation clause results
in an unattested will. Even if the instrumental witnesses signed the left-hand margin of the
page containing the unsigned attestation clause, such signatures cannot demonstrate these
witnesses undertakings in the clause, since the signatures that do appear on the page were
directed towards a wholly different avowal.
Same; Same; Same; It is the attestation clause which contains the utterances reduced
into writing of the testamentary witnesses themselvesit is the witnesses, and not the
testator, who are required under Article 805 to state the number of pages used upon which
the will was written.The Court may be more charitably disposed had the witnesses in this
case signed the attestation clause itself, but not the left-hand margin of the page containing
such clause. Without diminishing the value of the instrumental witnesses signatures on
each and every page, the fact must be noted that it is the attestation clause which contains
the utterances reduced into writing of the testamentary witnesses themselves. It is the
witnesses, and not the testator, who are required under Article 805 to state the number of
pages used upon which the will is written; the fact that the testator had signed the will and
every page thereof; and that they witnessed and signed the will and all the pages thereof in
the presence of the testator and of one another. The only proof in the will that the witnesses
have stated these elemental facts would be their signatures on the attestation clause.

Same; Same; Same; Acknowledgment; An acknowledgment is the act of one who has
executed a deed in going before some competent officer or court and declaring it to be his act
or deed; It involves an extra step undertaken whereby the signor actually declares to the
notary that the executor of the document has attested to the notary that the same is his /her
own free act and deed.Yet, there is another fatal defect to the will on which the denial of
this petition should also hinge. The requirement under Article 806 that every will must be
acknowledged before a notary public by the testator and the witnesses has also not been
complied with. The importance of this requirement is highlighted by the fact that it had
been segregated from the other requirements under Article 805 and entrusted into a
separate provision, Article 806. The non-observance of Article 806 in this case is equally as
critical as the other cited flaws in compliance with Article 805, and should be treated as of
equivalent import. In lieu of an acknowledgment, the notary public, Petronio Y. Bautista,
wrote Nilagdaan ko at ninotario ko ngayong 10 ng Hunyo 10 (sic), 1981 dito sa Lungsod ng
Maynila. By no manner of contemplation can those words be construed as an
acknowledgment. An acknowledgment is the act of one who has executed a deed in going
before some competent officer or court and declaring it to be his act or deed. It involves an
extra step undertaken whereby the signor actually declares to the notary that the executor
of a document has attested to the notary that the same is his/her own free act and deed.
Same; Same; Same; Same; Jurat; A jurat is that part of an affidavit whereby the notary
certifies that before him/her, the document was subscribed and sworn to by the executor.It
might be possible to construe the averment as a jurat, even though it does not hew to the
usual language thereof. A jurat is that part of an affidavit where the notary certifies that
before him/her, the document was subscribed and sworn to by the executor. Ordinarily, the
language of the jurat should avow that the document was subscribed and sworn before the
notary public, while in this case, the notary public averred that he himself signed and
notarized the document. Possibly though, the word ninotario or notarized encompasses
the signing of and swearing in of the executors of the document, which in this case would
involve the decedent and the instrumental witnesses.
Same; Same; Same; Same; Same; The express requirement of Article 806 is that the will
is to be acknowledged, and not merely subscribed and sworn to; The acknowledgment
coerces the testator and the instrumental witnesses to declare before an officer of the law that
they had executed and subscribed to the will as their own free act or deed.Even if we
consider what was affixed by the notary public as a jurat, the will would nonetheless remain
invalid, as the express requirement of Article 806 is that the will be acknowledged, and
not merely subscribed and sworn to. The will does not present any textual proof, much less
one under oath, that the decedent and the instrumental witnesses executed or signed the
will as their own free act or deed. The acknowledgment made in a will provides for another
all-important legal safeguard against spurious wills or those made beyond the free consent

of the testator. An acknowledgement is not an empty meaningless act. The acknowledgment

coerces the testator and the instrumental witnesses to declare before an officer of the law
that they had executed and subscribed to the will as their own free act or deed. Such
declaration is under oath and under pain of perjury, thus allowing for the criminal
prosecution of persons who participate in the execution of spurious wills, or those executed
without the free consent of the testator. It also provides a further degree of assurance that
the testator is of certain mindset in making the testamentary dispositions to those persons
he/she had designated in the will.
Same; Same; Same; Same; A notarial will that is not acknowledged before a notary
public by the testator and the witnesses is fatally defective, even if it is subscribed and sworn
to before a notary public.It may not have been said before, but we can assert the rule, selfevident as it is under Article 806. A notarial will that is not acknowledged before a
notary public by the testator and the witnesses is fatally defective, even if it is
subscribed and sworn to before a notary public.

PETITION for review on certiorari of a decision of the Court of Appeals.

The facts are stated in the opinion of the Court.
Arthem Maceda Potian for petitioner.
Pedro F. Reiz and Ernesto M. Tomaneng for respondents.
TINGA, J.:
The core of this petition is a highly defective notarial will, purportedly executed by
Eugenia E. Igsolo (decedent), who died on 16 December 1982 at the age of 80. In
refusing to give legal recognition to the due execution of this document, the Court is
provided the opportunity to assert a few important doctrinal rules in the execution
of notarial wills, all self-evident in view of Articles 805 and 806 of the Civil Code.
A will whose attestation clause does not contain the number of pages on

which the will is written is fatally defective. A will whose attestation

clause is not signed by the instrumental witnesses is fatally defective. And
perhaps

most

importantly,

will

which

does

not

contain

an

acknowledgment, but a mere jurat, is fatally defective. Any one of these

defects is sufficient to deny probate. A notarial will with all three defects is
just aching for judicial rejection.

There is a distinct and consequential reason the Civil Code provides a

comprehensive catalog of imperatives for the proper execution of a notarial will. Full
and faithful compliance with all the detailed requisites under Article 805 of the
Code leave little room for doubt as to the validity in the due execution of the notarial
will. Article 806 likewise imposes another safeguard to the validity of notarial wills
that they be acknowledged before a notary public by the testator and the
witnesses. A notarial will executed with indifference to these two codal provisions
opens itself to nagging questions as to its legitimacy.
The case stems from a petition for probate filed on 10 April 1984 with the
Regional Trial Court (RTC) of Manila. The petition filed by petitioner Felix Azuela
sought to admit to probate the notarial will of Eugenia E. Igsolo, which was
notarized on 10 June 1981. Petitioner is the son of the cousin of the decedent.
The will, consisting of two (2) pages and written in the vernacular Pilipino, read
in full:
HULING HABILIN NI EUGENIA E. IGSOLO
SA NGALAN NG MAYKAPAL, AMEN:
AKO, si EUGENIA E. IGSOLO, nakatira sa 500 San Diego St., Sampaloc, Manila,
pitongput siyam (79) na gulang, nasa hustong pagi-isip, pag-unawa at memoria ay naghahayag na ito na ang aking huling habilin at testamento, at binabali wala ko lahat ang
naunang ginawang habilin o testamento:
UnaHinihiling ko na ako ay mailibing sa Sementerio del Norte, La Loma sang-ayong
sa kaugalian at patakaran ng simbahang katoliko at ang taga-pag-ingat (Executor) ng
habiling ito ay magtatayo ng bantayog upang silbing ala-ala sa akin ng aking pamilya at
kaibigan;
PangalawaAking ipinagkakaloob at isinasalin ang lahat ng karapatan sa aking
pamangkin na si Felix Azuela, na siyang nag-alaga sa akin sa mahabang panahon, yaong
mga bahay na nakatirik sa lote numero 28, Block 24 at nakapangalan sa Pechaten
Korporasyon, ganoon din ibinibigay ko ang lahat ng karapatan sa bahay na nakatirik sa
inoopahan kong lote, numero 43, Block 24 na pag-aari ng Pechaten Corporation.
Ipinagkakaloob kong buong buo ang lahat ng karapatan sa bahay at lupa na nasa 500 San
Diego St., Lot 42, Block 24, Sampaloc, Manila kay Felix Azuela at ang pagkakaloob kong ito
ay walang pasubalit at kondiciones;

PangatloNa ninunumbrahan ko si VART PAGUE na siyang nagpapatupad ng huling

habiling ito at kagustuhan ko rin na hindi na kailanman siyang mag-lagak ng piyansiya.
Aking nilagdaan ang Huling Habilin na ito dito sa Maynila ika 10 ng Hunyo, 1981.
(Sgd.)
EUGENIA E. IGSOLO
(Tagapagmana)
127PATUNAY NG MGA SAKSI

Ang kasulatang ito, na binubuo ng ____ dahon pati ang huling dahong ito, na ipinahayag sa
amin ni Eugenia E. Igsolo, tagapagmana na siya niyang Huling Habilin, ngayon ika-10 ng
Hunyo 1981, ay nilagdaan ng nasabing tagapagmana sa ilalim ng kasulatang nabanggit at
sa kaliwang panig ng lahat at bawat dahon, sa harap ng lahat at bawat sa amin, at kami
namang mga saksi ay lumagda sa harap ng nasabing tagapagmana at sa harap ng lahat at
bawat isa sa amin, sa ilalim ng nasabing kasulatan at sa kaliwang panig ng lahat at bawat
dahon ng kasulatan ito.
EUGENIA E. IGSOLO
address: 500 San Diego St.
Sampaloc, Manila Res. Cert. No. A-7717-37
Issued at Manila on March 10, 1981.
QUIRINO AGRAVA
address: 1228-Int. 3, Kahilum
Pandacan, Manila Res. Cert. No. A-458365
Issued at Manila on Jan. 21, 1981
LAMBERTO C. LEAO
address: Avenue 2, Blcok 7,
Lot 61, San Gabriel, G.MA., Cavite Res.
Cert. No. A-768277 issued at Carmona, Cavite
on Feb. 7, 1981
JUANITO ESTRERA
address: City Court Compound,
City of Manila Res. Cert. No. A574829
Issued at Manila on March 2, 1981.
Nilagdaan ko at ninotario ko ngayong 10 ng Hunyo 10, 1981 dito sa Lungsod ng Maynila.

(Sgd.)
PETRONIO Y. BAUTISTA
Doc. No. 1232 ;

NOTARIO PUBLIKO

Page No. 86 ;

Until Dec. 31, 1981

Book No. 43 ;

PTR-152041-1/2/81-Manila

Series of 1981

TAN # 1437-977-8

The three named witnesses to the will affixed their signatures on the left-hand
margin of both pages of the will, but not at the bottom of the attestation clause.
The probate petition adverted to only two (2) heirs, legatees and devisees of the
decedent, namely: petitioner himself, and one Irene Lynn Igsolo, who was alleged to
have resided abroad. Petitioner prayed that the will be allowed, and that letters
testamentary be issued to the designated executor, Vart Prague.
The petition was opposed by Geralda Aida Castillo (Geralda Castillo), who
represented herself as the attorney-in-fact of the 12 legitimate heirs of the
decedent. Geralda Castillo claimed that the will is a forgery, and that the true
purpose of its emergence was so it could be utilized as a defense in several court
cases filed by oppositor against petitioner, particularly for forcible entry and
usurpation of real property, all centering on petitioners right to occupy the
properties of the decedent. It also asserted that contrary to the representations of
petitioner, the decedent was actually survived by 12 legitimate heirs, namely her
grandchildren, who were then residing abroad. Per records, it was subsequently
alleged that decedent was the widow of Bonifacio Igsolo, who died in 1965, and the
mother of a legitimate child, Asuncion E. Igsolo, who predeceased her mother by
three (3) months.
2

Oppositor Geralda Castillo also argued that the will was not executed and
attested to in accordance with law. She pointed out that decedents signature did not
appear on the second page of the will, and the will was not properly acknowledged.
These twin arguments are among the central matters to this petition.
After due trial, the RTC admitted the will to probate, in an Order dated 10 August
1992. The RTC favorably took into account the testimony of the three (3) witnesses
to the will, Quirino Agrava, Lamberto Leao, and Juanito Estrada. The RTC also
called to fore the modern tendency in respect to the formalities in the execution of a
will x x x with the end in view of giving the testator more freedom in expressing his
last wishes; and from this perspective, rebutted oppositors arguments that the will
was not properly executed and attested to in accordance with law.
6

After a careful examination of the will and consideration of the testimonies of the
subscribing and attesting witnesses, and having in mind the modern tendency in respect to
the formalities in the execution of a will, i.e., the liberalization of the interpretation of the
law on the formal requirements of a will with the end in view of giving the testator more
freedom in expressing his last wishes, this Court is persuaded to rule that the will in
question is authentic and had been executed by the testatrix in accordance with law.
On the issue of lack of acknowledgement, this Court has noted that at the end of the will
after the signature of the testatrix, the following statement is made under the sub-title,
Patunay Ng Mga Saksi:
Ang kasulatang ito, na binubuo ng _____ dahon pati ang huling dahong ito, na ipinahayag sa amin
ni Eugenia N. Igsolo, tagapagmana na siya niyang Huling Habilin, ngayong ika-10 ng Hunyo 1981,
ay nilagdaan ng nasabing tagapagmana sa ilalim ng kasulatang nabanggit at sa kaliwang panig ng
lahat at bawat dahon, sa harap ng lahat at bawat sa amin, at kami namang mga saksi ay lumagda
sa harap ng nasabing tagapagmana at sa harap ng lahat at bawat isa sa amin, sa ilalim ng nasabing
kasulatan at sa kaliwang panig ng lahat at bawat dahon ng kasulatan ito.

The aforequoted declaration comprises the attestation clause and the acknowledgement
and is considered by this Court as a substantial compliance with the requirements of the
law.

On the oppositors contention that the attestation clause was not signed by the
subscribing witnesses at the bottom thereof, this Court is of the view that the
signing by the subscribing witnesses on the left margin of the second page of the
will containing the attestation clause and acknowledgment, instead of at the bottom

thereof, substantially satisfies the purpose of identification and attestation of the

will.
With regard to the oppositors argument that the will was not numbered
correlatively in letters placed on upper part of each page and that the attestation
did not state the number of pages thereof, it is worthy to note that the will is
composed of only two pages. The first page contains the entire text of the
testamentary dispositions, and the second page contains the last portion of the
attestation clause and acknowledgement. Such being so, the defects are not of a
serious nature as to invalidate the will. For the same reason, the failure of the
testatrix to affix her signature on the left margin of the second page, which contains
only the last portion of the attestation clause and acknowledgment is not a fatal
defect.
As regards the oppositors assertion that the signature of the testatrix on the will
is a forgery, the testimonies of the three subscribing witnesses to the will are
convincing enough to establish the genuineness of the signature of the testatrix and
the due execution of the will.
8

The Order was appealed to the Court of Appeals by Ernesto Castillo, who had
substituted his since deceased mother-in-law, Geralda Castillo. In a Decision dated
17 August 1995, the Court of Appeals reversed the trial court and ordered the
dismissal of the petition for probate. The Court of Appeals noted that the
attestation clause failed to state the number of pages used in the will, thus
rendering the will void and undeserving of probate.
9

10

Hence, the present petition.

Petitioner argues that the requirement under Article 805 of the Civil Code that the
number of pages used in a notarial will be stated in the attestation clause is merely
directory, rather than mandatory, and thus susceptible to what he termed as the
substantial compliance rule.
11

The solution to this case calls for the application of Articles 805 and 806 of the
Civil Code, which we replicate in full.
Art. 805. Every will, other than a holographic will, must be subscribed at the end thereof by
the testator himself or by the testators name written by some other person in his presence,

and by his express direction, and attested and subscribed by three or more credible
witnesses in the presence of the testator and of one another.
The testator or the person requested by him to write his name and the instrumental
witnesses of the will, shall also sign, as aforesaid, each and every page thereof, except the
last, on the left margin, and all the pages shall be numbered correlatively in letters placed
on the upper part of each page.
The attestation shall state the number of pages used upon which the will is written, and
the fact that the testator signed the will and every page thereof, or caused some other
person to write his name, under his express direction, in the presence of the instrumental
witnesses, and that the latter witnessed and signed the will and all the pages thereof in the
presence of the testator and of one another.
If the attestation clause is in a language not known to the witnesses, it shall be
interpreted to them.
Art. 806. Every will must be acknowledged before a notary public by the testator and the
witnesses. The notary public shall not be required to retain a copy of the will, or file another
with the office of the Clerk of Court.

The appellate court, in its Decision, considered only one defect, the failure of the
attestation clause to state the number of pages of the will. But an examination of
the will itself reveals several more deficiencies.
As admitted by petitioner himself, the attestation clause fails to state the number of
pages of the will. There was an incomplete attempt to comply with this requisite, a
space having been allotted for the insertion of the number of pages in the
attestation clause. Yet the blank was never filled in; hence, the requisite was left
uncomplied with.
12

The Court of Appeals pounced on this defect in reversing the trial court, citing in
the process Uy Coque v. Navas L. Sioca and In re: Will of Andrada. In Uy Coque,
the Court noted that among the defects of the will in question was the failure of the
attestation clause to state the number of pages contained in the will. In ruling that
the will could not be admitted to probate, the Court made the following
consideration which remains highly relevant to this day: The purpose of requiring
the number of sheets to be stated in the attestation clause is obvious; the
13

14

15

document might easily be so prepared that the removal of a sheet would

completely change the testamentary dispositions of the will and in the

absence of a statement of the total number of sheets such removal might be
effected by taking out the sheet and changing the numbers at the top of

the following sheets or pages. If, on the other hand, the total number of sheets is
stated in the attestation clause the falsification of the document will involve the
inserting of new pages and the forging of the signatures of the testator and
witnesses in the margin, a matter attended with much greater difficulty.
16

The case of In re Will of Andrada concerned a will the attestation clause of which
failed to state the number of sheets or pages used. This consideration alone was
sufficient for the Court to declare unanim[ity] upon the point that the defect
pointed out in the attesting clause is fatal. It was further observed that it cannot
be denied that the x x x requirement affords additional security against the danger
that the will may be tampered with; and as the Legislature has seen fit to prescribe
this requirement, it must be considered material.
17

18

Against these cited cases, petitioner cites Singson v. Florentino and Taboada v.
Hon. Rosal, wherein the Court allowed probate to the wills concerned therein
despite the fact that the attestation clause did not state the number of pages of the
will. Yet the appellate court itself considered the import of these two cases, and
made the following distinction which petitioner is unable to rebut, and which we
adopt with approval:
19

20

Even a cursory examination of the Will (Exhibit D), will readily show that the attestation
does not state the number of pages used upon which the will is written. Hence, the Will is
void and undeserving of probate.
We are not impervious of the Decisions of the Supreme Court in Manuel Singson versus
Emilia Florentino, et al., 92 Phil. 161and Apolonio [Taboada] versus Hon. Avelino Rosal, et
al., 118 SCRA 195, to the effect that a will may still be valid even if the attestation does not
contain the number of pages used upon which the Will is written. However, the Decisions of
the Supreme Court are not applicable in the aforementioned appeal at bench. This is so
because, in the case of Manuel Singson versus Emilia Florentino, et al., supra, although
the attestation in the subject Will did not state the number of pages used in the will,
however, the same was found in the last part of the body of the Will:
x x x

The law referred to is article 618 of the Code of Civil Procedure, as amended by Act No. 2645,
which requires that the attestation clause shall state the number of pages or sheets upon which the
will is written, which requirement has been held to be mandatory as an effective safeguard against
the possibility of interpolation or omission of some of the pages of the will to the prejudice of the
heirs to whom the property is intended to be bequeathed (In re Will of Andrada, 42 Phil. 180; Uy
Coque vs. Navas L. Sioca, 43 Phil. 405;Gumban vs. Gorcho, 50 Phil. 30; Quinto vs. Morata, 54 Phil.
481;Echevarria vs. Sarmiento, 66 Phil. 611). The ratio decidendi of these cases seems to be that the
attestation clause must contain a statement of the number of sheets or pages composing the will and
that if this is missing or is omitted, it will have the effect of invalidating the will if the deficiency
cannot be supplied, not by evidence aliunde, but by a consideration or examination of the will itself.
But here the situation is different. While the attestation clause does not state the number of sheets
or pages upon which the will is written, however, the last part of the body of the will contains a
statement that it is composed of eight pages, which circumstance in our opinion takes this case out of
the rigid rule of construction and places it within the realm of similar cases where a broad and more
liberal view has been adopted to prevent the will of the testator from being defeated by purely technical
considerations. (page 165-165, supra) (Italics supplied)

In Apolonio Tabaoda versus Hon. Avelino Rosal, et al. supra, the notarial
acknowledgement in the Will states the number of pages used in the:
x x x
We have examined the will in question and noticed that the attestation clause failed to state the
number of pages used in writing the will. This would have been a fatal defect were it not for the fact
that, in this case, it is discernible from the entire will that it is really and actually composed of only
two pages duly signed by the testatrix and her instrumental witnesses. As earlier stated, the first
page which contains the entirety of the testamentary dispositions is signed by the testatrix at the
end or at the bottom while the instrumental witnesses signed at the left margin. The other page
which is marked as Pagina dos comprises the attestation clause and the acknowledgment. The
acknowledgment itself states that this Last Will and Testament consists of two pages including this
page (pages 200-201, supra) (Italics supplied).

However, in the appeal at bench, the number of pages used in the will is not stated in
any part of the Will. The will does not even contain any notarial acknowledgment wherein
the number of pages of the will should be stated.
21

Both Uy Coque and Andrada were decided prior to the enactment of the Civil Code
in 1950, at a time when the statutory provision governing the formal requirement of
wills was Section 618 of the Code of Civil Procedure. Reliance on these cases
remains apropos, considering that the requirement that the attestation state the
number of pages of the will is extant from Section 618. However, the enactment of
the Civil Code in 1950 did put in force a rule of interpretation of the requirements of
22

23

wills, at least insofar as the attestation clause is concerned, that may vary from the
philosophy that governed these two cases. Article 809 of the Civil Code states: In
the absence of bad faith, forgery, or fraud, or undue and improper pressure and
influence, defects and imperfections in the form of attestation or in the language
used therein shall not render the will invalid if it is proved that the will was in fact
executed and attested in substantial compliance with all the requirements of article
805.
In the same vein, petitioner cites the report of the Civil Code Commission, which
stated that the underlying and fundamental objective permeating the provisions on
the [law] on [wills] in this project consists in the [liberalization] of the manner of
their execution with the end in view of giving the testator more [freedom] in
[expressing] his last wishes. This objective is in accord with the [modern tendency]
in respect to the formalities in the execution of wills. However, petitioner
conveniently omits the qualification offered by the Code Commission in the very
same paragraph he cites from their report, that such liberalization be but with
sufficient safeguards and restrictions to prevent the commission of fraud and the
exercise of undue and improper pressure and influence upon the testator.
24

25

Caneda v. Court of Appeals features an extensive discussion made by Justice

Regalado, speaking for the Court on the conflicting views on the manner of
interpretation of the legal formalities required in the execution of the attestation
clause in wills. Uy Coque andAndrada are cited therein, along with several other
cases, as examples of the application of the rule of strict construction. However, the
Code Commission opted to recommend a more liberal construction through the
substantial compliance rule under Article 809. A cautionary note was struck
though by Justice J.B.L. Reyes as to how Article 809 should be applied:
26

27

28

x x x The rule must be limited to disregarding those defects that can be supplied by an
examination of the will itself: whether all the pages are consecutively numbered; whether
the signatures appear in each and every page; whether the subscribing witnesses are three
or the will was notarized. All these are facts that the will itself can reveal, and defects or
even omissions concerning them in the attestation clause can be safely disregarded. But
the total number of pages, and whether all persons required to sign did so in the
presence of each other must substantially appear in the attestation clause, being
the only check against perjury in the probate proceedings. (Emphasis supplied.)
29

The Court of Appeals did cite these comments by Justice J.B.L. Reyes in its assailed
decision, considering that the failure to state the number of pages of the will in the
attestation clause is one of the defects which cannot be simply disregarded.
In Caneda itself, the Court refused to allow the probate of a will whose attestation
clause failed to state that the witnesses subscribed their respective signatures to
the will in the presence of the testator and of each other, the other omission cited by
Justice J.B.L. Reyes which to his estimation cannot be lightly disregarded.
30

Caneda suggested: [I]t may thus be stated that the rule, as it now stands, is that
omission which can be supplied by an examination of the will itself, without the
need of resorting to extrinsic evidence, will not be fatal and, correspondingly, would
not obstruct the allowance to probate of the will being assailed. However, those
omissions which cannot be supplied except by evidencealiunde would result in the
invalidation of the attestation clause and ultimately, of the will itself. Thus, a
failure by the attestation clause to state that the testator signed every page can be
liberally construed, since that fact can be checked by a visual examination; while a
failure by the attestation clause to state that the witnesses signed in one anothers
presence should be considered a fatal flaw since the attestation is the only textual
guarantee of compliance.
31

32

The failure of the attestation clause to state the number of pages on which the
will was written remains a fatal flaw, despite Article 809. The purpose of the law in
requiring the clause to state the number of pages on which the will is written is to
safeguard against possible interpolation or omission of one or some of its pages and
to prevent any increase or decrease in the pages. The failure to state the number of
pages equates with the absence of an averment on the part of the instrumental
witnesses as to how many pages consisted the will, the execution of which they had
ostensibly just witnessed and subscribed to. Following Caneda, there is substantial
compliance with this requirement if the will states elsewhere in it how many pages
it is comprised of, as was the situation in Singson and Taboada. However, in this
case, there could have been no substantial compliance with the requirements under
Article 805 since there is no statement in the attestation clause or anywhere in the
will itself as to the number of pages which comprise the will.
33

At the same time, Article 809 should not deviate from the need to comply with
the formal requirements as enumerated under Article 805. Whatever the
inclinations of the members of the Code Commission in incorporating Article 805,

the fact remains that they saw fit to prescribe substantially the same formal
requisites as enumerated in Section 618 of the Code of Civil Procedure, convinced
that these remained effective safeguards against the forgery or intercalation of
notarial wills. Compliance with these requirements, however picayune in
impression, affords the public a high degree of comfort that the testator himself or
herself had decided to convey property post mortem in the manner established in the
will. The transcendent legislative intent, even as expressed in the cited
34

35

comments of the Code Commission, is for the fruition of the testators

incontestable desires, and not for the indulgent admission of wills to

probate.
The Court could thus end here and affirm the Court of Appeals. However, an
examination of the will itself reveals a couple of even more critical defects that
should necessarily lead to its rejection.
For one, the attestation clause was not signed by the instrumental
witnesses. While the signatures of the instrumental witnesses appear on the lefthand margin of the will, they do not appear at the bottom of the attestation clause
which after all consists of their averments before the notary public.
Cagro v. Cagro is material on this point. As in this case, the signatures of the
three witnesses to the will do not appear at the bottom of the attestation clause,
although the page containing the same is signed by the witnesses on the left-hand
margin. While three (3) Justices considered the signature requirement had been
substantially complied with, a majority of six (6), speaking through Chief Justice
Paras, ruled that the attestation clause had not been duly signed, rendering the will
fatally defective.
36

37

38

There is no question that the signatures of the three witnesses to the will do not appear at
the bottom of the attestation clause, although the page containing the same is signed by the
witnesses on the left-hand margin.
We are of the opinion that the position taken by the appellant is correct. The attestation
clause is a memorandum of the facts attending the execution of the will required by law to
be made by the attesting witnesses, and it must necessarily bear their signatures. An
unsigned attestation clause cannot be considered as an act of the witnesses, since the
omission of their signatures at the bottom thereof negatives their participation.

The petitioner and appellee contends that signatures of the three witnesses on the lefthand margin conform substantially to the law and may be deemed as their signatures to the
attestation clause. This is untenable, because said signatures are in compliance with the
legal mandate that the will be signed on the left-hand margin of all its pages. If an
attestation clause not signed by the three witnesses at the bottom thereof, be admitted as
sufficient, it would be easy to add such clause to a will on a subsequent occasion and in the
absence of the testator and any or all of the witnesses.
39

The Court today reiterates the continued efficacy of Cagro. Article 805 particularly
segregates the requirement that the instrumental witnesses sign each page of the
will, from the requisite that the will be attested and subscribed by [the
instrumental witnesses]. The respective intents behind these two classes of
signature are distinct from each other. The signatures on the left-hand corner of
every page signify, among others, that the witnesses are aware that the page they
are signing forms part of the will. On the other hand, the signatures to the
attestation clause establish that the witnesses are referring to the statements
contained in the attestation clause itself. Indeed, the attestation clause is separate
and apart from the disposition of the will. An unsigned attestation clause results in
an unattested will. Even if the instrumental witnesses signed the left-hand margin
of the page containing the unsigned attestation clause, such signatures cannot
demonstrate these witnesses undertakings in the clause, since the signatures that
do appear on the page were directed towards a wholly different avowal.
The Court may be more charitably disposed had the witnesses in this case signed
the attestation clause itself, but not the left-hand margin of the page containing
such clause. Without diminishing the value of the instrumental witnesses
signatures on each and every page, the fact must be noted that it is the attestation
clause which contains the utterances reduced into writing of the testamentary
witnesses themselves. It is the witnesses, and not the testator, who are required
under Article 805 to state the number of pages used upon which the will is written;
the fact that the testator had signed the will and every page thereof; and that they
witnessed and signed the will and all the pages thereof in the presence of the
testator and of one another. The only proof in the will that the witnesses have stated
these elemental facts would be their signatures on the attestation clause.
Thus, the subject will cannot be considered to have been validly attested to by the
instrumental witnesses, as they failed to sign the attestation clause.

Yet, there is another fatal defect to the will on which the denial of this petition
should also hinge. The requirement under Article 806 that every will must be
acknowledged before a notary public by the testator and the witnesses has also not
been complied with. The importance of this requirement is highlighted by the fact
that it had been segregated from the other requirements under Article 805 and
entrusted into a separate provision, Article 806. The non-observance of Article 806
in this case is equally as critical as the other cited flaws in compliance with Article
805, and should be treated as of equivalent import.
In lieu of an acknowledgment, the notary public, Petronio Y. Bautista, wrote
Nilagdaan ko at ninotario ko ngayong 10 ng Hunyo 10 (sic), 1981 dito sa Lungsod
ng Maynila. By no manner of contemplation can those words be construed as an
acknowledgment. An acknowledgment is the act of one who has executed a deed in
going before some competent officer or court and declaring it to be his act or deed. It
involves an extra step undertaken whereby the signor actually declares to the
notary that the executor of a document has attested to the notary that the same is
his/her own free act and deed.
40

41

It might be possible to construe the averment as a jurat, even though it does not
hew to the usual language thereof. A jurat is that part of an affidavit where the
notary certifies that before him/her, the document was subscribed and sworn to by
the executor. Ordinarily, the language of the jurat should avow that the document
was subscribed and sworn before the notary public, while in this case, the notary
public averred that he himself signed and notarized the document. Possibly
though, the word ninotario or notarized encompasses the signing of and
swearing in of the executors of the document, which in this case would involve the
decedent and the instrumental witnesses.
42

Yet even if we consider what was affixed by the notary public as a jurat, the will
would nonetheless remain invalid, as the express requirement of Article 806 is that
the will be acknowledged, and not merely subscribed and sworn to. The will does
not present any textual proof, much less one under oath, that the decedent and the
instrumental witnesses executed or signed the will as their own free act or deed.
The acknowledgment made in a will provides for another all-important legal
safeguard against spurious wills or those made beyond the free consent of the
testator. An acknowledgement is not an empty meaningless act. The
acknowledgment coerces the testator and the instrumental witnesses to declare
43

before an officer of the law that they had executed and subscribed to the will as their
own free act or deed. Such declaration is under oath and under pain of perjury, thus
allowing for the criminal prosecution of persons who participate in the execution of
spurious wills, or those executed without the free consent of the testator. It also
provides a further degree of assurance that the testator is of certain mindset in
making the testamentary dispositions to those persons he/she had designated in the
will.
It may not have been said before, but we can assert the rule, self-evident as it is
under Article 806. A notarial will that is not acknowledged before a notary
public by the testator and the witnesses is fatally defective, even if it is
subscribed and sworn to before a notary public.

There are two other requirements under Article 805 which were not fully
satisfied by the will in question. We need not discuss them at length, as they are no
longer material to the disposition of this case. The provision requires that the
testator and the instrumental witnesses sign each and every page of the will on the
left margin, except the last; and that all the pages shall be numbered correlatively
in letters placed on the upper part of each page. In this case, the decedent, unlike
the witnesses, failed to sign both pages of the will on the left margin, her only
signature appearing at the so-called logical end of the will on its first page. Also,
the will itself is not numbered correlatively in letters on each page, but instead
numbered with Arabic numerals. There is a line of thought that has disabused the
notion that these two requirements be construed as mandatory. Taken in isolation,
these omissions, by themselves, may not be sufficient to deny probate to a will. Yet
even as these omissions are not decisive to the adjudication of this case, they need
not be dwelt on, though indicative as they may be of a general lack of due regard for
the requirements under Article 805 by whoever executed the will. All told, the string
of mortal defects which the will in question suffers from makes the probate denial
inexorable.
44

45

WHEREFORE, the petition is DENIED. Costs against petitioner.

SO ORDERED.
Quisumbing (Chairperson), Carpio and Carpio-Morales, JJ., concur.

Petition denied.
o0o

No.L-32213. November 26, 1973.

AGAPITA N. CRUZ, petitioner, vs. HON. JUDGE GUILLERMO P. VILLASOR,

Presiding Judge of Branch I, Court of First Instance of Cebu, and MANUEL B.
LUGAY, respondents.
Succession; Wills; Formal requirements; Acknowledging officer cannot serve as witness
at the same time.The notary public before whom the will was acknowledged cannot be
considered as the third instrumental witness since he cannot acknowledge before himself
his having signed the will. To acknowledge before means to avow; to own as genuine, to
assent, to admit, and before means in front or preceding in space or ahead of.
Consequently, if the third witness were the notary public himself, he would have to avow,
assent or admit his having signed the will in front of himself. This cannot be done because
he cannot split his personality into two so that one will appear before the other to
acknowledge his participation in the making of the will.
Notary public; Function of office of notary public.The function of a notary public is,
among others, to guard against any illegal or immoral arrangements. That function would
be defeated if the notary public were one of the attesting witnesses. For then he would be
interested in sustaining the validity of the will as it directly involves himself and the
validity of his own act. It would place him in an inconsistent position and the very purpose
of the acknowledgment, which is to minimize fraud would be thwarted.

PETITION for review by certiorari of a judgment of the Court of First Instance of

Cebu.
The facts are stated in the opinion of the Court.

Paul G. Gorrez for petitioner.

Mario D. Ortiz for respondent Manuel B. Lugay.
ESGUERRA, J.:
Petition to review on certiorari the judgment of the Court of First Instance of Cebu
allowing the probate of the last will and testament of the late Valente Z. Cruz.
Petitioner-appellant Agapita N. Cruz, the surviving spouse of the said deceased,
opposed the allowance of the will (Exhibit E),alleging that the will was executed
through fraud, deceit, misrepresentation and undue influence; that the said
instrument was executed without the testator having been fully informed of the
contents thereof, particularly as to what properties he was disposing; and that the
supposed last will and testament was not executed in accordance with law.
Notwithstanding her objection, the Court allowed the probate of the said last will
and testament. Hence this appeal by certiorari which was given due course.
The only question presented for determination, on which the decision of the case
hinges, is whether the supposed last will and testament of Valente Z. Cruz (Exhibit
E) was executed in accordance with law, particularly Articles 805 and 806 of the
new Civil Code, the first requiring at least three credible witnesses to attest and
subscribe to the will, and the second requiring the testator and the witnesses to
acknowledge the will before a notary public.
Of the three instrumental witnesses thereto, namely, Deogracias T. Jamaoas, Jr.,
Dr. Francisco Paares, and Atty. Angel H. Teves, Jr., one of them, the last named, is
at the same time the Notary Public before whom the will was supposed to have been
acknowledged. Reduced to simpler terms, the question was attested and subscribed
by at least three credible witnesses in the presence of the testator and of each other,
considering that the three attesting witnesses must appear before the notary public
to acknowledge the same. As the third witness is the notary public himself,
petitioner argues that the result is that only two witnesses appeared before the
notary public to acknowledge the will. On the other hand, private respondent-

appellee, Manuel B. Lugay, who is the supposed executor of the will, following the
reasoning of the trial court, maintains that there is substantial compliance with the
legal requirement of having at least three attesting witnesses even if the notary
public acted as one of them, bolstering up his stand with 57 American
Jurisprudence, p. 227 which, insofar as pertinent, reads as follows:
It is said that there are practical reasons for upholding a will as against the purely
technical reason that one of the witnesses required by law signed as certifying to an
acknowledgment of the testators signature under oath rather than as attesting the
execution of the instrument.

After weighing the merits of the conflicting claims of the parties, We are inclined to
sustain that of the appellant that the last will and testament in question was not
executed in accordance with law. The notary public before whom the will was
acknowledged cannot be considered as the third instrumental witness since he
cannot acknowledge before himself his having signed the will. To acknowledge
before means to avow (Javellana v. Ledesma,97 Phil. 258, 262; Castro v. Castro, 100
Phil. 239, 247); to own as genuine, to assent, to admit; and before means in front
or preceding in space or ahead of. (The New Webster Encyclopedic Dictionary of the
English Language, p. 72;Funk & Wagnalls New Standard Dictionary of the English
Language, p. 252; Websters New International Dictionary2d. p. 245.) Consequently,
if the third witness were the notary public himself, he would have to avow, assent, or
admit his having signed the will in front of himself. This cannot be done because he
cannot split his personality into two so that one will appear before the other to
acknowledge his participation in the making of the will. To permit such a situation
to obtain would be sanctioning a sheer absurdity.
Furthermore, the function of a notary public is, among others, to guard against
any illegal or immoral arrangements. Balinon v. De Leon, 50 O. G. 583.) That
function would be defeated if the notary public were one of the attesting or
instrumental witnesses. For them he would be interested in sustaining the validity
of the will as it directly involves himself and the validity of his own act. It would
place him in an inconsistent position and the very purpose of the acknowledgment,

which is to minimize fraud (Report of the Code Commission p. 106-107), would be

thwarted.
Admittedly, there are American precedents holding that a notary public may, in
addition, act as a witness to the execution of the document he has notarized.
(Mahilum v. Court of Appeals, 64 O. G. 4017; 17 SCRA 482; Sawyer v. Cox, 43 Ill.
130). There are others holding that his signing merely as a notary in a will
nonetheless makes him a witness thereunder (Ferguson v. Ferguson, 47 S. E. 2d.
346; In Re Douglas Will, 83 N. Y. S. 2d. 641; Ragsdal v. Hill, 269 S. W. 2d.
911, Tyson v. Utterback, 122 So. 496; In Re Baybees Estate 160 N. W. 900; Merill v.
Boal, 132 A. 721; See also Trenwith v. Smallwood, 15 So. 1030). But these
authorities do not serve the purpose of the law in this jurisdiction or are not decisive
of the issue herein, because the notaries public and witnesses referred to in the
aforecited cases merely acted as instrumental, subscribing or attesting witnesses,
and not as acknowledgingwitnesses. Here the notary public acted not only as
attesting witness but also as acknowledging witness, a situation not envisaged by
Article 805 of the Civil Code which reads:
ART. 806. Every will must be acknowledged before a notary public by the testator and the
witnesses. The notary public shall not be required to retain a copy of the will or file another
with the office of the Clerk of Court. [Underscoring supplied]

To allow the notary public to act as third witness, or one of the attesting and
acknowledging witnesses, would have the effect of having only two attesting
witnesses to the will which would be in contravention of the provisions of Article 805
requiring at least three credible witnesses to act as such and of Article 806 which
requires that the testator and the required number of witnesses must appear before
the notary public to acknowledge the will. The result would be, as has been said,
that only two witnesses appeared before the notary public for that purpose. In the
circumstances, the law would not be duly observed.

FOR ALL THE FOREGOING, the judgment appealed from is hereby reversed
and the probate of the last will and testament of Valente Z. Cruz (Exhibit E) is
declared not valid and hereby set aside.
Cost against the appellee.
Makalintal,

C.

J., Castro, Teehankee, Makasiar andMuoz

Palma,

JJ.,

concur.
Judgment reversed.
Notes.Acknowledgment of Will Before Notary Public.The requirement of Arts.
805 and 806 of the new Civil Code that every will be acknowledged before a notary
public by the testator and the witnesses, and that the latter must avow to the
certifying officer the authenticity of their signatures, etc., is sufficiently complied
with where the avowal is duly made at the time of execution of the will, and it is
immaterial that the notarys signing and sealing of the certification is done later, at
his own office. Re Estate of Ledesma, L-7179, June 30, 1955.
The requirement of Art. 806 of the new Civil Code that a will be acknowledged
before a notary means only that it must be assented to, avowed, or admitted before
such officer. It does not require raising of the right hand or any particular ceremony,
if the testators signature is affixed in the notarys presence. De Castro vs. De
Castro, L-8996, October 31, 1956.
o0o

No. L-7179. June 30, 1955]

Testate Estate of the Late Apolinaria Ledesma. FELICIDAD JAVELLANA,
petitioner and appellee, vs.DOA MATEA LEDESMA, oppositor and appellant.
WILLS; ACKNOWLEDGMENT; CERTIFICATION OF NOTARY THAT TESTAMENT
WAS DULY ACKNOWLEDGED IS NOT PART OF ACKNOWLEDGMENT OR

TESTAMENTARY ACT.The subsequent signing and sealing by the notary of his

certification that the testament was duly acknowledged by the participants therein is no
part of the acknowledgment itself nor of the testamentary act. Hence their separate
execution out of the presence of the testatrix and her witnesses can not be said to violate
the rule that testaments should be completed without interruption (Andalis vs. Pulgueras,
59 Phil., 643), or, as the Roman maxim puts it, "uno eodem die ac tempore in eodem loco".

APPEAL from a judgment of the Court of First Instance of Iloilo. Makalintal, J.

The facts are stated in the opinion of the Court.
Fulgencio Vega and Felix D. Bacabac for appellant.
Benjamin H. Tirot for appellee.
REYES, J. B. L., J.:
By order of July 23, 1953, the Court of First Instance of Iloilo admitted to probate
the documents in the Visayan dialect, marked Exhibits D and E, as the testament
and codicil duly executed by the deceased Da. Apolinaria Ledesma Vda. de
Javellana, on March 30, 1950, and May 29, 1952, respectively, with Ramon Tabiana,
Gloria Montinola de Tabiana and Vicente Yap as witnesses. The contestant, Da.
Matea Ledesma, sister and nearest surviving relative of said deceased, appealed
from the decision, insisting that the said exhibits were not executed in conformity
with law. The appeal was made directly to this Court because the value of the
properties involved exceeded two hundred thousand pesos.
Originally the opposition to the probate also charged that the testatrix lacked
testamentary capacity and that the dispositions were procured through undue
influence. These grounds were abandoned at the hearing in the court below, where
the issue was concentrated into three specific questions: (1) whether the testament
of 1950 was executed by the testatrix in the presence of the instrumental witnesses;
(2) whether the acknowledgment clause was signed and the notarial seal affixed by
the notary without the presence of the testatrix and the witnesses; and (3) if so,
whether the codicil was thereby rendered invalid and ineffective. These questions
are the same ones presented to us for resolution.

The contestant argues that the Court below erred in refusing credence to her
witnesses Maria Paderogao and Vidal Allado, cook and driver, respectively, of the
deceased Apolinaria Ledesma. Both testified that on March 30, 1950, they saw and
heard Vicente Yap (one of the witnesses to the will) inform the deceased that he had
brought the "testamento" and urge her to go to attorney Tabiana's office to sign it;
that Da. Apolinaria manifested that she could not go, because she was not feeling
well; and that upon Yap's insistence that the will had to be signed in the attorney's
office and not elsewhere, the deceased took the paper and signed it in the presence
of Yap alone, and returned it with the statement that no one would question it
because the property involved was exclusively hers.
Our examination of the testimony on record discloses no grounds for reversing
the trial Court's rejection of the improbable story of these witnesses. It is squarely
contradicted by the concordant testimony of the instrumental witnesses, Vicente
Yap, Atty, Ramn C. Tabiana, and his wife Gloria Montinola, who asserted under
oath that the testament was executed by testatrix and witnesses in the presence of
each other, at the house of the decedent on General Hughes St, Iloilo City, on March
30, 1950. And it is highly unlikely, and contrary to usage, that either Tabiana or Yap
should have insisted that Da. Apolinaria, an infirm lady then over 80 years old,
should leave her own house in order to execute her will, when all three witnesses
could have easily repaired thither for the purpose. Moreover, the cross-examination
has revealed fatal flaws in the testimony of Contestant's witnesses. Both claim to
have heard the word "testamento'' for the first time when Yap used it; and yet they
claimed ability to recall that word four years later, despite the fact that the term
meant nothing to either. It is well known that what is to be remembered must first
be rationally conceived and assimilated (II Moore on Facts, p. 884). Likewise, Maria
Paderogao was positive that Yap brought the will, and that the deceased alone
signed it precisely on March 30, 1950; but she could remember no other date, nor
give satisfactory explanation why that particular day stuck in her mind. Worse still,
Allado claimed to have heard what allegedly transpired between Yap and Da.
Apolinaria from the kitchen of the house, that was later proved to have been
separated from the deceased's quarters, and standing at a much lower level, so that
conversations in the main building could not be distinctly heard from the kitchen.
Later, on redirect examination, Allado sought to cure his testimony by claiming that
he was upstairs in a room where the servants used to eat when he heard Yap
converse with his mistress; but this correction is unavailing, since it was plainly
induced by two highly leading questions from contestant's counsel that had been

previously ruled out by the trial Court. Besides, the contradiction is hardly
consonant with this witness' 18 years of service to the deceased.
Upon the other hand, the discrepancies in the testimony of the instrumental
witnesses urged upon us by the contestant-appellant, concerning the presence or
absence of Aurelio Montinola at the signing of the testament or of the codicil and
the identity of the person who inserted the date therein, are not material and are
largely imaginary, since the witness Mrs. Tabiana confessed inability to remember
all the details of the transaction. Neither are we impressed by the argument that
the use of some Spanish terms in the codicil and testament (like legado, partes
iguales, plena, proiedad) is proof that its contents were not understood by the
testatrix, it appearing in evidence that those terms are of common use even in the
vernacular, and that the deceased was a woman of wide business interests.
The most important variation noted by the contestants concerns that signing of
the certificate of acknowledgment (in Spanish) appended to the Codicil in Visayan,
Exhibit E. Unlike the testament, this codicil was executed after the enactment of
the new Civil Code,, and, therefore, had to be acknowledged before a notary public
(Art. 806). Now, the instrumental witnesses (who happen to be the same ones who
attested the will of 1950) asserted that after the codicil had been signed by the
testratrix and the witnesses at San Pablo Hospital, the same was signed and sealed
by notary public Gimotea on the same occasion. On the other hand, Gimotea
afirmed that he did not do so, but brought the codicil to his office, and signed and
sealed it there. The variance does not necessarily imply conscious perversion of
truth on the part of the witnesses, but appears rather due to a well-established
phenomenon, the tendency of the mind, in recalling past events, to substitute the
usual and habitual for what differs slightly from it (II Moore on Facts, p. 878; The
Ellen McGovern, 27 Fed. 868, 870).
At any rate, as observed by the Court below, whether or not the notary signed the
certification of acknowledgment in the presence of the testatrix and the witnesses,
does not affect the validity of the codicil. Unlike the Code of 1889 (Art. 699), the new
Civil Code does not require that the signing of the testator, witnesses and notary
should be accomplished in one single act. A comparison of Articles 805 and 806 of
the new Civil Code reveals that while testator and witnesses must sign in the
presence of each other, all that is thereafter required is that "every will must be
acknowledged before a notary public by the testator and the witnesses" (Art. 806) ;

i.e., that the latter should avow to the certifying officer the authenticity of their
signatures and the voluntariness of their actions in executing the testamentary
disposition. This was done in the case before us. The subsequent signing and sealing
by the notary of his certification that the testament was duly acknowledged by the
participants therein is no part of the acknowledgment itself nor of the testamentary
act. Hence their separate execution out of the presence of the testatrix and her
witnesses can not be said to violate the rule that testaments should be completed
without interruption (Andalis vs. Pulgueras, 59 Phil. 643), or, as the Roman maxim
puts it, "uno eodem die ac tempore in eadem loco",and no reversible error was
committed by the Court in so holding. It is noteworthy that Article 806 of the new
Civil Code does not contain words requiring that the testator and the witnesses
should acknowledge the testament on the same day or occasion that it was executed.
The decision admitting the will to probate is affirmed, with costs against
appellant.
Bengzon,
Acting
C.
J., Padilla, Montemayor, Reyes,
Angelo, Labrador, and Concepcion, JJ.,concur.

A.,Jugo, Bautista

Judgment affirmed.

G.R. No. 157451. December 16, 2005.

LETICIA VALMONTE
respondent.

ORTEGA,

petitioner, vs.JOSEFINA

C.

VALMONTE,

Civil Law; Wills; The party challenging the will bears the burden of proving the
existence of fraud at the time of its execution; The burden to show otherwise shifts to the
proponent of the will only upon a showing of credible evidence of fraud.Fraud is a trick,
secret device, false statement, or pretense, by which the subject of it is cheated. It may be of
such character that the testator is misled or deceived as to the nature or contents of the
document which he executes, or it may relate to some extrinsic fact, in consequence of the
deception regarding which the testator is led to make a certain will which, but for the fraud,

he would not have made. We stress that the party challenging the will bears the burden of
proving the existence of fraud at the time of its execution. The burden to show otherwise
shifts to the proponent of the will only upon a showing of credible evidence of fraud.
Unfortunately in this case, other than the self-serving allegations of petitioner, no evidence
of fraud was ever presented.
Same; Same; The omission of some relatives does not affect the due execution of a will.
It is a settled doctrine that the omission of some relatives does not affect the due execution
of a will. That the testator was tricked into signing it was not sufficiently established by the
fact that he had instituted his wife, who was more than fifty years his junior, as the sole
beneficiary; and disregarded petitioner and her family, who were the ones who had taken
the cudgels of taking care of [the testator] in his twilight years.
Same; Same; The conflict between the dates appearing on the will does not invalidate
the document because the law does not even require that a notarial will be executed and
acknowledged on the same occasion.As correctly ruled by the appellate court, the conflict
between the dates appearing on the will does not invalidate the document, because the law
does not even require that a [notarial] will x x x be executed and acknowledged on the same
occasion. More important, the will must be subscribed by the testator, as well as by three or
more credible witnesses who must also attest to it in the presence of the testator and of one
another. Furthermore, the testator and the witnesses must acknowledge the will before a
notary public. In any event, we agree with the CA that the variance in the dates of the will
as to its supposed execution and attestation was satisfactorily and persuasively explained
by the notary public and the instrumental witnesses.
Same; Same; The testimonies of the three subscribing witnesses and the notary are
credible evidence of its due execution.Petitioner failed to substantiate her claim of a
grand conspiracy in the commission of a fraud. There was no showing that the witnesses
of the proponent stood to receive any benefit from the allowance of the will. The testimonies
of the three subscribing witnesses and the notary are credible evidence of its due execution.
Their testimony favoring it and the finding that it was executed in accordance with the
formalities required by law should be affirmed, absent any showing of ill motives.
Same; Same; To be considered of sound mind, things that the testator must have the
ability to know.According to Article 799, the three things that the testator must have the
ability to know to be considered of sound mind are as follows: (1) the nature of the estate to
be disposed of, (2) the proper objects of the testators bounty, and (3) the character of the
testamentary act. Applying this test to the present case, we find that the appellate court
was correct in holding that Placido had testamentary capacity at the time of the execution
of his will.

Same; Same; Testamentary incapacity does not necessarily require that a person shall
actually be insane or of unsound mind.Between the highest degree of soundness of mind
and memory which unquestionably carries with it full testamentary capacity, and that
degrees of mental aberration generally known as insanity or idiocy, there are numberless
degrees of mental capacity or incapacity and while on one hand it has been held that mere
weakness of mind, or partial imbecility from disease of body, or from age, will not render a
person incapable of making a will; a weak or feebleminded person may make a valid will,
provided he has understanding and memory sufficient to enable him to know what he is
about to do and how or to whom he is disposing of his property. To constitute a sound and
disposing mind, it is not necessary that the mind be unbroken or unimpaired or
unshattered by disease or otherwise. It has been held that testamentary incapacity does not
necessarily require that a person shall actually be insane or of unsound mind.

PETITION for review on certiorari of the decision and resolution of the Court of
Appeals.
The facts are stated in the opinion of the Court.
Manuel T. De Guia for petitioner.
Benigno Pulmano for respondent.
PANGANIBAN, J.:
The law favors the probate of a will. Upon those who oppose it rests the burden of
showing why it should not be allowed. In the present case, petitioner has failed to
discharge this burden satisfactorily. For this reason, the Court cannot attribute any
reversible error on the part of the appellate tribunal that allowed the probate of the
will.
The Case
Before the Court is a Petition for Review under Rule 45 of the Rules of Court,
seeking to reverse and set aside the December 12, 2002 Decision and the March 7,
2003 Resolution of the Court of Appeals (CA) in CA-G.R. CV No. 44296. The
assailed Decision disposed as follows:
1

WHEREFORE, the appeal is GRANTED, and the Decision appealed from is REVERSED
and SET ASIDE. In its place judgment is rendered approving and allowing probate to the

said last will and testament of Placido Valmonte and ordering the issuance of letters
testamentary to the petitioner Josefina Valmonte. Let this case be remanded to the court a
quo for further and concomitant proceedings.
4

The assailed Resolution denied petitioners Motion for Reconsideration.

The Facts
The facts were summarized in the assailed Decision of the CA, as follows:
x x x: Like so many others before him, Placido toiled and lived for a long time in the United
States until he finally reached retirement. In 1980, Placido finally came home to stay in the
Philippines, and he lived in the house and lot located at #9200 Catmon St., San Antonio
Village, Makati, which he owned in common with his sister Ciriaca Valmonte and titled in
their names in TCT 123468. Two years after his arrival from the United States and at the
age of 80 he wed Josefina who was then 28 years old, in a ceremony solemnized by Judge
Perfecto Laguio, Jr. on February 5, 1982. But in a little more than two years of wedded
bliss, Placido died on October 8, 1984 of a cause written down as COR PULMONALE.
Placido executed a notarial last will and testament written in English and consisting of
two (2) pages, and dated June 15, 1983 but acknowledged only on August 9, 1983. The first
page contains the entire testamentary dispositions and a part of the attestation clause, and
was signed at the end or bottom of that page by the testator and on the left hand margin by
the three instrumental witnesses. The second page contains the continuation of the
attestation clause and the acknowledgment, and was signed by the witnesses at the end of
the attestation clause and again on the left hand margin. It provides in the body that:
LAST WILL AND TESTAMENT OF PLACIDO VALMONTE IN THE NAME OF THE LORD
AMEN:
I, PLACIDO VALMONTE, of legal age, married to Josefina Cabansag Valmonte, and a resident
of 9200 Catmon Street, Makati, Metro Manila, 83 years of age and being ofsound and disposing mind
and memory, do hereby declare thisto be my last will and testament:
1. 1.It is my will that I be buried in the Catholic Cemetery, under the auspices of the Catholic
Church in accordance with the rites and said Church and that a suitable monument to be
erected and provided my by executrix (wife) to perpetuate my memory in the minds of my
family and friends;
2. 2.I give, devise and bequeath unto my loving wife, JOSEFINA C. VALMONTE, one half (1/2)
portion of the follow-described properties, which belongs to me as [co-owner]:

1. a.Lot 4-A, Block 13 described on plan Psd-28575, LRC, (GLRO), situated in Makati, Metro
Manila, described and covered by TCT No. 123468 of the Register of Deeds of Pasig, MetroManila registered jointly as co-owners with my deceased sister (Ciriaca Valmonte), having
share and share alike;
2. b.2-storey building standing on the above-described property, made of strong and mixed
materials used as my residence and my wife and located at No. 9200 Catmon Street,
Makati, Metro Manila also covered by Tax Declaration No. A-025-00482, Makati, MetroManila, jointly in the name of my deceased sister, Ciriaca Valmonte and myself as coowners, share and share alike or equal co-owners thereof;
1. 3.All the rest, residue and remainder of my real and personal properties, including my
savings account bank book in USA which is in the possession of my nephew, and all others
whatsoever and wherever found, I give, devise and bequeath to my said wife, Josefina C.
Valmonte;
2. 4.I hereby appoint my wife, Josefina C. Valmonte as sole executrix of my last will and
testament, and it is my will that said executrix be exempt from filing a bond;
IN WITNESS WHEREOF, I have hereunto set my hand this 15th day of June 1983 in Quezon City,
Philippines.

The allowance to probate of this will was opposed by Leticia on the grounds that:
1. 1.Petitioner failed to allege all assets of the testator, especially those found in the USA;
2. 2.Petitioner failed to state the names, ages, and residences of the heirs of the testator; or to
give them proper notice pursuant to law;
3. 3.Will was not executed and attested as required by law and legal solemnities and formalities
were not complied with;
4. 4.Testator was mentally incapable to make a will at the time of the alleged execution he
being in an advance sate of senility;
5. 5.Will was executed under duress, or the influence of fear or threats;
6. 6.Will was procured by undue and improper influence and pressure on the part of the
petitioner and/or her agents and/or assistants; and/or
7. 7.Signature of testator was procured by fraud, or trick, and he did not intend that the
instrument should be his will at the time of affixing his signature thereto;

and she also opposed the appointment as Executrix of Josefina alleging her want of
understanding and integrity.
At the hearing, the petitioner Josefina testified and called as witnesses the notary
public Atty. Floro Sarmiento who prepared and notarized the will, and the instrumental
witnesses spouses Eugenio Gomez, Jr. and Feliza Gomez and Josie Collado. For the
opposition, the oppositor Leticia and her daughter Mary Jane Ortega testified.
According to Josefina after her marriage with the testator they lived in her parents
house at Salingcob, Bacnotan, La Union but they came to Manila every month to get his
$366.00 monthly pension and stayed at the said Makati residence. There were times though
when to shave off on expenses, the testator would travel alone. And it was in one of his
travels by his lonesome self when the notarial will was made. The will was witnessed by the
spouses Eugenio and Feliza Gomez, who were their wedding sponsors, and by Josie Collado.
Josefina said she had no knowledge of the existence of the last will and testament of her
husband, but just serendipitously found it in his attache case after his death. It was only
then that she learned that the testator bequeathed to her his properties and she was named
the executrix in the said will. To her estimate, the value of property both real and personal
left by the testator is worth more or less P100,000.00. Josefina declared too that the testator
never suffered mental infirmity because despite his old age he went alone to the market
which is two to three kilometers from their home cooked and cleaned the kitchen and
sometimes if she could not accompany him, even traveled to Manila alone to claim his
monthly pension. Josefina also asserts that her husband was in good health and that he
was hospitalized only because of a cold but which eventually resulted in his death.
Notary Public Floro Sarmiento, the notary public who notarized the testators will,
testified that it was in the first week of June 1983 when the testator together with the three
witnesses of the will went to his house cum law office and requested him to prepare his last
will and testament. After the testator instructed him on the terms and dispositions he
wanted on the will, the notary public told them to come back on June 15, 1983 to give him
time to prepare it. After he had prepared the will the notary public kept it safely hidden
and locked in his drawer. The testator and his witnesses returned on the appointed date but
the notary public was out of town so they were instructed by his wife to come back on
August 9, 1983, and which they did. Before the testator and his witnesses signed the
prepared will, the notary public explained to them each and every term thereof in Ilocano, a
dialect which the testator spoke and understood. He likewise explained that though it
appears that the will was signed by the testator and his witnesses on June 15, 1983, the day
when it should have been executed had he not gone out of town, the formal execution was
actually on August 9, 1983. He reasoned that he no longer changed the typewritten date of
June 15, 1983 because he did not like the document to appear dirty. The notary public also

testified that to his observation the testator was physically and mentally capable at the
time he affixed his signature on the will.
The attesting witnesses to the will corroborated the testimony of the notary public, and
testified that the testator went alone to the house of spouses Eugenio and Feliza Gomez at
GSIS Village, Quezon City and requested them to accompany him to the house of Atty. Floro
Sarmiento purposely for his intended will; that after giving his instructions to Atty. Floro
Sarmiento, they were told to return on June 15, 1983; that they returned on June 15, 1983
for the execution of the will but were asked to come back instead on August 9, 1983 because
of the absence of the notary public; that the testator executed the will in question in their
presence while he was of sound and disposing mind and that he was strong and in good
health; that the contents of the will was explained by the notary public in the Ilocano and
Tagalog dialect and that all of them as witnesses attested and signed the will in the
presence of the testator and of each other. And that during the execution, the testators wife,
Josefina was not with them.
The oppositor Leticia declared that Josefina should not inherit alone because aside from
her there are other children from the siblings of Placido who are just as entitled to inherit
from him. She attacked the mental capacity of the testator, declaring that at the time of the
execution of the notarial will the testator was already 83 years old and was no longer of
sound mind. She knew whereof she spoke because in 1983 Placido lived in the Makati
residence and asked Leticias family to live with him and they took care of him. During that
time, the testators physical and mental condition showed deterioration, aberrations and
senility. This was corroborated by her daughter Mary Jane Ortega for whom Placido took a
fancy and wanted to marry.
Sifting through the evidence, the court a quo held that [t]he evidence adduced, reduces
the opposition to two grounds, namely:
1. Non-compliance with the legal solemnities and formalities in the execution and attestation of the
will; and
2. Mental incapacity of the testator at the time of the execution of the will as he was then in an
advanced state of senility

It then found these grounds extant and proven, and accordingly disallowed probate.

Ruling of the Court of Appeals

Reversing the trial court, the appellate court admitted the will of Placido Valmonte
to probate. The CA upheld the credibility of the notary public and the subscribing

witnesses who had acknowledged the due execution of the will. Moreover, it held
that the testator had testamentary capacity at the time of the execution of the will.
It added that his sexual exhibitionism and unhygienic, crude and impolite
ways did not make him a person of unsound mind.
6

Hence, this Petition.

Issues
Petitioner raises the following issues for our consideration:
I.
Whether or not the findings of the probate court are entitled to great respect.
II.
Whether or not the signature of Placido Valmonte in the subject will was procured by
fraud or trickery, and that Placido Valmonte never intended that the instrument should be
his last will and testament.
III.
Whether or not Placido Valmonte has testamentary capacity at the time he allegedly
executed the subject will.
8

In short, petitioner assails the CAs allowance of the probate of the will of Placido
Valmonte.
This Courts Ruling
The Petition has no merit.
Main

Issue:

Probate of a Will
At the outset, we stress that only questions of law may be raised in a Petition for
Review under Section 1 of Rule 45 of the Rules of Court. As an exception, however,
the evidence presented during the trial may be examined and the factual matters

resolved by this Court when, as in the instant case, the findings of fact of the
appellate court differ from those of the trial court.
9

The fact that public policy favors the probate of a will does not necessarily mean
that every will presented for probate should be allowed. The law lays down the
procedures and requisites that must be satisfied for the probate of a will.
10

Verily, Article 839 of the Civil Code states the instances when a will may be
disallowed, as follows:
Article 839. The will shall be disallowed in any of the following cases:
1. (1)If the formalities required by law have not been complied with;
2. (2)If the testator was insane, or otherwise mentally incapable of making a will, at
the time of its execution;
3. (3)If it was executed through force or under duress, or the influence of fear, or
threats;
4. (4)If it was procured by undue and improper pressure and influence, on the part of
the beneficiary or of some other person;
5. (5)If the signature of the testator was procured by fraud;
1. (6)If the testator acted by mistake or did not intend that the instrument he signed
should be his will at the time of affixing his signature thereto.

In the present case, petitioner assails the validity of Placido Valmontes will by
imputing fraud in its execution and challenging the testators state of mind at the
time.
Existence of Fraud in the Execution of a Will
Petitioner does not dispute the due observance of the formalities in the execution of
the will, but maintains that the circumstances surrounding it are indicative of the
existence of fraud. Particularly, she alleges that respondent, who is the testators
wife and sole beneficiary, conspired with the notary public and the three attesting
witnesses in deceiving Placido to sign it. Deception is allegedly reflected in the
varying dates of the execution and the attestation of the will.

Petitioner contends that it was highly dubious for a woman at the prime of her
young life [to] almost immediately plunge into marriage with a man who [was]
thrice her age x x x and who happened to be [a] Fil-American pensionado, thus
casting doubt on the intention of respondent in seeking the probate of the will.
Moreover, it supposedly defies human reason, logic and common experience for an
old man with a severe psychological condition to have willingly signed a last will and
testament.
11

12

We are not convinced. Fraud is a trick, secret device, false statement, or

pretense, by which the subject of it is cheated. It may be of such character that the
testator is misled or deceived as to the nature or contents of the document which he
executes, or it may relate to some extrinsic fact, in consequence of the deception
regarding which the testator is led to make a certain will which, but for the fraud,
he would not have made.
13

We stress that the party challenging the will bears the burden of proving the
existence of fraud at the time of its execution. The burden to show otherwise shifts
to the proponent of the will only upon a showing of credible evidence of
fraud. Unfortunately in this case, other than the self-serving allegations of
petitioner, no evidence of fraud was ever presented.
14

15

It is a settled doctrine that the omission of some relatives does not affect the due
execution of a will. That the testator was tricked into signing it was not sufficiently
established by the fact that he had instituted his wife, who was more than fifty
years his junior, as the sole beneficiary; and disregarded petitioner and her family,
who were the ones who had taken the cudgels of taking care of [the testator] in his
twilight years.
16

17

Moreover, as correctly ruled by the appellate court, the conflict between the dates
appearing on the will does not invalidate the document, because the law does not
even require that a [notarial] will x x x be executed and acknowledged on the same
occasion. More important, the will must be subscribed by the testator, as well as by
three or more credible witnesses who must also attest to it in the presence of the
testator and of one another. Furthermore, the testator and the witnesses must
acknowledge the will before a notary public. In any event, we agree with the CA
that the variance in the dates of the will as to its supposed execution and
18

19

20

attestation was satisfactorily and persuasively explained by the notary public and
the instrumental witnesses.
21

The pertinent transcript of stenographic notes taken on June 11, 1985, November
25, 1985, October 13, 1986, and October 21, 1987as quoted by the CAare
reproduced respectively as follows:

Atty. Floro Sarmiento:

Q

You typed this document exhibit C, specifying the date

June 15 when the testator and his witnesses were
supposed to be in your office?

Yes sir.

On June 15, 1983, did the testator and his witnesses come
to your house?

They did as of agreement but unfortunately, I was out of

town.
xxx

xxx

xxx

The document has been acknowledged on August 9, 1983

as per acknowledgement appearing therein. Was this the
actual date when the document was acknowledged?

Yes sir.

What about the date when the testator and the three
witnesses affixed their respective signature on the first
and second pages of exhibit C?

On that particular date when it was acknowledged,

August 9, 1983.

Why did you not make the necessary correction on the

date appearing on the body of the document as well as the
attestation clause?

Because I do not like anymore to make some alterations

so I put it in my own handwriting August 9, 1983 on the
acknowledgement. (tsn, June 11, 1985, pp. 8-10)

Eugenio Gomez:
Q

It appears on the first page Mr. Witness that it is dated

June 15, 1983, whereas in the acknowledgement it is
dated August 9, 1983, will you look at this document and
tell us this discrepancy in the date?

We went to Atty. Sarmiento together with Placido

Valmonte and the two witnesses; that was first week of
June and Atty. Sarmiento told us to return on the 15th of
June but when we returned, Atty. Sarmiento was not
there.

When you did not find Atty. Sarmiento on June 15, 1983,
did you again go back?

We returned on the 9th of August and there we signed.

This August 9, 1983 where you said it is there where you

signed, who were your companions?

The two witnesses, me and Placido Valmonte. (tsn,

November 25, 1985, pp. 7-8)

Felisa Gomez on cross-examination:
Q

Why did you have to go to the office of Atty. Floro

Sarmiento, three times?
xxx

xxx

xxx

The reason why we went there three times is that, the first
week of June was out first time. We went there to talk to
Atty. Sarmiento and Placido Valmonte about the last will
and testament. After that what they have talked what will
be placed in the testament, what Atty. Sarmiento said was
that he will go back on the 15th of June. When we
returned on June 15, Atty. Sarmiento was not there so we
were not able to sign it, the will. That is why, for the third
time we went there on August 9 and that was the time we
affixed our signature. (tsn, October 13, 1986, pp. 4-6)

Josie Collado:
Q

When you did not find Atty. Sarmiento in his house on

June 15, 1983, what transpired?

The wife of Atty. Sarmiento told us that we will be back

on August 9, 1983.

And on August 9, 1983 did you go back to the house of

Atty. Sarmiento?

Yes, Sir.

For what purpose?

Our purpose is just to sign the will.

Were you able to sign the will you mentioned?

Yes sir. (tsn, October 21, 1987, pp. 4-5)

22

Notably, petitioner failed to substantiate her claim of a grand conspiracy in the

commission of a fraud. There was no showing that the witnesses of the proponent
stood to receive any benefit from the allowance of the will. The testimonies of the
three subscribing witnesses and the notary are credible evidence of its due
execution. Their testimony favoring it and the finding that it was executed in
accordance with the formalities required by law should be affirmed, absent any
showing of ill motives.
23

24

Capacity to Make a Will

In determining the capacity of the testator to make a will, the Civil Code gives the
following guidelines:
Article 798. In order to make a will it is essential that the testator be of sound mind at the
time of its execution.
Article 799. To be of sound mind, it is not necessary that the testator be in full possession
of all his reasoning faculties, or that his mind be wholly unbroken, unimpaired, or shattered
by disease, injury or other cause.
It shall be sufficient if the testator was able at the time of making the will to know the
nature of the estate to be disposed of, the proper objects of his bounty, and the character of
the testamentary act.
Article 800. The law presumes that every person is of sound mind, in the absence of
proof to the contrary.

The burden of proof that the testator was not of sound mind at the time of making his
dispositions is on the person who opposes the probate of the will; but if the testator, one
month, or less, before making his will was publicly known to be insane, the person who
maintains the validity of the will must prove that the testator made it during a lucid
interval.

According to Article 799, the three things that the testator must have the ability to
know to be considered of sound mind are as follows: (1) the nature of the estate to be
disposed of, (2) the proper objects of the testators bounty, and (3) the character of
the testamentary act. Applying this test to the present case, we find that the
appellate court was correct in holding that Placido had testamentary capacity at the
time of the execution of his will.
It must be noted that despite his advanced age, he was still able to identify
accurately the kinds of property he owned, the extent of his shares in them and even
their locations. As regards the proper objects of his bounty, it was sufficient that he
identified his wife as sole beneficiary. As we have stated earlier, the omission of
some relatives from the will did not affect its formal validity. There being no
showing of fraud in its execution, intent in its disposition becomes irrelevant.
Worth reiterating in determining soundness of mind isAlsua-Betts v. CA, which
held thus:
25

Between the highest degree of soundness of mind and memory which unquestionably
carries with it full testamentary capacity, and that degrees of mental aberration generally
known as insanity or idiocy, there are numberless degrees of mental capacity or incapacity
and while on one hand it has been held that mere weakness of mind, or partial imbecility
from disease of body, or from age, will not render a person incapable of making a will; a
weak or feebleminded person may make a valid will, provided he has understanding and
memory sufficient to enable him to know what he is about to do and how or to whom he is
disposing of his property. To constitute a sound and disposing mind, it is not necessary that
the mind be unbroken or unimpaired or unshattered by disease or otherwise. It has been
held that testamentary incapacity does not necessarily require that a person shall actually
be insane or of unsound mind.
26

WHEREFORE, the Petition is DENIED, and the assailed Decision and Resolution
of the Court of Appeals are AFFIRMED. Costs against petitioner.
SO ORDERED.

Sandoval-Gutierrez, Corona, Carpio-Morales andGarcia, JJ., concur.

Petition denied, assailed decision and resolution affirmed.
Note.In the interpretation of wills, when an uncertainty arises on the face of
the will, the testators intention is to be ascertained from the words of the will
taking into consideration the circumstances under which it was made. (Rabadilla
vs. Court of Appeals, 334 SCRA 522[2000])
o0o

[No. 15566.September 14, 1921]

EUTIQUIA AVERA, petitioner and appellee, vs. MARINO GARCIA,and JUAN

RODRIGUEZ, as guardian of the minors Cesar Garcia and Jose Garcia,
objectors and appellants.
1.WILLS; PROBATE; NECESSITY

FOR

PRODUCTION

OF

ATTESTING WITNESSES.When

the petition for probate of a will is contested the proponent should introduce all
three of the attesting witnesses, if alive and within reach of the process of the
court; and the execution of the will cannot be considered sufficiently proved by
the testimony of only one, without satisfactory explanation of the failure to
produce the other two.
2.ID.; PLEADING

AND

PRACTICE; OBJECTION

TO

PROOF

OF

WILL

BY

SINGLE WITNESS.

Nevertheless, in a case where the attorney for the contestants raised no

question upon this point in the court below, either at the hearing upon the
petition or in the motion to rehear, it is held that an objection to the probate of
the will on the ground that only one attesting witness was examined by the
proponent of the will, without accounting for the absence of the others, cannot be
made for the first time in this court.
3.WILLS; SIGNATURES
MARGIN.A

will

OF

TESTATOR

otherwise

AND

properly

ATTESTING WITNESSES; USE

executed

in

accordance

OF

RIGHT

with

the

requirements of existing law is not rendered invalid by the fact that the paginal
signatures of the testator and attesting witnesses appear in the right margin
instead of the left.
APPEAL from a judgment of the Court of First Instance of Zambales.San
Agustin, J.

The facts are stated in the opinion of the court.

Dionisio Villanueva for appellants.
Marcelino Lontok for appellee.
STREET,J.:
In proceedings in the court below, instituted by Eutiquia Avera for probate of the
will of one Esteban Garcia, contest was made by Marino Garcia and Juan
Rodriguez, the latter in the capacity of guardian for the minors Jose Garcia and
Cesar Garcia. Upon the date appointed for the hearing, the proponent of the will
introduced one of the three attesting witnesses who testifiedwith details not
necessary to be here specifiedthat the will was executed with all necessary
external formalities, and that the testator was at the time in full possession of
disposing faculties. Upon the latter point the witness was corroborated by the
person who wrote the will at the request of the testator. Two of the attesting
witnesses were not introduced, nor was their absence accounted for by the
proponent of the will.
When the proponent rested the attorney for the opposition introduced a single
witness whose testimony tended to show in, a vague and indecisive manner that at
the time the will was made the testator was so debilitated as to be unable to
comprehend what he was about.
After the cause had been submitted for determination upon the proof thus
presented, the trial judge found that the testator at the time of the making of the
will was of sound mind and disposing memory and that the will had been properly
executed. He accordingly admitted the will to probate.

From this judgment an appeal was taken in behalf of the persons contesting the
will, and the only errors here assigned have reference to the two following points,
namely, first, whether a will can be admitted to probate, where opposition is made,
upon the proof of a single attesting witness, without producing or accounting for the
absence of the other two; and, secondly, whether the will in question is rendered
invalid by reason of the fact that the signature of the testator and of the three
attesting witnesses are written on the right margin of each page of the will instead
of the left margin.
Upon the first point, while it is undoubtedly true that an uncontested will may be
proved by the testimony of only one of the three attesting witnesses, nevertheless in
Cabang vs. Delfinado (34 Phil., 291), this court declared after an elaborate
examination of the American and English authorities that when a contest is
instituted, all of the attesting witnesses must be examined, if alive and within reach
of the process of the court.
In the present case no explanation was made at the trial as to why all three of
the attesting witnesses were not produced, but the probable reason is found in the
fact that, although the petition for the probate of this Will had been pending from
December 21, 1917, until the date set for the hearing, which was April 5, 1919, no
formal contest was entered until the very day set for the hearing; and it is probable
that the attorney for the proponent, believing in good faith that probate would not
be contested, repaired to the court with only one of the three attesting witnesses at
hand, and upon finding that the will was contested, incautiously permitted the case
to go to proof without asking for a postponement of the trial in order that he might
produce all the attesting witnesses.

Although this circumstance may explain why the three witnesses were not
produced, it does not in itself supply any basis for changing the rule expounded in
the case above referred to; and were it not for a fact now to be mentioned, this court
would probably be compelled to reverse this case on the ground that the execution of
the will had not been proved by a sufficient number of attesting witnesses.
It appears, however, that this point was not raised by the appellant ih the lower
court either upon the submission of the cause for determination in that court or
upon the occasion of the filing of the motion for a new trial. Accordingly it is insisted
for the appellee that this question cannot now be raised for the first time in this
court. We believe this point is well taken, and the first assignment of error must be
declared not to be well taken. This exact question has been decided by the Supreme
Court of California adversely to the contention of the appellant, and we see no
reason why the same rule of practice should not be observed by us. (Estate of
McCarty, 58 Cal., 335, 337.)
There are at least two reasons why the appellate tribunals are disinclined to
permit certain questions to be raised for the first time in the second instance. In the
first place it eliminates the judicial criterion of the Court of First Instance upon the
point there presented and makes the appellate court in effect a court of first
instance with reference to that point, unless the case is remanded for a new trial. In
the second place, it permits, if it does not encourage, attorneys to trifle with the
administration of justice by concealing from the trial court and from their opponent
the actual point upon which reliance is placed, while they are engaged in other
discussions more simulated than real. These considerations are, we think, decisive.

In ruling upon the point above presented we do not wish to be understood as

laying down any hard and fast rule that would prove an embarrassment to this
court in the administration of justice in the future. In one way or another we are
constantly here considering aspects of cases and applying doctrines which have
escaped the attention of all persons concerned in the litigation below; and this is
necessary if this court is to contribute the part due from it in the correct decision of
the cases brought before it. What we mean to declare is that when we believe that
substantial justice has been done in the Court of First Instance, and the point relied
on for reversal in this court appears to be one which ought properly to have been
presented in that court, we will in the exercise of a sound discretion ignore such
question upon appeal; and this is the more proper when the question relates a defect
which might have been cured in the Court of First Instance if attention had been
called to it there. In the present case, if the appellant had raised this question in the
lower court, either at the hearing or upon a motion for a new trial, that court would
have had the power, and it would have been its duty, considering the tardy
institution of the contest, to have granted a new trial in order that all the witnesses
to the will might be brought into court. But instead of thus calling the error to the
attention of the court and his adversary, the point is first raised by the appellant in
this court. We hold that this is too late.
Properly understood, the case of Cabang vs. Delfinado,supra, contains nothing
inconsistent with the ruling we now make, for it appears from the opinion in that
case that the proponent of the will had obtained an order for a republication and
new trial for the avowed purpose of presenting the two additional attesting
witnesses who had not been previously examined, but nevertheless subsequently

failed without any apparent reason to take their testimony. Both parties in that case
were therefore fully apprised that the question of the number of witnesses necessary
to prove the will was in issue in the lower court.
The second point involved in this case is whether, under section 618 of the Code
of Civil Procedure, as amended by Act No. 2645, it is essential to the validity of a
will in this jurisdiction that the names of the testator and the instrumental
witnesses should be written on the left margin of each page, as required in said Act,
and not upon the right margin, as in the will now before us; and upon this we are of
the opinion that the will in question is valid. It is true that the statute says that the
testator and the instrumental witnesses shall sign their names on the left margin of
each and every page; and it is undeniable that the general doctrine is to the effect
that all statutory requirements as to the execution of wills must be fully complied
with. The same doctrine is also deducible from cases heretofore decided by this
court.
Still some details at times creep into legislative enactments which are so trivial
that it would be absurd to suppose that the Legislature could have attached any
decisive importance to them. The provision to the effect that the signatures of the
testator and witnesses shall be written on the left margin of each pagerather than
on the right marginseems to be of this character. So far as concerns the
authentication of the will, and of every part thereof, it can make no possible
difference whether the names appear on the left or no the right margin, provided
they are on one or the other. In Caraig vs. Tatlonghari (R. G. No. 12558, decided
March 23,1918, not reported), this court declared a will void which was totally
lacking in the signatures required to be written on its several pages; and in the case

of Re: estate of Saguinsin (41 Phil., 875), a will was likewise declared void which
contained the necessary signatures on the margin of each leaf (folio), but not in the
margin of each page containing written matter.
The instrument now before us contains the necessary signatures on every page,
and the only point of deviation from the requirement of the statute is that these
signatures appear in the right margin instead of the left. By the mode of signing
here adopted every page and provision of the will is authenticated and guarded from
possible alteration in exactly the same degree that it would have been protected by
being signed in the left margin; and the resources of casuistry could be exausted
without discovering the slightest difference between the consequences of affixing the
signatures in one margin or the other.
The same could not be said of a case like that of Estate of Saguinsin, supra,
where only the leaves, or alternate pages, were signed and not each written page;
for as observed in that case by our late lamented Chief Justice, it was possible that
in the will as there originally executed by the testatrix only the alternative pages
had been used, leaving blanks on the reverse sides, which conceivably might have
been filled in subsequently.
The controlling considerations on the point now before us were well stated
in Re: will of Abangan (40 Phil., 476, 479), where the court, speaking through Mr.
Justice Avancea, in a case where the signatures were placed at the bottom of the
page and not in the margin, said:
"The object of the solemnities surrounding the execution of wills is to close the door
against bad faith and fraud, to avoid substitution of wills and testaments and to guarantee
their truth and authenticity. Therefore the laws on this subject should be interpreted in
such a way as to attain these primordial ends. But, on the other hand, also one must not

lose sight of the fact that it is not the object of the law to restrain and curtail the exercise of
the right to make a will. So when an interpretation already given assures such ends, any
other interpretation whatsoever, that adds nothing but demands more requisites entirely
unnecessary, useless and frustrative of the testator's last will, must be disregarded."

In the case before us, where ingenuity could not suggest any possible prejudice to
any person, as attendant upon the actual deviation from the letter of the law, such
deviation must be considered too trivial to invalidate the instrument.

No. L-26615. April 30, 1970.

REV. FATHER LUCIO V. GARCIA,ANTONIO JESUS DE PRAGA, MARIA
NATIVIDAD
DE
JESUS
AND
DR.JAIME
ROSARIO,
petitioners, vs. HON.CONRADO M. VASQUEZ, as Judge of the Court of First
Instance of Manila, Branch V, and CONSUELO GONZALES VDA. DE PRECILLA,
respondents.
No. L-26884. April 30, 1970.
REV.FATHER LUCIO V. GARCIA,ANTONIO JESUS DE PRAGA, MARIA
NATIVIDAD
DE
JESUS
AND
DR.JAIME
ROSARIO,
petitioners, vs. HON.CONRADO ML VASQUEZ, as Judge of the Court of First
Instance of Manila, Branch V, REGISTER OF DEEDS OF MANILA,and
CONSUELO GONZALES VDA.DE PRECILLA, respondents.
No. L-27200. April 30, 1970.

TESTATE ESTATE OF GLICERIA A. DEL ROSARIO, deceased CONSUELO S.

GONZALES
VDA.DE
PRECILLA,
petitioner-administratrix, vs. SEVERINA
NARCISO,ROSA NARCISO, JOSEFINA NARCISO,VICENTE MAURICIO,DELFIN
MAURICIO,REMEDIOS
NARCISO,ENCARNACION,NARCISO,MARIA
NARCISO,EDUARDO NARCISO,FR.LUCIO V. GARCIA, ANTONIO JESUS DE
PRAGA,MARIA NATIVIDAD DE JESUS, DR.JAIME DEL ROSARIO, ET AL.,
NATIVIDAD DEL ROSARIO-SARMIENTO and PASCUALA NARCISOMANAHAN, oppositors-appellants.
Succession; Wills; Execution of wills; Where testator is blind, will must be read to him
twice; Reasons.Where the testator is blind, the will must be read to him twice as required
by Article 808 of the Civil Code. The reason for this is to make the provisions thereof known
to him, so that he may be able to object if they are not in accordance with his wishes.
Failure to comply with this requirement makes the will invalid.
Settlement of estate of deceased persons; Administrators;Where administrator holds
adverse interest to estate, he may be removed.Where the administrator hold interest
adverse to the estate or by his conduct, demonstrated his unfitness or unsuitableness to
discharge the trust, he should be removed from the administration from the estate.
Civil actions; Lis pendens; Not applicable where action does not affect real property or
title thereto.Notice of the pendency of an action may be recorded in the office of the
register of deeds of the province in which the property is situated if the action affects the
title or the right of possession of real property. It does not apply where the case is concerned
merely with the correctness of the denial by the probate court of the motion for the removal
of the special administratrix of the estate which does not involve the title to or possession of
real properties of the estate.

APPEAL from an order of the Court of First Instance of Manila. Vasquez, J.

The facts are stated in the opinion of the Court.
Antonio Enrile Inton for petitioner Rev. Father Lucio V. Garcia.
Pedro V. Garcia for petitioner Antonio Jesus de Praga, et al.
Leandro Sevilla & Ramon C. Aquino and Melquiades M. Virata, Jr. for
respondent Consuelo S. Gonzales Vda. de Precilla.
Lorenzo C. Gella for respondent Register of Deeds of Manila.

Leandro Sevilla & Ramon C. Aquino for petitioner-administratrix.

Castro, Makalintal
Narciso, et al.

&

Associates for

oppositors-appellants

Encarnacion

Pedro Garcia for oppositors-appellants Dr. Jaime Rosario, et al.

Antonio Enrile Inton for oppositors-appellants Fr. Lucio V. Garcia and Antonio
Jesus de Praga.
Salonga, Ordoez, Yap, Sicat & Associates foroppositors-appellants Severina
Narciso, et al.
George G. Arbolario and Sixto R. Reyes & Vicente Redor for oppositorsappellants Natividad del Rosario-Sarmiento, et al.
REYES, J.B.L., J.:
G.R. No. L-27200 is an appeal from the order of the Court of First Instance of
Manila (in Sp. Proc. No. 62618) admitting to probate the alleged last will and
testament of the late Gliceria Avelino del Rosario, dated 29 December 1960. G.R.
Nos. L-26615 and L-26864 are separate petitions for mandamus filed by certain
alleged heirs of said decedent seeking (1) to compel the probate court to remove
Consuelo S. Gonzales-Precilla as special administratrix of the estate, for conflict of
interest, and to appoint a new one in her stead; and (2) to order the Register of
Deeds of Manila to annotate notice of lis pendens in TCT Nos. 81735, 81736 and
81737, registered in the name of Alfonso Precilla, married to Consuelo Gonzales y
Narciso, and said to be properly belonging to the estate of the deceased Gliceria A.
del Rosario.
Insofar as pertinent to the issues involved herein, the facts of these cases may be
stated as follows:
Gliceria Avelino del Rosario died unmarried in the City of Manila on 2 September
1965, leaving no descendents, ascendants, brother or sister. At the time of her
death, she was said to be 90 years old more or less, and possessed of an estate
consisting mostly of real properties.

On 17 September 1965, Consuelo S. Gonzales Vda. de Precilla, a niece of the

deceased, petitioned the Court of First Instance of Manila for probate of the alleged
last will and testament of Gliceria A. del Rosario, executed on 20 December 1960,
and for her appointment as special administratrix of the latters estate, said to be
valued at about P100,000.00, pending the appointment of a regular administrator
thereof.
The petition was opposed separately by several groups of alleged heirs: (1) Rev.
Fr. Lucio V. Garcia, a legatee named in an earlier will executed by Gliceria A. del
Rosario on 9 June 1956; (2) Jaime Rosario and children, relatives and legatees in
both the 1956 and 1960 wills; Antonio Jesus de Praga and Marta Natividad de
Jesus, wards of the deceased and legatees in the 1956 and 1960 wills; (3) Remedios,
Encarnacion, and Eduardo, all surnamed Narciso; (4) Natividad del RosarioSarmiento; (5) Maria Narciso; (6) Pascuala Narciso de Manahan; (7) Severina, Rosa
and Josefa, surnamed Narciso, and Vicente and Delfin, surnamed Mauricio,the
latter five groups of persons all claiming to be relatives of Dona Gliceria within the
fifth civil degree. The oppositions invariably charged that the instrument executed
in 1960 was not intended by the deceased to be her true will; that the signatures of
the deceased appearing in the will was procured through undue and improper
pressure and influence on the part of the beneficiaries and/or other persons; that the
testatrix did not know the object of her bounty; that the instrument itself reveals
irregularities in its execution, and that the formalities required by law for such
execution have not been complied with.
Oppositor Lucio V. Garcia, who also presented for probate the 1956 will of the
deceased, joined the group of Dr. Jaime Rosario in registering opposition to the
appointment of petitioner Consuelo S. Gonzales Vda. de Precilla as special
administratrix, on the ground that the latter possesses interest adverse to the
estate. After the parties were duly heard, the probate court, in its order of 2 October
1965, granted petitioners prayer and appointed her special administratrix of the
estate upon a bond for P30,000.00. The order was premised on the fact the
petitioner was managing the properties belonging to the estate even during the
lifetime of the deceased, and to appoint another person as administrator or coadministrator at that stage of the proceeding would only result in further confusion
and difficulties.

On 30 September 1965, oppositors Jaime Rosario, et al. filed with the probate
court an urgent motion to require the Hongkong & Shanghai Bank to report all
withdrawals made against the funds of the deceased after 2 September 1965. The
court denied this motion on 22 October 1965 for being premature, it being unaware
that such deposit in the name of the deceased existed.
1

On 14 December 1965, the same sets of oppositors, Dr. Jaime Rosario and
children, Antonio Jesus de Praga, Natividad de Jesus and Fr. Lucio V. Garcia,
petitioned the court for the immediate removal of the special administrartrix. It was
their claim that the special administratrix and her deceased husband, Alfonso
Precilla, had caused Gliceria A. del Rosario to execute a simulated and fraudulent
deed of absolute sale dated 10 January 1961 allegedly conveying unto said spouses
for the paltry sum of P30,000.00 ownership of 3 parcels of land and the
improvements thereon located on Quiapo and San Nicolas, Manila, with a total
assessed value of P334,050.00. Oppositors contended that since it is the duty of the
administrator to protect and conserve the properties of the estate, and it may
become necessary that an action for the annulment of the deed of sale and for
recovery of the aforementioned parcels of land be filed against the special
administratrix, as wife and heir of Alfonso Precilla, the removal of the said
administratrix was imperative.
2

On 17 December 1965, the same oppositors prayed the court for an order,
directing the Special Administratrix to deposit with the Clerk of Court all
certificates of title belonging to the estate. It was alleged that on 22 October 1965,
or after her appointment, petitioner Consuelo Gonzales Vda. de Precilla, in her
capacity as special administratrix of the estate of the deceased Gliceria A. del
Rosario, filed with Branch IV of the Court of First Instance of Manila a motion for
the issuance of new copies of the owners duplicates of certain certificates of title in
the name of Gliceria del Rosario, supposedly needed by her in the preparation of
the inventory of the properties constituting the estate. The motion having been
granted, new copies of the owners duplicates of certificates appearing the name of
Gliceria del Rosario (among which were TCT Nos. 66201, 66202 and 66204) were
issued on 15 November 1965. On 8 December 1965, according to the oppositors, the
same special administratrix presented to the Register of Deeds the deed of sale
involving properties covered by TCT Nos. 66201, 66202 and 66204 supposedly
executed by Gliceria del Rosario on 10 January 1961 in favor of Alfonso Precilla,
and, in consequence, said certificates of title were cancelled and new certificates

(Nos. 81735, 81736 and 81737) were issued in the name of Alfonso Precilla, married
to Consuelo S. Gonzales y Narciso.
On 25 August 1966, the Court issued an order admitting to probate the 1960 will
of Gliceria A. del Rosario (Exhibit D). In declaring the due execution of the will,
the probate court took note that no evidence had been presented to establish that
the testatrix was not of sound mind when the will was executed; that the fact that
she had prepared an earlier will did not prevent her from executing another one
thereafter; that the fact that the 1956 will consisted of 12 pages whereas the 1960
testament was contained in one page does not render the latter invalid; that the
erasures and alterations in the instrument were insignificant to warrant rejection;
that the inconsistencies in the testimonies of the instrumental witnesses which
were noted by the oppositors are even indicative of their truthfulness. The probate
court, also considering that petitioner had already shown capacity to administer the
properties of the estate and that from the provisions of the will she stands as the
person most concerned and interested therein, appointed said petitioner regular
administratrix with a bond for P50,000.00. From this order all the oppositors
appealed, the case being docketed in this Court as G.R. No. L-27200.
Then, on 13 September 1966, the probate court resolved the oppositors motion of
14 December 1965 for the removal of the then special administratrix, as follows:
It would seem that the main purpose of the motion to remove the special administratrix
and to appoint another one in her stead, is in order that an action may be filed against the
special administratrix for the annulment of the deed of sale executed by the decedent on
January 10, 1961. Uiider existing documents, the properties sold pursuant to the said deed
of absolute sale no longer forms part of the estate. The alleged conflict of interest is
accordingly not between different claimants of the same estate. If it is desired by the
movants that an action be filed by them to annul the aforesaid deed of absolute sale, it is
not necessary that the special administratrix be removed and that another one be appointed
to file such action. Such a course of action would only produce confusion and difficulties in
the settlement of the estate. The movants may file the aforesaid proceedings, preferably in
an independent action, to secure the nullity of the deed of absolute sale even without leave
of this court:

As regard the motion of 17 December 1965 asking for the deposit in court of the
titles in the name of the decedent, the same was also denied, for the reason that if
the movants were referring to the old titles, they could no longer be produced, and if

they meant the new duplicate copies thereof that were issued at the instance of the
special administratrix, there would be no necessity therefor, because they were
already cancelled and other certificates were issued in the name of Alfonso Precilla.
This order precipitated the oppositors filing in this Court of a petition for
mandamus (G.R. No. L-26615, Rev. Fr. Lucio V. Garcia, et al. vs. Hon. Judge
Conrado M. Vasquez, et al.), which was given due course on 6 October 1966.
On 15 December 1965, with that motion for removal pending in the court, the
oppositors requested the Register of Deeds of Manila to annotate a notice of lis
pendens in the records of TCT Nos. 81735, 81736, and 81737 the name of Alfonso
Precilla. And when said official refused to do so, they applied to the probate court (in
Sp. Proc. No. 62618) for an order to compel the Register of Deeds to annotate alis
pendens notice in the aforementioned titles contending that the matter of removal
and appointment of the administratrix, involving TCT Nos. 81735, 81736, and
81737, was already before the Supreme Court. Upon denial of this motion on 12
November 1966, oppositors filed another mandamus action, this time againts the
probate court and the Register of Deeds. The case was decided and given due course
in this Court as G.R. No. L-26864.
Foremost of the questions to be determined here concerns the correctness of the
order allowing the probate of the 1960 will.
The records of the probate proceeding fully establish the fact that the testatrix,
Gliceria A. del Rosario, during her lifetime, executed two wills: one on 9 June 1956
consisting of 12 pages and written in Spanish, a language that she knew and spoke,
witnessed by Messrs. Antonio Cabrera, Jesus Y. Ayala and Valentin Marquez, and
acknowledged before notary public Jose Ayala; and another dated 29 December
1960, consisting of 1 page and written in Tagalog, witnessed by Messrs. Vicente
Rosales, Francisco Decena, and Francisco Lopez and acknowledged before notary
public Remigio M. Tividad.
Called to testify on the due execution of the 1960 will, instrumental witnesses
Decena, Lopez and Rosales uniformly declared that they were individually
requested by Alfonso Precilla (the late husband of petitioner special administratrix)
to witness the execution of the last will of Doa Gliceria A. del Rosario; that they
arrived at the house of the old lady at No. 2074 Azcarraga, Manila one after the
other, in the afternoon of 29 December 1960; that the testatrix at the time was

apparently of clear and sound mind, although she was being aided by Precilla when
she walked; that the will, which was already prepared, was first read silently by
the testatrix herself before she signed it; that the three witnesses thereafter signed
the will in the presence of the testatrix and the notary public and of one another.
There is also testimony that after the testatrix and the witnesses to the will
acknowledged the instrument to be their voluntary act and deed, the notary public
asked for their respective residence certificates which were handed to him by
Alfonso Precilla, clipped together; that after comparing them with the numbers
already written on the will, the notary public filled in the blanks in the instrument
with the date, 29 January 1960, before he affixed his signature and seal
thereto, They also testified that on that occasion no pressure or influence has been
exerted by any person upon the testatrix to execute the will.
3

Of course, the interest and active participation of Alfonso Precilla in the signing
of this 1960 will are evident from the records. The will appeared to have been
prepared by one who is not conversant with the spelling of Tagalog words, and it has
been shown that Alfonso Precilia is a Cebuano who speaks Tagalog with a Visayan
accent. The witnesses to the will, two of whom are fellow Visayans, admitted their
relationship or closeness to Precilla. It was Precilla who instructed them to go to
the house of Gliceria del Rosario on 29 December 1960 to witness an important
document, and who took their residence certificates from them a few days before
the will was signed, Precilla had met the notary public and witnesses Rosales and
Lopez at the door of the residence of the old woman; he ushered them to the room at
the second floor where the signing of the document took place; then he fetched
witness Decena from the latters haberdashery shop a few doors away and brought
him to the house of the testatrix. And when the will was actually executed Precilla
was present.
7

10

11

12

13

14

The oppositors-appellants in the present case, however, challenging the

correctness of the probate courts ruling, maintain that on 29 December 1960 the
eyesight of Gliceria del Rosario was so poor and defective that she could not have
read the provisions of the will, contrary to the testimonies of witnesses Decena,
Lopez and Rosales.
On this point, we find the declarations in court of Dr. Jesus V. Tamesis very
material and illuminating. Said ophthalmologist, whose expertise was admitted by
both parties, testified, among other things, that when Doa Gliceria del Rosario saw

him for consultation on 11 March 1960 he found her left eye to have cataract
(opaque lens), and that it was above normal in pressure, denoting a possible
glaucoma, a disease that leads to blindness. As to the conditions of her right eye,
Dr. Tamesis declared:
15

16

Q But is there anything here in the entry appearing in the

other documents Exhibits 3-B, 3-C and 3-D from which
you could inform the court as to the condition of the
vision of the patient as to the right eye?
A Under date of August 30, 1960, is the record of refraction,
that is setting of glass by myself which showed that the
right eye with my prescription of glasses had a vision of
20 over 60 (20/60) and for the left eye with her correction
20 over 300 (20/300).
Q In laymans language. Doctor, what is the significance of
that notation that the right had a degree of 20 over 60
(20/60)?
A It meant that that eye at least would be able to recognize
objects or persons at a minimum distance of twenty feet.
Q But would that grade enable the patient to read print?
A Apparently that is only a record for distance vision, for
distance sight, not for near. (pages 20-21, t.s.n., hearing
of 23 March 1966)
The records also show that although Dr. Tamesis operated on the left eye of the
decedent at the Lourdes Hospital on 8 August 1960; as of 23 August 1960, in spite of
the glasses her vision was only counting fingers, at five feet. The crossexamination of the doctor further elicited the following responses:
17

Q After she was discharged from the hospital you prescribed

lenses for her, or glasses?
A After her discharge from the hospital, she was coming to
my clinic for further examination and then sometime later
glasses were prescribed.
xxx

xxx

xxx

xxx

Q And the glasses prescribed by you enabled her to read,

Doctor?
A As far as my record is concerned, with the glasses for the
left eye which I prescribedthe eye which I operated
she could see only forms but not read. That is on the left
eye.
Q How about the right eye?
A The same, although the vision on the right eye is even
better than the left eye. (pages 34, 35, t.s.n., hearing of
23 March 1966).
Then, confronted with a medical certificate (Exhibit H) issued by him on 29
November 1965 certifying that Gliceria del Rosario was provided with aphakic
lenses and had been under medical supervision up to 1963 with apparently good
vision, the doctor had this to say:

Q When you said that she had apparently good vision you
mean that she was able to read?

A No, not necessarily, only able to go around, take care of

herself and see. This I can tell you, this report was made
on pure recollections and I recall she was using her
glasses although I recall also that we have to give her
medicines to improve her vision, some medicines to
improve her identification some more.
xxx

xxx

xxx

xxx

Q What about the vision in the right eye, was that corrected
by the glasses?
A Yes, with the new prescription which I issued on 30
August 1960. It is in the clinical record.
Q The vision in the right eye was corrected?
A Yes. That is the vision for distant objects. (pages 38, 39,
40, ts.n., hearing of 23 March 1966).
That is the vision for distant objects. (pages 38, 39, 40, ts.n., hearing of 23 March
1966). The foregoing testimony of the ophthalmologist who treated the deceased
and, therefore, has first hand knowledge of the actual condition of her eyesight from
August, 1960 up to 1963, fully establish the fact that notwithstanding the operation
and removal of the cataract in her left eye and her being fitted with aphakic lens
(used by cataract patients), her vision remained mainly for viewing distant objects
and not for reading print. Thus, the conclusion is inescapable that with the
condition of her eyesight in August, 1960, and there is no evidence that it had
improved by 29 December 1960, Gliceria del Rosario was incapable of reading, and
could not have read the provisions of the will supposedly signed by her on 29
December 1960. It is worth noting that the instrumental witnesses stated that she
read the instrument silently (t.s.n., pages 164-165). which is a conclusion and not
a fact.

Against the background of defective eyesight of the alleged testatrix, the

appearance of the will, Exhibit D, acquires striking significance. Upon its face, the
testamentary provisions, the attestation clause and acknowledgment were crammed
together into a single sheet of paper, so much so that the words had to be written
very close to the top, bottom and two sides of the paper, leaving no margin
whatsoever; the word and had to be written by the symbol &, apparently to save
on space. Plainly, the testament was not prepared with any regard for the defective
vision of Doa Gliceria. Further, typographical errors like HULINH for
HULING (last), Alfonsa for Alfonso, MERCRDRS for MERCEDES,
instrumental for Instrumental, and acknowledged for acknowledge, remained
unconnected, thereby indicating that execution thereof must have been
characterized by haste. It is difficult to understand that so important a document
containing the final disposition of ones worldly possessions should be embodied in
an informal and untidily written instrument; or that the glaring spelling errors
should have escaped her notice if she had actually retained the ability to read the
purported will and had done so. The record is thus convincing that the supposed
testatrix could not have physically read or understood the alleged testament,
Exhibit D, and that its admission to probate was erroneous and should be
reversed.
That Doa Gliceria should be able to greet her guests on her birthday, arrange
flowers and attend to kitchen tasks shortly prior to the alleged execution of the
testament Exhibit D, as appears from the photographs, Exhibits E to E-l, in no
way proves fchat she was able to read a closely typed page, since the acts shown do
not require vision at close range. It must be remembered that with the natural
lenses removed, her eyes had lost the power of adjustment to near vision, the
substituted glass lenses being rigid and uncontrollable by her. Neither is the signing
of checks (Exhibits G to G-3) by her indicative of ability to see at normal reading
distances. Writing or signing of ones name, when sufficiently practiced, becomes
automatic, so that, one need only to have a rough indication of the place where the
signature is to be affixed in order to be able to write it. Indeed, a close examination
of the checks, amplified in the photograph, Exhibit O, et seq., reinforces the
contention of oppositors that the alleged testatrix could not see at normal reading
dis-, tance: the signatures in the checks are written far above the printed base,
lines, and the names of the payees as well as the amounts written do not appear to
be in the handwriting of the alleged testatrix, being in a much firmer and more fluid
hand than hers.

Thus, for all intents and purposes of the rules on probate, the deceased Gliceria
del Rosario was, as appellant oppositors contend, not unlike a blind testator, and
the due execution of her will would have required observance of the provisions of
Article 808 of the Civil Code.
ART. 808. If the testator is blind, the will shall be read to him twice; once, by one of the
subscribing witnesses, and again, by the notary public before whom the will is
acknowledged.

The rationale behind the requirement of reading the will to the testator if he is
blind or incapable of reading the will himself (as when he is illiterate), is to make
the provisions thereof known to him, so that he may be able to object if they are not
in accordance with his wishes. That the aim of the law is to insure that the
dispositions of the will are properly communicated to and understood by the
handicapped testator, thus making them truly reflective of his desire, is evidenced
by the requirement that the will should be read to the latter, not only once but
twice, by two different persons, and that the witnesses have to act within the range
of his (the testators) other senses.
18

19

In connection with the will here in question, there is nothing in the records to
show that the above requisites have been complied with. Clearly, as already stated,
the 1960 will sought to be probated suffers from infirmity that affects its due
execution.
We also find merit in the complaint of oppositors Lucio V. Garcia, et al., against
the denial by the probate court of their petition for the removal of Consuelo
Gonzales Vda. de Precilla as special administratrix of the estate of the deceased
Doa Gliceria (Petition, G.R. No. L-26615, Annex B).
The oppositors petition was based allegedly on the existence in the special
administratrix of an interest adverse to that of the estate. It was their contention
that through fraud her husband had caused the deceased Gliceria del Rosario to
execute a deed of sale, dated 10 January 1961, by virtue of which the latter
purportedly conveyed unto said Alfonso D. Precilla, married to Consuelo Gonzales y
Narciso, the ownership of 3 parcels of land and the improvements thereon, assessed
at P334,050.00, for the sum of P30,000.00.

In denying the petition, the probate court, in its order of 13 September 1966
(Annex P, Petition) reasoned out that since the properties were already sold no
longer form part of the estate. The conflict of interest would not be between the
estate and third parties, but among the different claimants of said properties, in
which case, according to the court, the participation of the special administratrix in
the action for annulment that may be brought would not be necessary.
The error in this line of reasoning lies in the fact that what was being questioned
was precisely the validity of the conveyance or sale of the properties. In short, if
proper, the action for annulment would have to be undertaken on behalf of the
estate by the special administratrix, affecting as it does the property or rights of the
deceased. For the rule is that only where there is no special proceeding for the
settlement of the estate of the deceased may the legal heirs commence an action
arising out of a right belonging to their ancestor.
20

21

There is no doubt that to settle the question of the due execution and validity of
the deed of sale, an ordinary and separate action would have to be instituted, the
matter not falling within the competence of the probate court. Considering the facts
then before it, i.e., the alleged deed of sale having been executed by Gliceria del
Rosario on 10 January 1961, when she was already practically blind; and that the
consideration of P30,000.00 seems to be unconscionably small for properties with a
total assessed value of P334,05.00, there was likelihood that a case for annulment
might indeed be filed against the estate or heirs of Alfonso Precilla. And the
administratrix, being the widow and heir of the alleged transferee, cannot be
expected to sue herself in an action to recover property that may turn out to belong
to the estate. Not only this, but the conduct of the special administratrix in
securing new copies of the owners duplicates of TCT Nos. 66201, 66202, and 66204,
without the courts knowledge or authority, and on the pretext that she needed them
in the preparation of the inventory of the estate, when she must have already
known by then that the properties covered therein were already conveyed to her
husband by the deceased, being the latters successor, and having the contract bind
the land through issuance of new titles in her husbands name cannot but expose
her to the charge of unfitness or unsuitableness to discharge the trust, justifying her
removal from the administration of the estate.
22

22a

With respect to the orders of the court a quo denying (1) the oppositors motion to
require the Hongkong and Shanghai Bank to report all withdrawals made against

the funds of the deceased after 2 September 1965 and (2) the motion for annotation
of a lis pendens notice on TCT Nos. 81735, 81736 and 81737, the same are to be
affirmed.
The probate court pointed out in its order of 22 October 1965 (Annex H) that it
could not have taken action on the complaint against the alleged withdrawals from
the bank deposits of the deceased, because as of that time the court had not yet been
apprised that such deposits exist. Furthermore, as explained by the special
administratrix in her pleading of 30 October 1965, the withdrawals referred to by
the oppositors could be those covered by checks issued in the name of Gliceria del
Rosario during her lifetime butcleared only after her death. That explanation, which
not only appears plausible but has not been rebutted by the petitioners-oppositors,
negates any charge of grave abuse in connection with the issuance of the order here
in question.
On the matter of lis pendens (G.R. No. L-26864), the provisions of the Rules of
Court are clear: notice of the pendency of an action may be recorded in the office of
the register of deeds of the province in which the property is situated, if the action
affects the title or the right of possession of (such) real property. In the case at
bar, the pending action which oppositors seek to annotate in the records of TCT Nos.
81735, 81736, and 81737 is the mandamus proceeding filed in this Court (G.R. No.
L-26615). As previously discussed in this opinion, however, that case is concerned
merely with the correctness of the denial by the probate court of the motion for the
removal of Consuelo Gonzales Vda. de Precilla as special administratrix of the
estate of the late Gliceria del Rosario. In short, the issue in controversy there is
simply the fitness or unfitness of said special administratrix to continue holding the
trust; it does not involve or affect at all the title to, or possession of, the properties
covered by said TCT Nos. 81735, 81736 and 81737. Clearly, the pendency of such
case (L-26615) is not an action that can properly be annotated in the record of the
titles to the properties.
23

FOR THE FOREGOING REASONS, the order of the court below allowing to
probate the alleged 1960 will of Gliceria A. del Rosario is hereby reversed and set
aside. The petition in G.R. No. L-26615 being meritorious, the appealed order is set
aside and the court below is ordered to remove the administratrix, Consuelo
Gonzales Vda. de Precilla, and appoint one of the heirs intestate of the deceased
Doa Gliceria Avelino del Rosario as special administrator for the purpose of

instituting action on behalf of her estate to recover the properties allegedly sold by
her to the late Alfonso D. Precilla. And in Case G.R. No. L-26864, petition is
dismissed. No costs.

concur.

Concepcion, C.J., Dizon, Makalintal. Fernando,Teehankee and Villamor, JJ.,

Zaldivar and Castro, JJ., took no part.

Barredo, J., is on leave.
Order reversed and set aside.
Notes.(a) Adverse interest as ground for removal an executor or administrator.
Conflict between the interest of the executor or administrator and that of the decedent in
property is ground for the removal of the executor or administrator. Such conflict exists
where the executor or administrator asserts personal title to certain stocks standing in the
name of the decedent (In re Estate of Borromeo, L-6363, Sept. 15, 1955, 51 O.G. 5145). It
may not, however be said to exist simply because the attorney representing the
administrator was formerly administrator of the same estate who was removed by the court
on the ground of adverse interest (Degala vs. Ceniza, 78 Phil. 791).

G.R. No. 74695. September 14, 1993.

In the Matter of the Probate of the Last Will and Testament of the Deceased Brigido
Alvarado, CESAR ALVARADO, petitioner, vs. HON. RAMON G. GAVIOLA, JR.,
Presiding Justice, HON. MA. ROSARIO QUETULIO LOSA and HON. LEONOR
INES LUCIANO, Associate Justices, Intermediate Appellate Court, First Division
(Civil Cases), and BAYANI MA. RINO, respondents.
Civil Law; Wills; Article 808 applies not only to blind testators but also, to those who,
for one reason or another, are incapable of reading their wills.Clear from the foregoing is
that Art. 808 applies not only to blind testators but also to those who, for one reason or
another, are incapable of reading the(ir) will(s). Since Brigido Alvarado was incapable of
reading the final drafts of his will and codicil on the separate occasions of their execution
due to his poor, defective, or blurred vision, there can be no other course for us but to

conclude that Brigido Alvarado comes within the scope of the term blind as it is used in
Art. 808. Unless the contents were read to him, he had no way of ascertaining whether or
not the lawyer who drafted the will and codicil did so conformably with his instructions.
Same; Same; Same; The purpose of reading the will twice is to make known to the
incapacitated testator the contents of the document before signing and to give him an
opportunity to object if anything is contrary to his instructions.Article 808 requires that in
case of testators like Brigido Alvarado, the will shall be read twice; once, by one of the
instrumental witnesses and, again, by the notary public before whom the will was
acknowledged. The purpose is to make known to the incapacitated testator the contents of
the document before signing and to give him an opportunity to object if anything is contrary
to his instructions.
Same; Same; Same; Same; Court held in a number of occasions that substantial
compliance is acceptable where the purpose of the law has been satisfied.This Court has
held in a number of occasions that substantial compliance is acceptable where the purpose
of the law has been satisfied, the reason being that the solemnities surrounding the
execution of wills are intended to protect the testator from all kinds of fraud and trickery
but are never intended to be so rigid and inflexible as to destroy the testamentary privilege.
Same; Same; Same; Same; Although there should be strict compliance with the
substantial requirements of the law in order to insure the authenticity of the will, the formal
imperfections should be brushed aside when they do not affect its purpose and which, when
taken into account, may only defeat the testators will.The spirit behind the law was served
though the letter was not. Although there should be strict compliance with the substantial
requirements of the law in order to insure the authenticity of the will, the formal
imperfections should be brushed aside when they do not affect its purpose and which, when
taken into account, may only defeat the testators will.

PETITION for review on certiorari of the decision of the Court of Appeals.

The facts are stated in the opinion of the Court.
Vicente R. Redor for petitioner.
Bayani Ma. Rino for and in his own behalf.
BELLOSILLO, J.:

Before us is an appeal from the Decision dated 11 April 1986 of the First Civil
Cases Division of the then Intermediate Appellate Court, now Court of Appeals,
which affirmed the Order dated 27 June 1983 of the Regional Trial Court of Sta.
Cruz, Laguna, admitting to probate the last will and testament with codicil of the
late Brigido Alvarado.
1

On 5 November 1977, the 79-year old Brigido Alvarado executed a notarial will
entitled Huling Habilin wherein he disinherited an illegitimate son (petitioner)
and expressly revoked a previously executed holographic will at the time awaiting
probate before Branch 4 of the Regional Trial Court of Sta. Cruz, Laguna.
As testified to by the three instrumental witnesses, the notary public and by
private respondent who were present at the execution, the testator did not read the
final draft of the will himself. Instead, private respondent, as the lawyer who
drafted the eightpaged document, read the same aloud in the presence of the
testator, the three instrumental witnesses and the notary public. The latter four
followed the reading with their own respective copies previously furnished them.
Meanwhile, Brigidos holographic will was subsequently admitted to probate on 9
December 1977. On the 29th day of the same month, a codicil entitled Kasulatan
ng Pagbabago sa Ilang Pagpapasiya na Nasasaad sa Huling Habilin na May Petsa
Nobiembre 5, 1977 ni Brigido Alvarado was executed changing some dispositions in
the notarial will to generate cash for the testators eye operation. Brigido was then
suffering from glaucoma. But the disinheritance and revocatory clauses were
unchanged. As in the case of the notarial will, the testator did not personally read
the final draft of the codicil. Instead, it was private respondent who read it aloud in
his presence and in the presence of the three instrumental witnesses (same as those
of the notarial will) and the notary public who followed the reading using their own
copies.
A petition for the probate of the notarial will and codicil was filed upon the
testators death on 3 January 1979 by private respondent as executor with the
Court of First Instance, now Regional Trial Court, of Siniloan, Laguna. Petitioner, in
turn, filed an Opposition on the following grounds: that the will sought to be
probated was not executed and attested as required by law; that the testator was
insane or otherwise mentally incapacitated to make a will at the time of its
execution due to senility and old age; that the will was executed under duress, or
5

influence of fear or threats; that it was procured by undue and improper pressure
and influence on the part of the beneficiary who stands to get the lions share of the
testators estate; and lastly, that the signature of the testator was procured by fraud
or trick.
When the oppositor (petitioner) failed to substantiate the grounds relied upon in
the Opposition, a Probate Order was issued on 27 June 1983 from which an appeal
was made to respondent court. The main thrust of the appeal was that the deceased
was blind within the meaning of the law at the time his Huling Habilin and the
codicil attached thereto were executed; that since the reading required by Art. 808 of
the Civil Code was admittedly not complied with, probate of the deceaseds last will
and codicil should have been denied.
On 11 April 1986, the Court of Appeals rendered the decision under review with
the following findings: that Brigido Alvarado was not blind at the time his last will
and codicil were executed; that assuming his blindness, the reading requirement of
Art. 808 was substantially complied with when both documents were read aloud to
the testator with each of the three instrumental witnesses and the notary public
following the reading with their respective copies of the instruments. The appellate
court then concluded that although Art. 808 was not followed to the letter, there was
substantial compliance since its purpose of making known to the testator the
contents of the drafted will was served.
The issues now before us can be stated thus: Was Brigido Alvarado blind for
purposes of Art. 808 at the time his Huling Habilin and its codicil were executed?
If so, was the doublereading requirement of said article complied with?
Regarding the first issue, there is no dispute on the following facts: Brigido
Alvarado was not totally blind at the time the will and codicil were executed.
However, his vision on both eyes was only of counting fingers at three (3) feet by
reason of the glaucoma which he had been suffering from for several years and even
prior to his first consultation with an eye specialist on 14 December 1977.
The point of dispute is whether the foregoing circumstances would qualify Brigido
as a blind testator under Art. 808 which reads:

Art. 808. If the testator is blind, the will shall be read to him twice; once, by one of the
subscribing witnesses, and again, by the notary public before whom the will is
acknowledged.

Petitioner contends that although his father was not totally blind when the will and
codicil were executed, he can be so considered within the scope of the term as it is
used in Art. 808. To support his stand, petitioner presented before the trial court a
medical certificate issued by Dr. Salvador R. Salceda, Director of the Institute of
Opthalmology (Philippine Eye Research Institute), the contents of which were
interpreted in laymans terms by Dr. Ruperto Roasa, whose expertise was admitted
by private respondent. Dr. Roasa explained that although the testator could
visualize fingers at three (3) feet, he could no longer read either printed or
handwritten matters as of 14 December 1977, the day of his first consultation.
6

On the other hand, the Court of Appeals, contrary to the medical testimony, held
that the testator could still read on the day the will and the codicil were executed
but chose not to do so because of poor eyesight. Since the testator was still capable
of reading at that time, the court a quo concluded that Art. 808 need not be
complied with.
9

We agree with petitioner in this respect.

Regardless of respondents staunch contention that the testator was still capable
of reading at the time his will and codicil were prepared, the fact remains and this
was testified to by his witnesses, that Brigido did not do so because of his
poor, defective, or blurred vision making it necessary for private respondent
to do the actual reading for him.
10

11

12

The following pronouncement in Garcia vs. Vasquez provides an insight into the
scope of the term blindness as used in Art. 808, to wit:
13

The rationale behind the requirement of reading the will to the testator if he is blind or
incapable of reading the will himself (as when he is illiterate), is to make the provisions
thereof known to him, so that he may be able to object if they are not in accordance with his
wishes x x x x

Clear from the foregoing is that Art. 808 applies not only to blind testators but also
to those who, for one reason or another, are incapable of reading the(ir) will(s).

Since Brigido Alvarado was incapable of reading the final drafts of his will and
codicil on the separate occasions of their execution due to his poor, defective, or
blurred vision, there can be no other course for us but to conclude that Brigido
Alvarado comes within the scope of the term blind as it is used in Art. 808. Unless
the contents were read to him, he had no way of ascertaining whether or not the
lawyer who drafted the will and codicil did so conformably with his instructions.
Hence, to consider his will as validly executed and entitled to probate, it is essential
that we ascertain whether Art. 808 had been complied with.
Article 808 requires that in case of testators like Brigido Alvarado, the will shall
be read twice; once, by one of the instrumental witnesses and, again, by the notary
public before whom the will was acknowledged. The purpose is to make known to
the incapacitated testator the contents of the document before signing and to give
him an opportunity to object if anything is contrary to his instructions.
That Art. 808 was not followed strictly is beyond cavil. Instead of the notary
public and an instrumental witness, it was the lawyer (private respondent) who
drafted the eight-paged will and the five-paged codicil who read the same aloud to
the testator, and read them only once, not twice as Art. 808 requires. Private
respondent however insists that there was substantial compliance and that the
single reading suffices for purposes of the law. On the other hand, petitioner
maintains that the only valid compliance is a strict compliance or compliance to the
letter and since it is admitted that neither the notary public nor an instrumental
witness read the contents of the will and codicil to Brigido, probate of the latters
will and codicil should have been disallowed.
We sustain private respondents stand and necessarily, the petition must be
denied.
This Court has held in a number of occasions that substantial compliance is
acceptable where the purpose of the law has been satisfied, the reason being that
the solemnities surrounding the execution of wills are intended to protect the
testator from all kinds of fraud and trickery but are never intended to be so rigid
and inflexible as to destroy the testamentary privilege.
14

In the case at bar, private respondent read the testators will and codicil aloud in
the presence of the testator, his three instrumental witnesses, and the notary

public. Prior and subsequent thereto, the testator affirmed, upon being asked, that
the contents read corresponded with his instructions. Only then did the signing and
acknowledgement take place. There is no evidence, and petitioner does not so allege,
that the contents of the will and codicil were not sufficiently made known and
communicated to the testator. On the contrary, with respect to the Huling Habilin,
the day of the execution was not the first time that Brigido had affirmed the truth
and authenticity of the contents of the draft. The uncontradicted testimony of Atty.
Rino is that Brigido Alvarado already acknowledged that the will was drafted in
accordance with his expressed wishes even prior to 5 November 1977 when Atty.
Rino went to the testators residence precisely for the purpose of securing his
conformity to the draft.
15

Moreover, it was not only Atty. Rino who read the documents on 5 November and
29 December 1977. The notary public and the three instrumental witnesses likewise
read the will and codicil, albeit silently. Afterwards, Atty. Nonia de la Pena (the
notary public) and Dr. Crescente O. Evidente (one of the three instrumental
witnesses and the testators physician) asked the testator whether the contents of
the documents were of his own free will. Brigido answered in the affirmative. With
four persons following the reading word for word with their own copies, it can be
safely concluded that the testator was reasonably assured that what was read to
him (those which he affirmed were in accordance with his instructions), were the
terms actually appearing on the typewritten documents. This is especially true
when we consider the fact that the three instrumental witnesses were persons
known to the testator, one being his physician (Dr. Evidente) and another
(Potenciano C. Ranieses) being known to him since childhood.
16

The spirit behind the law was served though the letter was not. Although there
should be strict compliance with the substantial requirements of the law in order to
insure the authenticity of the will, the formal imperfections should be brushed aside
when they do not affect its purpose and which, when taken into account, may only
defeat the testators will.
17

As a final word to convince petitioner of the propriety of the trial courts Probate
Order and its affirmance by the Court of Appeals, we quote the following
pronouncement inAbangan v. Abangan, to wit:
18

The object of the solemnities surrounding the execution of wills is to close the door against
bad faith and fraud, to avoid the substitution of wills and testaments and to guaranty their
truth and authenticity. Therefore the laws on the subject should be interpreted in such a
way as to attain these primordial ends. But, on the other hand, also one must not lose sight
of the fact that it is not the object of the law to restrain and curtail the exercise of the right to
make a will. So when an interpretation already given assures such ends, any other
interpretation whatsoever, that adds nothing but demands more requisites entirely
unnecessary, useless and frustrative of the testators will, must be disregarded (italics
supplied).

Brigido Alvarado had expressed his last wishes in clear and unmistakable terms in
his Huling Habilin and the codicil attached thereto. We are unwilling to cast these
aside for the mere reason that a legal requirement intended for his protection was
not followed strictly when such compliance had been rendered unnecessary by the
fact that the purpose of the law, i.e., to make known to the incapacitated testator
the contents of the draft of his will, had already been accomplished. To reiterate,
substantial compliance suffices where the purpose has been served.
WHEREFORE, the petition is DENIED and the assailed Decision of respondent
Court of Appeals dated 11 April 1986 is AFFIRMED. Considering the length of time
that this case has remained pending, this decision is immediately executory. Costs
against petitioner.
SO ORDERED.
Cruz (Chairman), Grio-Aquino, Davide, Jr. andQuiason, JJ., concur.
Petition denied. Appealed decision affirmed.
Note.When the authenticity of the will is not being questioned, there is no
necessity of presenting the three witnesses required under Article 811 of the Civil
Code (Rivera vs. Intermediate Appellate Court, 182 SCRA 322).
o0o

G.R. No. 103554. May 28, 1993.

TEODORO CANEDA, LORENZA CANEDA, TERESA CANEDA, JUAN

CABALLERO, AUREA CABALLERO, OSCAR LAROSA, HELEN CABALLERO,
SANTOS CABALLERO, PABLO CABALLERO, VICTOR RAGA, MAURICIA RAGA,
QUIRICA RAGA, RUPERTO ABAPO, represented herein by his Attorney-in-Fact,
ARMSTICIA ABAPO VELANO, and CONSESO CANEDA, represented herein by
his heirs, JESUS CANEDA, NATIVIDAD CANEDA and ARTURO CANEDA,
petitioners, vs. HON. COURT OF APPEALS and WILLIAM CABRERA, as Special
Administrator of the Estate of Mateo Caballero, respondents.
**

Wills and Succession; There are two (2) kinds of wills.In addition, the ordinary will
must be acknowledged before a notary public by the testator and the attesting witnesses,
hence it is likewise known as a notarial will. Where the testator is deaf or a deaf-mute,
Article 807 requires that he must personally read the will, if able to do so. Otherwise, he
should designate two persons who will read the will and communicate its contents to him in
a practicable manner. On the other hand, if the testator is blind, the will should be read to
him twice; once, by anyone of the witnesses thereto, and then again, by the notary public

before whom it is acknowledged. The other kind of will is the holographic will, which Article
810 defines as one that is entirely written, dated, and signed by the hand of the testator
himself. This kind of will, unlike the ordinary type, requires no attestation by witnesses. A
common requirement in both kinds of wills is that they should be in writing and must have
been executed in a language or dialect known to the testator.
Same; Attestation clause valid even if in a language not known to testator.However, in
the case of an ordinary or attested will, its attestation clause need not be written in a
language or dialect known to the testator since it does not form part of the testamentary
disposition. Furthermore, the language used in the attestation clause likewise need not
even be known to the attesting witnesses. The last paragraph of Article 805 merely requires
that, in such a case, the attestation clause shall be interpreted to said witnesses.
Same; Purposes of attestation clause.The purpose of the law in requiring the clause to
state the number of pages on which the will is written is to safeguard against possible
interpolation or omission of one or some of its pages and to prevent any increase or decrease
in the pages; whereas the subscription of the signatures of the testator and the attesting
witnesses is made for the purpose of authentication and identification, and thus indicates
that the will is the very same instrument executed by the testator and attested to by the
witnesses.
Same; Same.Further, by attesting and subscribing to the will, the witnesses thereby
declare the due execution of the will as embodied in the attestation clause. The attestation
clause, therefore, provides strong legal guaranties for the due execution of a will and to
insure the authenticity thereof. As it appertains only to the witnesses and not to the
testator, it need be signed only by them. Where it is left unsigned, it would result in the
invalidation of the will as it would be possible and easy to add the clause on a subsequent
occasion in the absence of the testator and the witnesses.
Same; Words and Phrases; Attestation and Subscription distinguished.It will be
noted that Article 805 requires that the witnesses should both attest and subscribe to the
will in the presence of the testator and of one another. Attestation and subscription
differ in meaning. Attestation is the act of the senses, while subscription is the act of the
hand. The former is mental, the latter mechanical, and to attest a will is to know that it
was published as such, and to certify the facts required to constitute an actual and legal
publication; but to subscribe a paper published as a will is only to write on the same paper
the names of the witnesses, for the sole purpose of identification.
Same; Attestation clause which does not state that testament was signed by the
witnesses in the presence of one another and of the testator renders the will null and void.

What is fairly apparent upon a careful reading of the attestation clause herein assailed is
the fact that while it recites that the testator indeed signed the will and all its pages in the
presence of the three attesting witnesses and states as well the number of pages that were
used, the same does not expressly state therein the circumstance that said witnesses
subscribed their respective signatures to the will in the presence of the testator and of each
other. The phrase and he has signed the same and every page thereof, on the spaces
provided for his signature and on the left hand margin, obviously refers to the testator and
not the instrumental witnesses as it is immediately preceded by the words as his Last Will
and Testament. On the other hand, although the words in the presence of the testator and
in the presence of each and all of us may, at first blush, appear to likewise signify and refer
to the witnesses, it must, however, be interpreted as referring only to the testator signing in
the presence of the witnesses since said phrase immediately follows the words he has
signed the same and every page thereof, on the spaces provided for his signature and on the
left hand margin. What is then clearly lacking, in the final logical analysis, is the statement
that the witnesses signed the will and every page thereof in the presence of the testator and of
one another. It is our considered view that the absence of that statement required by law is
a fatal defect or imperfection which must necessarily result in the disallowance of the will
that is here sought to be admitted to probate.
Same; Mere defects in form in the attestation clause do not render will void.We stress
once more that under Article 809, the defects or imperfections must only be with respect to
the form of the attestation or the language employed therein. Such defects or imperfections
would not render a will invalid should it be proved that the will was really executed and
attested in compliance with Article 805. In this regard, however, the manner of proving the
due execution and attestation has been held to be limited to merely an examination of the
will itself without resorting to evidence aliunde, whether oral or written.
Same; Same; Defects in attestation clause which require submission of parol evidence
not mere defects of form.In the case at bar, contrarily, proof of the acts required to have
been performed by the attesting witnesses can be supplied only by extrinsic evidence
thereof, since an overall appreciation of the contents of the will yields no basis whatsoever
from which such facts may be plausibly deduced. What private respondent insists on are the
testimonies of his witnesses alleging that they saw the compliance with such requirements
by the instrumental witnesses, oblivious of the fact that he is thereby resorting to extrinsic
evidence to prove the same and would accordingly be doing by indirection what in law he
cannot do directly.
Same; Same; Same.It may thus be stated that the rule, as it now stands, is that
omission which can be supplied by an examination of the will itself, without the need of
resorting to extrinsic evidence, will not be fatal and, correspondingly, would not obstruct the

allowance to probate of the will being assailed. However, those omissions which cannot be
supplied except by evidence aliunde would result in the invalidation of the attestation
clause and ultimat ely, of the will itself.

PETITION for review on certiorari of the decision of the Court of Appeals.

The facts are stated in the opinion of the Court.
Palma, Palma & Associates for petitioners.
Emilio Lumontad, Jr. for private respondent.
REGALADO, J.:
Presented for resolution by this Court in the present petition for review on certiorari
is the issue of whether or not the attestation clause contained in the last will and
testament of the late Mateo Caballero complies with the requirements of Article
805, in relation to Article 809, of the Civil Code.
The records show that on December 5, 1978, Mateo Caballero, a widower without
any children and already in the twilight years of his life, executed a last will and
testament at his residence in Talisay, Cebu before three attesting witnesses,
namely, Cipriano Labuca, Gregorio Cabando and Flaviano Toregosa. The said
testator was duly assisted by his lawyer, Atty. Emilio Lumontad, and a notary
public, Atty. Filoteo Manigos, in the preparation of that last will. It was declared
therein, among other things, that the testator was leaving by way of legacies and
devises his real and personal properties to Presentacion Gaviola, Angel Abatayo,
Rogelio Abatayo, Isabelito Abatayo, Benoni G. Cabrera and Marcosa Alcantara, all
of whom do not appear to be related to the testator.
1

Four months, later, or on April 4, 1979, Mateo Caballero himself filed a petition
docketed as Special Proceeding No. 3899-R before Branch II of the then Court of
First Instance of Cebu seeking the probate of his last will and testament. The
probate court set the petition for hearing on August 20, 1979 but the same and
subsequent scheduled hearings were postponed for one reason or another. On May
29, 1980, the testator passed away before his petition could finally be heard by the
probate court. On February 25, 1981, Benoni Cabrera, one of the legatees named in
the will, sought his appointment as special administrator of the testators estate,
3

the estimated value of which was P24,000.00, and he was so appointed by the
probate court in its order of March 6, 1981.
4

Thereafter, herein petitioners, claiming to be nephews and nieces of the testator,

instituted a second petition, entitled In the Matter of the Intestate Estate of Mateo
Caballero and docketed as Special Proceeding No. 3965-R, before Branch IX of the
aforesaid Court of First Instance of Cebu. On October 18, 1982, herein petitioners
had their said petition for intestate proceedings consolidated with Special
Proceeding No. 3899-R in Branch II of the Court of First Instance of Cebu and
opposed thereat the probate of the testators will and the appointment of a special
administrator for his estate.
5

Benoni Cabrera died on February &, 1982 hence the probate court, now known as
Branch XV of the Regional Trial Court of Cebu, appointed William Cabrera as
special administrator on June 21, 1983. Thereafter, on July 20, 1983, it issued an
order for the return of the records of Special Proceeding No. 3965-R to the archives
since the testate proceedings for the probate of the will had to be heard and resolved
first. On March 26, 1984 the case was reraffled and eventually assigned to Branch
XII of the Regional Trial Court of Cebu where it remained until the conclusion of
the probate proceedings.
6

In the course of the hearing in Special Proceeding No. 3899-R, herein petitioners
appeared as oppositors and objected to the allowance of the testators will on the
ground that on the alleged date of its execution, the testator was already in a poor
state of health such that he could not have possibly executed the same. Petitioners
likewise reiterated the issue as to the genuineness of the signature of the testator
therein.
7

On the other hand, one of the attesting witnesses, Cipriano Labuca, and the notary
public, Atty. Filoteo Manigos, testified that the testator executed the will in question
in their presence while he was of sound and disposing mind and that, contrary to
the assertions of the oppositors, Mateo Caballero was in good health and was not
unduly influenced in any way in the execution of his will. Labuca also testified that
he and the other witnesses attested and signed the will in the presence of the
testator and of each other. The other two attesting witnesses were not presented in
the probate hearing as they had died by then.
8

On April 5, 1988, the probate court rendered a decision declaring the will in
question as the last will and testament of the late Mateo Caballero, on the
ratiocination that:
x x x The self-serving testimony of the two witnesses of the oppositors cannot overcome the
positive testimonies of Atty. Filoteo Manigos and Cipriano Labuca who clearly told the
Court that indeed Mateo Caballero executed this Last Will and Testament now marked
Exhibit C on December 5, 1978. Moreover, the fact that it was Mateo Caballero who
initiated the probate of his Will during his lifetime when he caused the filing of the original
petition now marked Exhibit D clearly underscores the fact that this was indeed his Last
Will. At the start, counsel for the oppositors manifested that he would want the signature of
Mateo Caballero in Exhibit C examined by a handwriting expert of the NBI but it would
seem that despite their avowal and intention for the examination of this signature of Mateo
Caballero in Exhibit C, nothing came out of it because they abandoned the idea and
instead presented Aurea Caballero and Helen Caballero Campo as witnesses for the
oppositors.
All told, it is the finding of this Court that Exhibit C is the Last Will and Testament of
Mateo Caballero and that it was executed in accordance with all the requisites of law.
9

Undaunted by said judgment of the probate court, petitioners elevated the case to
the Court of Appeals in CA-G.R. CV No. 19669. They asserted therein that the will
in question is null and void for the reason that its attestation clause is fatally
defective since it fails to specifically state that the instrumental witnesses to the
will witnessed the testator signing the will in their presence and that they also
signed the will and all the pages thereof in the presence of the testator and of one
another.
On October 15, 1991, respondent court promulgated its decision affirming that of
the trial court, and ruling that the attestation clause in the last will of Mateo
Caballero substantially complies with Article 805 of the Civil Code, thus:
10

The question therefore is whether the attestation clause in question may be considered as
having substantially complied with the requirements of Art. 805 of the Civil Code. What
appears in the attestation clause which the oppositors claim to be defective is we do certify
that the testament was read by him and the testator, Mateo Caballero, has published unto
us the foregoing will consisting of THREE PAGES, including the acknowledgment, each
page numbered correlatively in letters on the upper part of each page, as his Last Will and
Testament, and he has signed the same and every page thereof, on the spaces provided for

his signature and on the left hand margin in the presence of the said testator and in the
presence of each and all of us (Italics supplied).
To our thinking, this is sufficient compliance and no evidence need be presented to
indicate the meaning that the said will was signed by the testator and by them (the
witnesses) in the presence of all of them and of one another. Or as the language of the law
would have it that the testator signed the will in the presence of the instrumental
witnesses, and that the latter witnessed and signed the will and all the pages thereof in the
presence of the testator and of one another. If not completely or ideally perfect in
accordance with the wordings of Art. 805 but (sic) the phrase as formulated is in substantial
compliance with the requirement of the law.
11

Petitioners moved for the reconsideration of said ruling of respondent court, but the
same was denied in the latters resolution of January 14, 1992, hence this appeal
now before us.
12

Petitioners assert that respondent court has ruled upon said issue in a manner not
in accord with the law and the settled jurisprudence on the matter and are now
questioning once more, on the same ground as that raised before respondent court,
the validity of the attestation clause in the last will of Mateo Caballero.
We find the present petition to be meritorious, as we shall shortly hereafter
explain, after some prefatory observations which we feel should be made in aid of
the rationale for our resolution of the controversy.
1. 1.A will has been defined as a species of conveyance whereby a person is permitted,
with the formalities prescribed by law, to control to a certain degree the disposition
of his estate after his death. Under the Civil Code, there are two kinds of wills
which a testator may execute. The first kind is the ordinary or attested will, the
execution of which is governed by Articles 804 to 809 of the Code. Article 805
requires that:
13

14

Art. 805. Every will, other than a holographic will, must be subscribed at the end thereof
by the testator himself or by the testators name written by some other person in his
presence, and by his express direction, and attested and subscribed by three or more
credible witnesses in the presence of the testator and of one another.
The testator or the person requested by him to write his name and the instrumental
witnesses of the will, shall also sign, as aforesaid, each and every page thereof, except the

last, on the left margin, and all the pages shall be numbered correlatively in letters placed
on the upper part of each page.
The attestation shall state the number of pages used upon which the will is written, and
the fact that the testator signed the will and every page thereof, or caused some other
person to write his name, under his express direction, in the presence of the instrumental
witnesses, and that the latter witnessed and signed the will and all the pages thereof in the
presence of the testator and of one another.
If the attestation clause is in a language not known to the witnesses, it shall be
interpreted to them.

In addition, the ordinary will must be acknowledged before a notary public by the
testator and the attesting witnesses, hence it is likewise known as a notarial will.
Where the testator is deaf or a deaf-mute, Article 807 requires that he must
personally read the will, if able to do so. Otherwise, he should designate two persons
who will read the will and communicate its contents to him in a practicable manner.
On the other hand, if the testator is blind, the will should be read to him twice;
once, by anyone of the witnesses thereto, and then again, by the notary public before
whom it is acknowledged.
15

16

The other kind of will is the holographic will, which Article 810 defines as one
that is entirely written, dated, and signed by the hand of the testator himself. This
kind of will, unlike the ordinary type, requires no attestation by witnesses. A
common requirement in both kinds of wills is that they should be in writing and
must have been executed in a language or dialect known to the testator.
17

However, in the case of an ordinary or attested will, its attestation clause need
not be written in a language or dialect known to the testator since it does not form
part of the testamentary disposition. Furthermore, the language used in the
attestation clause likewise need not even be known to the attesting witnesses. The
last paragraph of Article 805 merely requires that, in such a case, the attestation
clause shall be interpreted to said witnesses.
18

An attestation clause refers to that part of an ordinary will whereby the attesting
witnesses certify that the instrument has been executed before them and to the
manner of the execution of the same. It is a separate memorandum or record of the
facts surrounding the conduct of execution and once signed by the witnesses, it gives
19

affirmation to the fact that compliance with the essential formalities required by
law has been observed. It is made for the purpose of preserving in a permanent
form a record of the fact that attended the execution of a particular will, so that in
case of failure of the memory of the attesting witnesses, or other casualty, such facts
may still be proved.
20

21

Under the third paragraph of Article 805, such a clause, the complete lack of
which would result in the invalidity of the will, should state (1) the number of pages
used upon which the will is written; (2) that the testator signed, or expressly caused
another to sign, the will and every page thereof in the presence of the attesting
witnesses; and (3) that the attesting witnesses witnessed the signing by the testator of
the will and all its pages, and that said witnesses also signed the will and every page
thereof in the presence of the testator and of one another.
22

The purpose of the law in requiring the clause to state the number of pages on
which the will is written is to safeguard against possible interpolation or omission of
one or some of its pages and to prevent any increase or decrease in the
pages; whereas the subscription of the signatures of the testator and the attesting
witnesses is made for the purpose of authentication and identification, and thus
indicates that the will is the very same instrument executed by the testator and
attested to by the witnesses.
23

24

Further, by attesting and subscribing to the will, the witnesses thereby declare
the due execution of the will as embodied in the attestation clause. The attestation
clause, therefore, provides strong legal guaranties for the due execution of a will and
to insure the authenticity thereof. As it appertains only to the witnesses and not to
the testator, it need be signed only by them. Where it is left unsigned, it would
result in the invalidation of the will as it would be possible and easy to add the
clause on a subsequent occasion in the absence of the testator and the witnesses.
25

26

27

28

In its report, the Code Commission commented on the reasons of the law for
requiring the formalities to be followed in the execution of wills, in the following
manner:
The underlying and fundamental objectives permeating the provisions on the law on wills
in this Project consists in the liberalization of the manner of their execution with the end in
view of giving the testator more freedom in expressing his last wishes, but with sufficient

safeguards and restrictions to prevent the commission of fraud and the exercise of undue
and improper pressure and influence upon the testator.
This objective is in accord with the modern tendency with respect to the formalities in
the execution of wills. x x x
29

1. 2.An examination of the last will and testament of Mateo Caballero shows that it is

comprised of three sheets all of which have been numbered correlatively, with the
left margin of each page thereof bearing the respective signatures of the testator
and the three attesting witnesses. The part of the will containing the testamentary
dispositions is expressed in the Cebuano-Visayan dialect and is signed at the foot
thereof by the testator. The attestation clause in question, on the other hand, is
recited in the English language and is likewise signed at the end thereof by the
three attesting witnesses thereto. Since it is the proverbial bone of contention, we
reproduce it again for facility of reference:
30

We, the undersigned attesting Witnesses, whose Residences and postal addresses appear
on the Opposite of our respective names, we do hereby certify that the Testament was read
by him and the testator, MATEO CABALLERO, has published unto us the foregoing Will
consisting of THREE PAGES, including the Acknowledgment, each page numbered
correlatively in letters on the upper part of each page, as his Last Will and Testament and
he has signed the same and every page thereof, on the spaces provided for his signature and
on the left hand margin, in the presence of the said testator and in the presence of each and
all of us.

It will be noted that Article 805 requires that the witnesses should both attest and
subscribe to the will in the presence of the testator and of one another. Attestation
and subscription differ in meaning. Attestation is the act of the senses, while
subscription is the act of the hand. The former is mental, the latter mechanical, and
to attest a will is to know that it was published as such, and to certify the facts
required to constitute an actual and legal publication; but to subscribe a paper
published as a will is only to write on the same paper the names of the witnesses,
for the sole purpose of identification.
31

In Taboada vs. Rosal, we clarified that attestation consists in witnessing the

testators execution of the will in order to see and take note mentally that those
things are done which the statute requires for the execution of a will and that the
signature of the testator exists as a fact. On the other hand, subscription is the
signing of the witnesses names upon the same paper for the purpose of
32

identification of such paper as the will which was executed by the testator. As it
involves a mental act, there would be no means, therefore, of ascertaining by a
physical examination of the will whether the witnesses had indeed signed in the
presence of the testator and of each other unless this is substantially expressed in
the attestation.
It is contended by petitioners that the aforequoted attestation clause, in
contravention of the express requirements of the third paragraph of Article 805 of
the Civil Code for attestation clauses, fails to specifically state the fact that the
attesting witnesses witnessed the testator sign the will and all its pages in their
presence and that they, the witnesses, likewise signed the will and every page
thereof in the presence of the testator and of each other. We agree.
What is fairly apparent upon a careful reading of the attestation clause herein
assailed is the fact that while it recites that the testator indeed signed the will and
all its pages in the presence of the three attesting witnesses and states as well the
number of pages that were used, the same does not expressly state therein the
circumstance that said witnesses subscribed their respective signatures to the will
in the presence of the testator and of each other.
The phrase and he has signed the same and every page thereof, on the spaces
provided for his signature and on the left hand margin, obviously refers to the
testator and not the instrumental witnesses as it is immediately preceded by the
words as his Last Will and Testament. On the other hand, although the words in
the presence of the testator and in the presence of each and all of us may, at first
blush, appear to likewise signify and refer to the witnesses, it must, however, be
interpreted as referring only to the testator signing in the presence of the witnesses
since said phrase immediately follows the words he has signed the same and every
page thereof, on the spaces provided for his signature and on the left hand margin.
What is then clearly lacking, in the final logical analysis, isthe statement that the
witnesses signed the will and every page thereof in the presence of the testator and of
one another.
It is our considered view that the absence of that statement required by law is a
fatal defect or imperfection which must necessarily result in the disallowance of the
will that is here sought to be admitted to probate. Petitioners are correct in pointing
out that the aforestated defect in the attestation clause obviously cannot be

characterized as merely involving the form of the will or the language used therein
which would warrant the application of the substantial compliance rule, as
contemplated in the pertinent provision thereon in the Civil Code, to wit:
Art. 809. In the absence of bad faith, forgery, or fraud, or undue and improper pressure and
influence, defects and imperfections in the form of attestation or in the language used
therein shall not render the will invalid if it is proved that the will was in fact executed and
attested in substantial compliance with all the requirements of article 805 (Italics
supplied.)

While it may be true that the attestation clause is indeed subscribed at the end
thereof and at the left margin of each page by the three attesting witnesses, it
certainly cannot be conclusively inferred therefrom that the said witnesses affixed
their respective signatures in the presence of the testator and of each other since, as
petitioners correctly observed, the presence of said signatures only establishes the
fact that it was indeed signed, but it does not prove that the attesting witnesses did
subscribe to the will in the presence of the testator and of each other. The execution
of a will is supposed to be one act so that where the testator and the witnesses sign
on various days or occasions and in various combinations, the will cannot be
stamped with the imprimatur of effectivity.
33

We believe that the following comment of former Justice J.B.L. Reyes regarding
Article 809, wherein he urged caution in the application of the substantial
compliance rule therein, is correct and should be applied in the case under
consideration, as well as to future cases with similar questions:
34

x x x The rule must be limited to disregarding those defects that can be supplied by an
examination of the will itself: whether all the pages are consecutively numbered; whether
the signatures appear in each and every page; whether the subscribing witnesses are three
or the will was notarized. All these are facts that the will itself can reveal, and defects or
even omissions concerning them in the attestation clause can be safely disregarded. But the
total number of pages, and whether all persons required to sign did so in the presence of
each other must substantially appear in the attestation clause, being the only check against
perjury in the probate proceedings. (Emphasis ours.)

1. 3.We stress once more that under Article 809, the defects or imperfections must only
be with respect to the form of the attestation or the language employed therein.
Such defects or imperfections would not render a will invalid should it be proved
that the will was really executed and attested in compliance with Article 805. In

this regard, however, the manner of proving the due execution and attestation has
been held to be limited to merely an examination of the will itself without resorting
to evidence aliunde, whether oral or written.

The foregoing considerations do not apply where the attestation clause totally omits
the fact that the attesting witnesses signed each and every page of the will in the
presence of the testator and of each other. In such a situation, the defect is not only
in the form or the language of the attestation clause but the total absence of a
specific element required by Article 805 to be specifically stated in the attestation
clause of a will. That is precisely the defect complained of in the present case since
there is no plausible way by which we can read into the questioned attestation
clause any statement, or an implication thereof, that the attesting witnesses did
actually bear witness to the signing by the testator of the will and all its pages and
that said instrumental witnesses also signed the will and every page thereof in the
presence of the testator and of one another.
35

Furthermore, the rule on substantial compliance in Article 809 cannot be invoked

or relied on by respondents since it presupposes that the defects in the attestation
clause can be cured or supplied by the text of the will or a consideration of matters
apparent therefrom which would provide the data not expressed in the attestation
clause or from which it may necessarily be gleaned or clearly inferred that the acts
not stated in the omitted textual requirements were actually complied with in the
execution of the will. In other words, the defects must be remedied by intrinsic
evidence supplied by the will itself.
In the case at bar, contrarily, proof of the acts required to have been performed by
the attesting witnesses can be supplied only by extrinsic evidence thereof, since an
overall appreciation of the contents of the will yields no basis whatsoever from
which such facts may be plausibly deduced. What private respondent insists on are
the testimonies of his witnesses alleging that they saw the compliance with such
requirements by the instrumental witnesses, oblivious of the fact that he is thereby
resorting to extrinsic evidence to prove the same and would accordingly be doing by
indirection what in law he cannot do directly.
4. Prior to the advent of the Civil Code on August 30, 1950, there was a
divergence of views as to which manner of interpretation should be followed in
resolving issues centering on compliance with the legal formalities required in the

execution of wills. The formal requirements were at that time embodied primarily in
Section 618 of Act No. 190, the Code of Civil Procedure. Said decision was later
amended by Act No. 2645, but the provisions respecting said formalities found in
Act No. 190 and the amendment thereto were practically reproduced and adopted in
the Civil Code.
One view advanced the liberal or substantial compliance rule. This was first laid
down in the case of Abangan vs. Abangan, where it was held that the object of the
solemnities surrounding the execution of wills is to close the door against bad faith
and fraud, to avoid substitution of wills and testaments and to guarantee their
truth and authenticity. Therefore, the laws on this subject should be interpreted in
such a way as to attain these primordial ends. Nonetheless, it was also emphasized
that one must not lose sight of the fact that it is not the object of the law to restrain
and curtail the exercise of the right to make a will, hence when an interpretation
already given assures such ends, any other interpretation whatsoever that adds
nothing but demands more requisites entirely unnecessary, useless and fnistrative
of the testators last will, must be disregarded. The subsequent cases of Avera vs.
Garcia, Aldaba vs. Roque, Unson vs. Abella, Pecson vs. Coronel, Fernandez vs.
Vergel de Dios, et al., and Nayve vs. Mojal, et al. all adhered to this position. The
other view which advocated the rule that statutes which prescribe the formalities
that should be observed in the execution of wills are mandatory in nature and are to
be strictly construed was followed in the subsequent cases of In the Matter of the
Estate of Saguinsin, In re Will of Andrada, Uy Coque vs. Sioca, In re Estate of
Neumark, and Sano vs. Quintana.
36

37

38

39

41

40

42

43

44

46

45

47

Gumban vs. Gorecho, et al., provided the Court with the occasion to clarify the
seemingly conflicting decisions in the aforementioned cases. In said case
of Gumban, the attestation clause had failed to state that the witnesses signed the
will and each and every page thereof on the left margin in the presence of the
testator. The will in question was disallowed, with these reasons therefor:
48

In support of their argument on the assignment of error above-mentioned, appellants rely

on a series of cases of this court beginning with (I)n the Matter of the (E)state of Saguinsin
([1920], 41 Phil., 875), continuing with In re Will of Andrada([1921], 42 Phil., 180), Uy
Coque vs. Navas L. Sioca ([1922], 43 Phil., 405), and In re Estate of Neumark ([1923], 46
Phil., 841), and ending with Sano vs. Quintana ([1925], 48 Phil., 506), Appellee counters
with the citation of a series of cases beginning with Abangan vs. Abangan ([1919], 40 Phil.,
476), continuing through Aldaba vs. Roque ([1922], 43 Phil. 378), and Fernandez vs. Vergel

de Dios ([1924], 46 Phil., 922), and culminating inNayve vs. Mojal and Aguilar ([1924], 47
Phil. 152). In its last analysis, our task is to contrast and, if possible, conciliate, the last two
decisions cited by opposing counsel, namely, those ofSano vs. Quintana, supra, and Nayve
vs. Mojal and Aguilar,supra.
In the case of Sano vs. Quintana, supra, it was decided that an attestation clause which
does not recite that the witnesses signed the will and each and every page thereof on the
left margin in the presence of the testator is defective, and such a defect annuls the will.
The case of Uy Coque vs. Sioca, supra, was cited, but the case of Nayve vs. Mojal and
Aguilar, supra, was not mentioned. In contrast, is the decision in Nayve vs. Mojal and
Aguilar, supra,wherein it was held that the attestation clause must state the fact that the
testator and the witnesses reciprocally saw the signing of the will, for such an act cannot be
proved by the mere exhibition of the will, if it is not stated therein. It was also held that the
fact that the testator and the witnesses signed each and every page of the will can be proved
also by the mere examination of the signatures appearing on the document itself, and the
omission to state such evident facts does not invalidate the will.
It is a habit of courts to reaffirm or distinguish previous cases; seldom do they admit
inconsistency in doctrine. Yet here, unless aided by casuistry of the extreme type, it would
be impossible to reconcile the Mojal and Quintana decisions. They are fundamentally at
variance. If we rely on one, we affirm. If we rely on the other, we reverse.
In resolving this puzzling question of authority, three outstanding points may be
mentioned. In the first place, the Mojal decision was concurred in by only four members of
the court, less than a majority, with two strong dissenting opinions; the Quintana decision
was concurred in by seven members of the court, a clear majority, with one formal dissent.
In the second place, the Mojal decision was promulgated in December, 1924, while the
Quintana decision was promulgated in December 1925; the Quintana decision was thus
subsequent in point of time. And in the third place, the Quintana decision is believed more
nearly to conform to the applicable provisions of the law.
The right to dispose of property by will is governed entirely by statute. The law of the
case is here found in section 61 of the Code of Civil Procedure, as amended by Act No. 2645,
and in section 634 of the same Code, as unamended. It is in part provided in section 61, as
amended that No will * * * shall be valid * * *unless * * *. It is further provided in the
same section that The attestation shall state the number of sheets or pages used, upon
which the will is written, and the fact that the testator signed the will and every page
thereof, or caused some other person to write his name, under his express direction, in the
presence of three witnesses, and the latter witnessed and signed the will and all pages
thereof in the presence of the testator and of each other. Codal section 634 provides that

The will shall be disallowed in either of the following cases: 1. If not executed
and attested as in this Act provided. The law not alone carefully makes use of the
imperative, but cautiously goes further and makes use of the negative, to enforce legislative
intention. It is not within the province of the courts to disregard the legislative purpose so
emphatically and clearly expressed.
We adopt and reaffirm the decision in the case of Sano vs. Quintana, supra, and, to the
extent necessary, modify the decision in the case of Nayve vs. Mojal and
Aguilar, supra. (Emphases in the original text).

But after the Gumban clarificatory pronouncement, there were decisions of the
Court that once more appeared to revive the seeming diversity of views that was
earlier threshed out therein. The cases of Quinto vs. Morata, Rodriguez vs. Alcala,
Echevarria vs. Sarmiento, and Testate Estate of Toray went the way of the ruling as
restated in Gumban. But De Gala vs. Gonzales, et al., Rey vs. Cartagena, De Ticson
vs. De Gorostiza, Sebastian vs. Panganiban, Rodriguez vs. Yap, Grey vs.
Fabia, Leynez vs. Leynez, Martir vs. Martir, Alcala vs. De Villa, Sabado vs.
Fernandez, Mendoza vs. Pilapil, and Lopez vs. Liboro, veered away from the strict
interpretation rule and established a trend toward an application of the liberal view.
49

51

50

52

53

55

58

56

59

62

54

57

60

63

61

64

The Code Commission, cognizant of such a conflicting welter of views and of the
undeniable inclination towards a liberal construction, recommended the codification
of the substantial compliance rule, as it believed this rule to be in accord with the
modern tendency to give a liberal approach to the interpretation of wills. Said rule
thus became what is now Article 809 of the Civil Code, with this explanation of the
Code Commission:
The present law provides for only one form of executing a will, and that is, in accordance
with the formalities prescribed by Section 618 of the Code of Civil Procedure as amended by
Act No. 2645. The Supreme Court of the Philippines had previously upheld the strict
compliance with the legal formalities and had even said that the provisions of Section 618 of
the Code of Civil Procedure, as amended regarding the contents of the attestation clause
were mandatory, and non-compliance therewith invalidated the will (Uy Coque vs. Sioca, 43
Phil. 405). These decisions necessarily restrained the freedom of the testator in disposing of
his property.
However, in recent years the Supreme Court changed its attitude and has become more
liberal in the interpretation of the formalities in the execution of wills. This liberal view is
enunciated in the cases of Rodriguez vs. Yap, G.R. No. 45924, May 18, 1939; Leynez vs.

Leynez, G.R. No. 46097, October 18, 1939;Martir vs. Martir, G.R. No. 46995, June 21, 1940;
and Alcala vs. Villa, G.R. No. 47351, April 18, 1941.
In the above mentioned decisions of our Supreme Court, it has practically gone back to
the original provisions of Section 618 of the Code of Civil Procedure before its amendment
by Act No. 2645 in the year 1916. To turn this attitude into a legislative declaration and to
attain the main objective of the proposed Code in the liberalization of the manner of
executing wills, article 829 of the Project is recommended, which reads:
ART. 829. In the absence of bad faith, forgery, or fraud, or undue and improper pressure and
influence, defects and imperfections in the form of attestation or in the language used therein shall
not render the will invalid if it is proved that the will was in fact executed and attested in substantial
compliance with all the requirements of article 829.
65

The so-called liberal rule, the Court said in Gil vs. Murciano, does not offer any
puzzle or difficulty, nor does it open the door to serious consequences. The later
decisions do tell us when and where to stop; they draw the dividing line with,
precision. They do not allow evidencealiunde to fill a void in any part of the
document or supply missing details that should appear in the will itself. They only
permit a probe into the will, an exploration into its confines, to ascertain its
meaning or to determine the existence or absence of the requisite formalities of law.
This clear, sharp limitation eliminates uncertainty and ought to banish any fear of
dire results.
66

It may thus be stated that the rule, as it now stands, is that omission which can
be supplied by an examination of the will itself, without the need of resorting to
extrinsic evidence, will not be fatal and, correspondingly, would not obstruct the
allowance to probate of the will being assailed. However, those omissions which
cannot be supplied except by evidence aliunde would result in the invalidation of the
attestation clause and ultimately, of the will itself.
67

WHEREFORE, the petition is hereby GRANTED and the impugned decision of

respondent court is hereby REVERSED and SET ASIDE. The court a quo is
accordingly directed to forthwith DISMISS its Special Proceeding No. 3899-R
(Petition for the Probate of the Last Will and Testament of Mateo Caballero) and to
REVIVE Special Proceeding No. 3965-R (In the Matter of the Intestate Estate of
Mateo Caballero) as an active case and thereafter duly proceed with the settlement
of the estate of the said decedent.

SO ORDERED.
Narvasa (C.J., Chairman), Padilla and Nocon, JJ.,concur.
Petition granted. Decision reversed and set aside.
Notes.Persons convicted of falsification of a document, perjury or false
testimony are disqualified from being witnesses to a will (People vs. Umali, 193
SCRA 493).
Failure to attach will to petition not critical where it was adduced in evidence
(Heirs of Fran vs. Salas, 210 SCRA 303).
o0o

G.R. No. 176943.October 17, 2008.*

DANILO ALUAD, LEONORA ALUAD, DIVINA ALUAD, PROSPERO ALUAD, and
CONNIE ALUAD, petitioners,vs. ZENAIDO ALUAD, respondent.
Civil Law; Ownership; For the right to dispose of a thing without other limitations than
those established by law is an attribute of ownership.The statement in the Deed of
Donation reading anytime during the lifetime of the DONOR or anyone of them who
should survive, they could use, encumber or even dispose of any or even all the
parcels of land herein donated means that Matilde retained ownership of the lots and
reserved in her the right to dispose them. For the right to dispose of a thing without other
limitations than those established by law is an attribute of ownership. The phrase in the
Deed of Donation or anyone of them who should survive is of course out of sync. For the
Deed of Donation clearly stated that it would take effect upon the death of the donor, hence,
said phrase could only have referred to the donor Matilde. Petitioners themselves concede
that such phrase does not refer to the donee, thus: x x x [I]t is well to point out that the last
provision (sentence) in the disputed paragraph should only refer to Matilde Aluad, the
donor, because she was the only surviving spouse at the time the donation was executed on
14 November 1981, as her husband Crispin Aluad [] had long been dead as early as 1975.
Same; Wills and Succession; Donation; The donation being then mortis causa, the
formalities of a will should have been observed but they were not, as it was witnessed by only
two, not three or more witnesses following Article 805 of the Civil Code.As the Court of
Appeals observed, x x x [t]hat the donation ismortis causa is fortified by Matildes acts of
possession as she continued to pay the taxes for the said properties which remained under
her name; appropriated the produce; and applied for free patents for which OCTs were
issued under her name. The donation being then mortis causa, the formalities of a will
should have been observed but they were not, as it was witnessed by only two, not three or
more witnesses following Article 805 of the Civil Code. Further, the witnesses did not even
sign the attestation clause the execution of which clause is a requirement separate from the
subscription of the will and the affixing of signatures on the left-hand margins of the pages
of the will.
Same; Same; An unsigned attestation clause results in an unattested will.x x x Article
805 particularly segregates the requirement that the instrumental witnesses sign each
page of the will from the requisite that the will be attested and subscribed by [the
instrumental witnesses]. The respective intents behind these two classes of signature[s] are
distinct from each other. The signatures on the left-hand corner of every page signify,
among others, that the witnesses are aware that the page they are signing forms part of the
will. On the other hand, the signatures to the attestation clause establish that

the witnesses are referring to the statements contained in the attestation clause itself.
Indeed, the attestation clause is separate and apart from the disposition of the will. An
unsigned attestation clause results in an unattested will. Even if the instrumental
witnesses signed the left-hand margin of the page containing the unsigned attestation
clause, such signatures cannot demonstrate these witnesses undertakings in the clause,
since the signatures that do appear on the page were directed towards a wholly different
avowal.
Same; Same; Every will must be acknowledged before a notary public by the testator
and the witnesses.The witnesses did not acknowledge the will before the notary public,
which is not in accordance with the requirement of Article 806 of the Civil Code that every
will must be acknowledged before a notary public by the testator and the witnesses. More.
The requirement that all the pages of the will must be numbered correlatively in letters
placed on the upper part of each page was not also followed.
Same; Same; Donations; The Deed of Donation which is, as already discussed, one of
mortis causa, not having followed the formalities of a will, it is void and transmitted no
right to petitioners mother.The Deed of Donation which is, as already discussed, one
of mortis causa, not having followed the formalities of a will, it is void and transmitted no
right to petitioners mother. But even assuming arguendo that the formalities were
observed, since it was not probated, no right to Lot Nos. 674 and 676 was transmitted to
Maria. Matilde thus validly disposed of Lot No. 674 to respondent by her last will and
testament, subject of course to the qualification that her (Matildes) will must be probated.
With respect to Lot No. 676, the same had, as mentioned earlier, been sold by Matilde to
respondent on August 26, 1991.
Civil Procedure; Appeals; As a general rule, points of law, theories, and issues not
brought to the attention of the trial court cannot be raised for the first time on appeal.
Petitioners failed to raise the issue of acquisitive prescription before the lower courts,
however, they having laid their claim on the basis of inheritance from their mother. As a
general rule, points of law, theories, and issues not brought to the attention of the trial
court cannot be raised for the first time on appeal. For a contrary rule would be unfair to
the adverse party who would have no opportunity to present further evidence material to
the new theory, which it could have done had it been aware of it at the time of the hearing
before the trial court.

PETITION for review on certiorari of a decision of the Court of Appeals.

The facts are stated in the opinion of the Court.

Jose S. Diloy, Jr. for petitioners.

Orlanda B. Lumawag for respondent.
CARPIO-MORALES,J.:
Petitioners mother, Maria Aluad (Maria), and respondent Zenaido Aluad were
raised by the childless spouses Matilde Aluad (Matilde) and Crispin Aluad
(Crispin).
Crispin was the owner of six lots identified as Lot Nos. 674, 675, 676, 677, 680,
and 682 of the Pilar Cadastre, Capiz. After Crispin died, his wife Matilde
adjudicated the lots to herself.1
On November 14, 1981, Matilde executed a document entitled Deed of Donation
of Real Property Inter Vivos2(Deed of Donation) in favor of petitioners mother
Maria3covering all the six lots which Matilde inherited from her husband Crispin.
The Deed of Donation provided:
That, for and in consideration of the love and affection of the DONOR [Matilde] for the
DONEE [Maria], the latter being adopted and hav[ing] been brought up by the former the
DONOR, by these presents, transfer and convey, BY WAY OF DONATION, unto the
DONEE the property above-described, to become effective upon the death of the
DONOR, but in the event that the DONEE should die before the DONOR, the
present donation shall be deemed rescinded and [of] no further force and effect;
Provided, however, that anytime during the lifetime of the DONOR or anyone of them who
should survive, they could use[,] encumber or even dispose of any or even all of the parcels
of land herein donated. (Emphasis and underscoring supplied)
4

On September 30, 1986, Original Certificates of Title over Lot Nos. 674 and 676
were issued in Matildes name.
On August 26, 1991, Matilde sold Lot No. 676 to respondent by a Deed of
Absolute Sale of Real Property.5
Subsequently or on January 14, 1992, Matilde executed a last will and
testament,6 devising Lot Nos. 675, 677, 682, and 680 to Maria, and her remaining
properties including Lot No. 674 to respondent.

Matilde died on January 25, 1994, while Maria died on September 24 of the same
year.7
On August 21, 1995, Marias heirs-herein petitioners filed before the Regional
Trial Court (RTC) of Roxas City a Complaint, 8 for declaration and recovery of
ownership and possession of Lot Nos. 674 and 676, and damages against
respondent, alleging:
That in 1978, plaintiff[s] possessed the two (2) parcels of land above-described until
January 1991 when defendant entered and possessed the two (2) parcels of land claiming as
the adopted son of Crispin Aluad who refused to give back possession until Matilde Aluad
died in [1994] and then retained the possession thereof up to and until the present time,
thus, depriving the plaintiffs of the enjoyment of said parcels of land x x x;
That after the death of Matilde R. Aluad, the plaintiffs succeeded by inheritance by right
of representation from their deceased mother, Maria Aluad who is the sole and only
daughter of Matilde Aluad[.]
9

To the complaint respondent alleged in his Answer.10

That Lot 674 is owned by the defendant as this lot was adjudicated to him in the Last
Will and Testament of Matilde Aluad x x x while Lot 676 was purchased by him from
Matilde Aluad. These two lots are in his possession as true owners thereof. (Underscoring
supplied)
11

Petitioners later filed a Motion for Leave to Amend Complaint Already Filed to
Conform to Evidence12 to which it annexed an Amended Complaint13 which cited the
donation of the six lots via Deed of Donation in favor of their mother Maria. Branch
15 of the RTC granted the motion and admitted the Amended Complaint. 14
Respondent filed an Amended Answer 15 contending,inter alia, that the Deed of
Donation is forged and falsified and petitioners change of theory showed that said
document was not existing at the time they filed their complaint and was concocted
by them after realizing that their false claim that their mother was the only
daughter of Matild[e] Aluad cannot in anyway be established by them; 16 and that if
ever said document does exist, the same was already revoked by Matilde when [she]
exercised all acts of dominion over said properties until she sold Lot 676 to
defendant and until her death with respect to the other lots without any opposition
from Maria Aluad.17

The trial court, by Decision18 of September 20, 1996, held that Matilde could not
have transmitted any right over Lot Nos. 674 and 676 to respondent, she having
previously alienated them to Maria via the Deed of Donation. Thus it disposed:
WHEREFORE, in view of the foregoing, judgment is hereby rendered:
1.Declaring the plaintiffs as the rightful owners of the subject Lots Nos. 674 and 676,
Pilar Cadastre;
2.Ordering the defendant to deliver the possession of the subject lots to the plaintiffs;
3.Ordering the defendant to pay the plaintiffs:
a.Thirty thousand pesos (P30,000.00) as attorneys fees;
b.Twenty thousand pesos (P20,000.00), representing the income from subject Lot
676, a year from 1991 up to the time said lot is delivered to the plaintiffs, together
with the interest thereof at the legal rate until fully paid;
c.Ten thousand pesos (P10,000.00), representing the income from the subject Lot
No. 674, a year from 1991 up to the time said lot is delivered to the plaintiffs, plus
legal interest thereof at the legal rate until fully paid; and
d.The costs of the suit.
Defendants counterclaim is ordered dismissed for lack of merit.
SO ORDERED.

19

On petitioners motion, the trial court directed the issuance of a writ of execution
pending appeal.20 Possession of the subject lots appears to have in fact been taken by
petitioners.
By Decision21 of August 10, 2006, the Court of Appeals reversed the trial courts
decision, it holding that the Deed of Donation was actually a donation mortis causa,
not inter vivos, and as such it had to, but did not, comply with the formalities of a
will. Thus, it found that the Deed of Donation was witnessed by only two witnesses
and had no attestation clause which is not in accordance with Article 805 of the
Civil Code, reading:

Art.805.Every will, other than a holographic will, must be subscribed at the end
thereof by the testator himself or by the testators name written by some other person in his
presence, and by his express direction, and attested and subscribed by three or more
credible witnesses in the presence of the testator and of one another.
The testator or the person requested by him to write his name and the instrumental
witnesses of the will shall, also sign, as aforesaid, each and every page thereof, except the
last on the left margin and all the pages shall be numbered correlatively in letters placed on
the upper part of each page.
The attestation shall state the number of pages used upon which the will is written, and
the fact that that testator signed the will and every page thereof, or caused some other
person to write his name, under his express direction, in the presence of the instrumental
witnesses, and that the latter witnessed and signed the will and all the pages thereof in the
presence of the testator, and of one another.
If the attestation clause is in a language not known to the witnesses, it shall be
interpreted to them.

While the appellate court declared respondent as the rightful owner of Lot
No. 676, it did not so declare with respect to Lot No. 674, as Matildes last will and
testament had not yet been probated. Thus the Court of Appeals disposed:
WHEREFORE, finding

the

instant

petition

worthy

of

merit,

the

same

is

hereby GRANTED and the Decision of the Regional Trial Court of Roxas City, Branch 15,
dated 20 September 1996, in Civil Case No. V-6686 for declaration of ownership, recovery of
ownership and possession, and damages is REVERSED and SET ASIDE.
A new one is entered in its stead declaring defendant-appellant as the lawful owner of
Lot [No.] 676 of the Pilar Cadastre. Accordingly, plaintiffs-appellees are directed to return
the possession of the said lot to the defendant-appellant.
Moreover, plaintiffs-appellees are ordered to pay P40,000.00 to defendant-appellant as
attorneys fees and litigation expenses.
Costs against plaintiffs-appellees.
SO ORDERED. (Emphasis in the original; underscoring supplied)
22

Their Motion for Reconsideration23 having been denied,24 petitioners filed the
present Petition for Review,25contending that the Court of Appeals erred:
I
X X X WHEN IT REVERSED THE DECISION OF THE COURT BELOW (RTC, Branch 15,
Roxas City) HOLDING THAT THE DEED OF DONATION INTER VIVOS IN FAVOR OF
PETITIONERS MOTHER IS IN FACT A DONATION MORTIS CAUSA.
II
X X X WHEN IT RULED THAT RESPONDENT IS THE RIGHTFUL OWNER OF LOT NO.
676 AS LOT BUYER ON THE BASIS OF A DEED OF SALE EXECUTED BY THE
DONOR WHO HAD NO MORE RIGHT TO SELL THE SAME.
III
X X X WHEN IT FAILED TO DECLARE PETITIONERS THE RIGHTFUL OWNER OF
LOT NO. 674 AFTER HAVING RULED WHEN IT HELD THAT RESPONDENT CANNOT
BE DECLARED OWNER THEREOF.
IV
X X X WHEN IT HELD THAT THE ISSUANCE OF A WRIT OF EXECUTION PENDING
APPEAL IS IN VIOLATION OF PARAGRAPH (a) SECTION 2, RULE 39, OF THE RULES
OF COURT (AND ORDERING PETITIONERS TO RETURN POSSESSION OF LOT 676
TO RESPONDENT) AND ORDERING PETITIONERS TO PAY ATTORNEYS FEES AND
COST[S] OF SUIT.
26

As did the appellate court, the Court finds the donation to petitioners mother
one of mortis causa, it having the following characteristics:
(1)It conveys no title or ownership to the transferee beforethe death of the transferor;
or what amounts to the same thing, that the transferor should retain the ownership (full or
naked) and control of the property while alive;
(2)That before the death of the transferor, the transfer should be revocable by the
transferor at will, ad nutum; but revocability may be provided for indirectly by means of a
reserved power in the donor to dispose of the properties conveyed; and

(3)That the transfer should be void if the

transferee. (Emphasis and underscoring supplied)

transferor

should

survive

the

27

The phrase in the earlier-quoted Deed of Donation to become effective upon the
death of the DONOR admits of no other interpretation than to mean that Matilde
did not intend to transfer the ownership of the six lots to petitioners mother during
her (Matildes) lifetime.28
The statement in the Deed of Donation reading anytime during the lifetime
of the DONOR or anyone of them who should survive, they could use, encumber
or even dispose of any or even all the parcels of land herein
donated29 means that Matilde retained ownership of the lots and reserved in her
the right to dispose them. For the right to dispose of a thing without other
limitations than those established by law is an attribute of ownership. 30 The phrase
in the Deed of Donation or anyone of them who should survive is of course out of
sync. For the Deed of Donation clearly stated that it would take effect upon the
death of the donor, hence, said phrase could only have referred to the donor Matilde.
Petitioners themselves concede that such phrase does not refer to the donee, thus:
x x x [I]t is well to point out that the last provision (sentence) in the disputed
paragraph should only refer to Matilde Aluad, the donor, because she was the only
surviving spouse at the time the donation was executed on 14 November 1981, as her
husband Crispin Aluad [] had long been dead as early as 1975.
31

The trial court, in holding that the donation was inter vivos, reasoned:
x x x The donation in question is subject to a resolutory term or period when the donor
provides in the aforequoted provisions, but in the event that the DONEE should die before
the DONOR, the present donation shall be deemed rescinded and [of] no further force and
effect. When the donor provides that should the DONEE xxx die before the DONOR, the
present donation shall be deemed rescinded and [of] no further force and effect the logical
construction thereof is that after the execution of the subject donation, the same became
effective immediately and shall be deemed rescinded and [of] no further force and effect
upon the arrival of a resolutory term or period, i.e., the death of the donee which shall occur
before that of the donor. Understandably, the arrival of this resolutory term or period cannot
rescind and render of no further force and effect a donation which has never become
effective, because, certainly what donation is there to be rescinded and rendered of no
further force and effect upon the arrival of said resolutory term or period if there was no
donation which was already effective at the time when the donee died? (Italics supplied)
32

A similar ratio in a case had been brushed aside by this Court, however, thus:
x x x [P]etitioners contend that the stipulation on rescission in case petitioners [donee]
die ahead of [donor] Cabatingan is a resolutory condition that confirms the nature of the
donation asinter vivos.
Petitioners arguments are bereft of merit.

33

xxxx
x x x The herein subject deeds expressly provide that the donation shall be rescinded in
case [donees] the petitioners predecease [the donor] Conchita Cabatingan. As stated
in Reyes v. Mosqueda, one of the decisive characteristics of a donation mortis causa is that
the transfer should be considered void if the donor should survive the donee. This is exactly
what Cabatingan provided for in her donations. If she really intended that the donation
should take effect during her lifetime and that the ownership of the properties donated to
the donee or independently of, and not by reason of her death, she would not have expressed
such proviso in the subject deeds. (Underscoring supplied)
34

As the Court of Appeals observed, x x x [t]hat the donation is mortis causa is

fortified by Matildes acts of possession as she continued to pay the taxes for the said
properties which remained under her name; appropriated the produce; and applied
for free patents for which OCTs were issued under her name. 35
The donation being then mortis causa, the formalities of a will should have been
observed36 but they were not, as it was witnessed by only two, not three or more
witnesses following Article 805 of the Civil Code.37
Further, the witnesses did not even sign the attestation clause 38 the execution of
which clause is a requirement separate from the subscription of the will and the
affixing of signatures on the left-hand margins of the pages of the will. So the Court
has emphasized:
x x x Article 805 particularly segregates the requirement that the instrumental
witnesses sign each page of the will from the requisite that the will be attested and
subscribed by [the instrumental witnesses]. The respective intents behind these two classes
of signature[s] are distinct from each other. The signatures on the left-hand corner of every
page signify, among others, that the witnesses are aware that the page they are signing
forms part of the will. On the other hand, the signatures to the attestation clause establish
that the witnesses are referring to the statements contained in the attestation clause itself.

Indeed, the attestation clause is separate and apart from the disposition of the will. An
unsigned attestation clause results in an unattested will. Even if the instrumental
witnesses signed the left-hand margin of the page containing the unsigned attestation
clause, such signatures cannot demonstrate these witnesses undertakings in the clause,
since the signatures that do appear on the page were directed towards a wholly different
avowal.
x x x It is the witnesses, and not the testator, who are requiredunder Article 805 to state
the number of pages used upon which the will is written; the fact that the testator had
signed the will and every page thereof; and that they witnessed and signed the will and all
the pages thereof in the presence of the testator and of one another. The only proof in the
will that the witnesses have stated these elemental facts would be their signatures on the
attestation clause. (Emphasis and underscoring supplied)
39

Furthermore, the witnesses did not acknowledge the will before the notary
public,40 which is not in accordance with the requirement of Article 806 of the Civil
Code that every will must be acknowledged before a notary public by the testator
and the witnesses.
More. The requirement that all the pages of the will must be numbered
correlatively in letters placed on the upper part of each page was not also followed. 41
The Deed of Donation which is, as already discussed, one of mortis causa, not
having followed the formalities of a will, it is void and transmitted no right to
petitioners mother. But even assuming arguendo that the formalities were
observed, since it was not probated, no right to Lot Nos. 674 and 676 was
transmitted to Maria.42 Matilde thus validly disposed of Lot No. 674 to respondent
by her last will and testament, subject of course to the qualification that her
(Matildes) will must be probated. With respect to Lot No. 676, the same had, as
mentioned earlier, been sold by Matilde to respondent on August 26, 1991.
Petitioners nevertheless argue that assuming that the donation of Lot No. 674 in
favor of their mother is indeedmortis causa, hence, Matilde could devise it to
respondent, the lot should nevertheless have been awarded to them because they
had acquired it by acquisitive prescription, they having been in continuous,
uninterrupted, adverse, open, and public possession of it in good faith and in the
concept of an owner since 1978.43

Petitioners failed to raise the issue of acquisitive prescription before the lower
courts, however, they having laid their claim on the basis of inheritance from their
mother. As a general rule, points of law, theories, and issues not brought to the
attention of the trial court cannot be raised for the first time on appeal. 44 For a
contrary rule would be unfair to the adverse party who would have no opportunity
to present further evidence material to the new theory, which it could have done had
it been aware of it at the time of the hearing before the trial court.45
WHEREFORE, the petition is DENIED.
SO ORDERED.
Quisumbing (Chairperson), Tinga, Velasco, Jr. andBrion, JJ., concur.
Petition denied.

Note.Before any will can have force or validity it must be probatedthis

cannot be dispensed with and is a matter of public policy; A Partition Agreement
which was executed pursuant to a will that was not probated can not be given effect.
(Rodriguez vs. Rodriguez, 532 SCRA 642 [2007])
o0o

No. L-38338. January 28, 1985.

IN THE MATTER OF THE INTESTATE ESTATE OF ANDRES G. DE JESUS AND

BIBIANA ROXAS DE JESUS, SIMEON R. ROXAS & PEDRO ROXAS DE JESUS,
petitioners, vs. ANDRES R. DE JESUS, JR., respondent
Civil Law; Wills; Execution of Wills; Purpose of liberal trend of the Civil Code in the
manner of execution of wills in case of doubt is to prevent intestacy.This will not be the
first time that this Court departs from a strict and literal application of the statutory
requirements regarding the due execution of Wills. We should not overlook the liberal trend
of the Civil Code in the manner of execution of Wills, the purpose of which, in case of doubt
is to prevent intestacy.
Same; Same; Same; Admission to probate of the will which has been executed in
substantial compliance with the formalities of the law, and the possibility of bad faith and
fraud is obviated.Thus, the prevailing policy is to require satisfaction of the legal
requirements in order to guard against fraud and bad faith but without undue or
unnecessary curtailment of testamentary privilege (Icasiano v. Icasiano, 11 SCRA 422). If a
Will has been executed in substantial compliance with the formalities of the law, and the
possibility of bad faith and fraud in the exercise thereof is obviated, said Will should be
admitted to probate (Rey v. Cartagena, 56 Phil. 282).
Same; Same; Same; Purpose of the solemnities surrounding the execution of wills.The
purpose of the solemnities surrounding the execution of Wills has been expounded by this
Court in Abangan v. Abangan, 40 Phil. 476) where we ruled that: The object of the
solemnities surrounding the execution of wills is to close the door against bad faith and
fraud, to avoid substitution of wills and testaments and to guaranty their truth and
authenticity. x x x
Same; Same; Same; Holographic Will; Absence of evidence of bad faith and fraud in the
execution of a holographic will and absence of any substitution of wills and testaments;
Finding that the will was entirely written, dated and signed and no question of its
genuineness and due execution, correct.We have carefully reviewed the records of this case
and found no evidence of bad faith and fraud in its execution nor was there any substitution
of Wills and Testaments. There is no question that the holographic Will of the deceased
Bibiana Roxas de Jesus was entirely written, dated, and signed by the testatrix herself and
in a language known to her. There is also no question as to its genuineness and due
execution. All the children of the testatrix agree on the genuineness of the holographic Will

of their mother and that she had the testamentary capacity at the time of the execution of
said Will.
Same; Same; Same; General rule that the date in a holographic will should include the
day, month and year of execution; Exception, is the absence of appearance of fraud, bad
faith, undue influence and pressure and the authenticity of the will; Date Feb./61
appearing in a holographic will, valid, under the principle of substantial compliance.As a
general rule, the date in a holographic Will should include the day, month, and year of its
execution. However, when as in the case at bar, there is no appearance of fraud, bad faith,
undue influence and pressure and the authenticity of the Will is established and the only
issue is whether or not the date FEB./61 appearing on the holographic Will is a valid
compliance with Article 810 of the Civil Code, probate of the holographic Will should be
allowed under the principle of substantial compliance.

PETITION for certiorari to review the order of the Court of First Instance of
Manila, Br. XXI. Colayco, J.
The facts are stated in the opinion of the Court.
Raul S. Sison Law Office for petitioners.
Rafael Dinglasan, Jr. for heir M. Roxas.
Ledesma, Guytingco, Velasco and Associates for Ledesa and A. R. de Jesus.
GUTIERREZ, JR., J.:
This is a petition for certiorari to set aside the order of respondent Hon. Jose C.
Colayco, Presiding Judge Court of First Instance of Manila, Branch XXI disallowing
the probate of the holographic Will of the deceased Bibiana Roxas de Jesus.
The antecedent facts which led to the filing of this petition are undisputed.
After the death of spouses Andres G. de Jesus and Bibiana Roxas de Jesus,
Special Proceeding No. 81503 entitled In the Matter of the Intestate Estate of
Andres G. de Jesus and Bibiana Roxas de Jesus was filed by petitioner Simeon R.
Roxas, the brother of the deceased Bibiana Roxas de Jesus.
On March 26, 1973, petitioner Simeon R. Roxas was appointed administrator.
After Letters of Administration had been granted to the petitioner, he delivered to

the lower court a document purporting to be the holographic Will of the deceased
Bibiana Roxas de Jesus.
On May 26, 1973, respondent Judge Jose Colayco set the hearing of the probate
of the holographic Will on July 21, 1973.
Petitioner Simeon R. Roxas testified that after his appointment as administrator,
he found a notebook belonging to the deceased Bibiana R. de Jesus and that on
pages 21, 22, 23 and 24 thereof, a letter-will addressed to her children and entirely
written and signed in the handwriting of the deceased Bibiana R. de Jesus was
found. The will is dated FEB./61 and states: This is my will which I want to be
respected altho it is not written by a lawyer. x x x
The testimony of Simeon R. Roxas was corroborated by the testimonies of Pedro
Roxas de Jesus and Manuel Roxas de Jesus who likewise testified that the letter
dated FEB./61 is the holographic Will of their deceased mother, Bibiana R. de
Jesus. Both recognized the handwriting of their mother and positively identified her
signature. They further testified that their deceased mother understood English, the
language in which the holographic Will is written, and that the date FEB./61 was
the date when said Will was executed by their mother.
Respondent Luz R. Henson, another compulsory heir filed an opposition to probate
assailing the purported holographic Will of Bibiana R. de Jesus because(a) it was
not executed in accordance with law, (b) it was executed through force, intimidation
and/or under duress, undue influence and improper pressure, and (c) the alleged
testatrix acted by mistake and/or did not intend, nor could have intended the said
Will to be her last Will and testament at the time of its execution.
On August 24, 1973, respondent Judge Jose C. Colayco issued an order allowing
the probate of the holographic Will which he found to have been duly executed in
accordance with law.
Respondent Luz Roxas de Jesus filed a motion for reconsideration alleging inter
alia that the alleged holographic Will of the deceased Bibiana R. de Jesus was not
dated as required by Article 810 of the Civil Code. She contends that the law
requires that the Will should contain the day, month, and year of its execution and
that this should be strictly compiled with.

On December 10, 1973, respondent Judge Colayco reconsidered his earlier order
and disallowed the probate of the holographic Will on the ground that the word
dated has generally been held to include the month, day, and year. The dispositive
portion of the order reads:
WHEREFORE, the document purporting to be the holographic Will of Bibiana Roxas de
Jesus, is hereby disallowed for not having been executed as required by the law. The order of
August 24, 1973 is hereby set aside.

The only issue is whether or not the date FEB./61 appearing on the holographic
Will of the deceased Bibiana Roxas de Jesus is a valid compliance with the Article
810 of the Civil Code which reads:
ART. 810. A person may execute a holographic will which must be entirely written, dated,
and signed by the hand of the testator himself. It is subject to no other form, and may be
made in or out of the Philippines, and need not be witnessed.

The petitioners contend that while Article 685 of the Spanish Civil Code and Article
688 of the Old Civil Code require the testator to state in his holographic Will the
year, month, and day of its execution, the present Civil Code omitted the phrase
Ao, mes y dia and simply requires that the holographic Will should be dated. The
petitioners submit that the liberal construction of the holographic Will should
prevail.
Respondent Luz Henson on the other hand submits that the purported
holographic Will is void for non-compliance with Article 810 of the New Civil Code
in that the date must contain the year, month, and day of its execution. The
respondent contends that Article 810 of the Civil Code was patterned after Section
1277 of the California Code and Section 1588 of the Louisiana Code whose Supreme
Courts had consistently ruled that the required date includes the year, month, and
day, and that if any of these is wanting, the holographic Will is invalid. The
respondent further contends that the petitioner cannot plead liberal construction of
Article 810 of the Civil Code because statutes prescribing the formalities to be
observed in the execution of holographic Wills are strictly construed.
We agree with the petitioner.

This will not be the first time that this Court departs from a strict and literal
application of the statutory requirements regarding the due execution of Wills. We
should not overlook the liberal trend of the Civil Code in the manner of execution of
Wills, the purpose of which, in case of doubt is to prevent intestacy
The underlying and fundamental objectives permeating the provisions of the law on wills
in this Project consists in the liberalization of the manner of their execution with the end in
view of giving the testator more freedom in expressing his last wishes, but with sufficient
safeguards and restrictions to prevent the commission of fraud and the exercise of undue
and improper pressure and influence upon the testator.
This objective is in accord with the modern tendency with respect to the formalities in
the execution of wills. (Report of the Code Commission, p. 103)

In Justice Capistranos concurring opinion in Heirs of Raymundo Castro v.

Bustos (27 SCRA 327) he emphasized that:
xxx
xxx
xxx x x x The law has a tender regard for the will of the testator expressed in
his last will and testament on the ground that any disposition made by the testator is better
than that which the law can make. For this reason, intestate succession is nothing more
than a disposition based upon the presumed will of the decedent.

Thus, the prevailing policy is to require satisfaction of the legal requirements in

order to guard against fraud and bad faith but without undue or unnecessary
curtailment of testamentary privilege (Icasiano v. Icasiano, 11 SCRA 422). If a Will
has been executed in substantial compliance with the formalities of the law, and the
possibility of bad faith and fraud in the exercise thereof is obviated, said Will should
be admitted to probate (Rey v. Cartagena, 56 Phil. 282). Thus,
xxx

xxx

xxx

x x x More than anything else, the facts and circumstances of record are to be
considered in the application of any given rule. If the surrounding circumstances point to a
regular execution of the will, and the instrument appears to have been executed
substantially in accordance with the requirements of the law, the inclination should, in the
absence of any suggestion of bad faith, forgery or fraud, lean towards its admission to
probate, although the document may suffer from some imperfection of language, or other
non-essential defect. x x x (Leynez v. Leynez, 68 Phil. 745).

If the testator, in executing his Will, attempts to comply with all the requisites,
although compliance is not literal, it is sufficient if the objective or purpose sought
to be accomplished by such requisite is actually attained by the form followed by the
testator.
The purpose of the solemnities surrounding the execution of Wills has been
expounded by this Court inAbangan v. Abangan, 40 Phil. 476, where we ruled that:
The object of the solemnities surrounding the execution of wills is to close the door against
bad faith and fraud, to avoid substitution of wills and testaments and to guaranty their
truth and authenticity. x x x

In particular, a complete date is required to provide against such contingencies as

that of two competing Wills executed on the same day, or of a testator becoming
insane on the day on which a Will was executed (Velasco v. Lopez,1 Phil. 720). There
is no such contingency in this case.
We have carefully reviewed the records of this case and found no evidence of bad
faith and fraud in its execution nor was there any substitution of Wills and
Testaments. There is no question that the holographic Will of the deceased Bibiana
Roxas de Jesus was entirely written, dated, and signed by the testatrix herself and
in a language known to her. There is also no question as to its genuineness and due
execution. All the children of the testatrix agree on the genuineness of the
holographic Will of their mother and that she had the testamentary capacity at the
time of the execution of said Will. The objection interposed by the oppositorrespondent Luz Henson is that the holographic Will is fatally defective because the
date FEB./61 appearing on the holographic Will is not sufficient compliance with
Article 810 of the Civil Code. This objection is too technical to be entertained.
As a general rule, the date in a holographic Will should include the day, month,
and year of its execution. However, when as in the case at bar, there is no
appearance of fraud, bad faith, undue influence and pressure and the authenticity of
the Will is established and the only issue is whether or not the date FEB./61
appearing on the holographic Will is a valid compliance with Article 810 of the Civil
Code, probate of the holographic Will should be allowed under the principle of
substantial compliance.

WHEREFORE, the instant petition is GRANTED. The order appealed from is

REVERSED and SET ASIDE and the order allowing the probate of the holographic
Will of the deceased Bibiana Roxas de Jesus is reinstated.
SO ORDERED.
Teehankee (Chairman), Melencio-Herrera, Plana,Relova and De la Fuente,
JJ., concur.
Petition granted. Order reversed and set aside.
Notes.The intention and wishes of the testator, when clearly expressed in his
will, constitute the fixed law of interpretation, and all questions raised at the trial,
relative to its execution and fulfillment, must be settled in accordance therewith,
following the plain and literal meaning of the testators words, unless it clearly
appears that his intention was otherwise. (Vda. de Villanueva vs. Juico, 4 SCRA
550.)
Where a will does not comply with the requirement contained in Article 806 of
the New Civil Code, it is obvious that the same may not be probated. (Garcia vs.
Gatchalian,21 SCRA 1056.)
o0o

G.R. Nos. 83843-44. April 5, 1990.

IN THE MATTER OF THE PETITION TO APPROVE THE WILL OF MELECIO

LABRADOR. SAGRADO LABRADOR (Deceased), substituted by ROSITA
LABRADOR, ENRICA LABRADOR, and CRISTOBAL LABRADOR, petitionersappellants, vs. COURT OF APPEALS, GAUDENCIO LABRADOR, and JESUS
LABRADOR, respondents-appellees.
1

Wills; Date of holographic will can be placed in the main body thereof.The will has
been dated in the hand of the testator himself in perfect compliance with Article 810. It is
worthy of note to quote the first paragraph of the second page of the holographic will, viz:
And this is the day in which we agreed that we are making the partitioning and assigning
the respective assignment of the said fishpond, and this being in the month of March, 17th
day, in the year 1968, and this decision and or instruction of mine is the matter to be
followed. And the one who made this writing is no other than MELECIO LABRADOR, their
father. (italics supplied) (p. 46, Rollo) The law does not specify a particular location where
the date should be placed in the will. The only requirements are that the date be in the will
itself and executed in the hand of the testator. These requirements are present in the
subject will.
Same; Words & Phrases; Intention to execute a will, not a partition agreement plain
from the words of the holographic will at bar.Respondents are in error. The intention to
show 17 March 1968 as the date of the execution of the will is plain from the tenor of the
succeeding words of the paragraph. As aptly put by petitioner, the will was not an
agreement but a unilateral act of Melecio Labrador who plainly knew that what he was
executing was a will. The act of partitioning and the declaration that such partitioning was
the testators instruction or decision to be followed reveal that Melecio Labrador was fully
aware of the nature of the estate property to be disposed of and of the character of the
testamentary act as a means to control the disposition of his estate.

PETITION to review the decision of the Court of Appeals. Imperial, J.

The facts are stated in the opinion of the Court.
Benjamin C. Santos Law Offices for petitioners.
Rodrigo V. Fontelera for private respondents.
PARAS, J.:
The sole issue in this case is whether or not the alleged holographic will of one
Melecio Labrador is dated, as provided for in Article 810 of the New Civil Code.
2

The antecedent and relevant facts are as follows: On June 10, 1972, Melecio
Labrador died in the Municipality of Iba, province of Zambales, where he was
residing, leaving behind a parcel of land designated as Lot No. 1916 under Original
Certificate of Title No. P-1652, and the following heirs, namely: Sagrado, Enrica,

Cristobal, Jesus, Gaudencio, Josefina, Juliana, Hilaria and Jovita, all surnamed
Labrador, and a holographic will.
On July 28, 1975, Sagrado Labrador (now deceased but substituted by his heirs),
Enrica Labrador and Cristobal Labrador, filed in the court a quo a petition for the
probate docketed as Special Proceeding No. 922-I of the alleged holographic will of
the late Melecio Labrador.
Subsequently, on September 30, 1975, Jesus Labrador (now deceased but
substituted by his heirs), and Gaudencio Labrador filed an opposition to the petition
on the ground that the will has been extinguished or revoked by implication of law,
alleging therein that on September 30, 1971, that is, before Melecios death, for the
consideration of Six Thousand (P6,000) Pesos, testator Melecio executed a Deed of
Absolute Sale, selling, transferring and conveying in favor of oppositors Jesus and
Gaudencio Lot No. 1916 and that as a matter of fact, O.C.T. No. P-1652 had been
cancelled by T.C.T. No. T-21178. Earlier however, in 1973, Jesus Labrador sold said
parcel of land to Navat for only Five Thousand (P5,000) Pesos. (Rollo, p. 37)
Sagrado thereupon filed, on November 28, 1975, against his brothers, Gaudencio
and Jesus, for the annulment of said purported Deed of Absolute Sale over a parcel
of land which Sagrado allegedly had already acquired by devise from their father
Melecio Labrador under a holographic will executed on March 17, 1968, the
complaint for annulment docketed as Civil Case No. 934-I, being premised on the
fact that the aforesaid Deed of Absolute Sale is fictitious.
After both parties had rested and submitted their respective evidence, the trial
court rendered a joint decision dated February 28, 1985, allowing the probate of the
holographic will and declaring null and void the Deed of Absolute Sale. The court a
quo had also directed the respondents (the defendants in Civil Case No. 934-I) to
reimburse to the petitioners the sum of P5,000.00 representing the redemption price
for the property paid by the plaintiff-petitioner Sagrado with legal interest thereon
from December 20, 1976, when it was paid to vendee a retro.
Respondents appealed the joint decision to the Court of Appeals, which on March
10, 1988 modified said joint decision of the court a quo by denying the allowance of
the probate of the will for being undated and reversing the order of reimbursement.

Petitioners Motion for Reconsideration of the aforesaid decision was denied by the
Court of Appeals, in the resolution of June 13, 1988. Hence, this petition.
Petitioners now assign the following errors committed by respondent court, to
wit:
I
THE COURT OF APPEALS ERRED IN NOT ALLOWING AND APPROVING THE
PROBATE OF THE HOLOGRAPHIC WILL OF THE TESTATOR MELECIO LABRADOR;
and
II
THE COURT OF APPEALS ERRED IN FINDING THAT THE ORDER OF THE
LOWER COURT DIRECTING THE REIMBURSEMENT OF THE FIVE THOUSAND
PESOS REPRESENTING THE REDEMPTION PRICE WAS ERRONEOUS.

The alleged undated holographic will written in Ilocano translated into English, is
quoted as follows:
ENGLISH INTERPRETATION OF THE WILL OF THE
LATE MELECIO LABRADOR WRITTEN IN ILOCANO
BY ATTY. FIDENCIO L. FERNANDEZ
IFirst Page
This is also where it appears in writing of the place which is assigned and shared or the
partition in favor of SAGRADO LABRADOR which is the fishpond located and known place
as Tagale.
And this place that is given as the share to him, there is a measurement of more or less
one hectare, and the boundary at the South is the property and assignment share of
ENRICA LABRADOR, also their sister, and the boundary in the West is the sea, known as
the SEA as it is, and the boundary on the NORTH is assignment belonging to CRISTOBAL
LABRADOR, who likewise is also their brother. That because it is now the time for me
being now ninety three (93) years, then I feel it is the right time for me to partition the
fishponds which were and had been bought or acquired by us, meaning with their two
mothers, hence there shall be no differences among themselves, those among brothers and
sisters, for it is I myself their father who am making the apportionment and delivering to

each and everyone of them the said portion and assignment so that there shall not be any
cause of troubles or differences among the brothers and sisters.
IISecond Page
And this is the day in which we agreed that we are making the partitioning and
assigning the respective assignment of the said fishpond, and this being in the month of
March, 17th day, in the year 1968, and this decision and or instruction of mine is the matter
to be followed. And the one who made this writing is no other than MELECIO LABRADOR,
their father.
Now, this is the final disposition that I am making in writing and it is this that should be
followed and complied with in order that any differences or troubles may be forestalled and
nothing will happen along these troubles among my children, and that they will be in good
relations among themselves, brothers and sisters;
And those improvements and fruits of the land; mangoes, bamboos and all coconut trees
and all others like the other kind of bamboo by name of Bayog, it is their right to get if they
so need, in order that there shall be nothing that anyone of them shall complain against the
other, and against anyone of the brothers and sisters.
IIITHIRD PAGE
And that referring to the other places of property, where the said property is located, the
same being the fruits of our earnings of the two mothers of my children, there shall be equal
portion of each share among themselves, and or to be benefitted with all those property,
which property we have been able to acquire.
That in order that there shall be basis of the truth of this writing (WILL) which I am
here hereof manifesting of the truth and of the fruits of our labor which their two mothers, I
am signing my signature below hereof, and that this is what should be complied with, by all
the brothers and sisters, the children of their two mothersJULIANA QUINTERO
PILARISA and CASIANA AQUINO VILLANUEVA Your father who made this writing
(WILL), and he is, MELECIO LABRADOR y RALUTIN. (p. 46, Rollo)

The petition, which principally alleges that the holographic will is really dated,
although the date is not in its usual place, is impressed with merit.

The will has been dated in the hand of the testator himself in perfect compliance
with Article 810. It is worthy of note to quote the first paragraph of the second page
of the holographic will, viz:
And this is the day in which we agreed that we are making the partitioning and assigning
the respective assignment of the said fishpond, and this being in the month of March, 17th
day, in the year 1968, and this decision and or instruction of mine is the matter to be
followed. And the one who made this writing is no other than MELECIO LABRADOR, their
father. (italics supplied) (p. 46, Rollo)

The law does not specify a particular location where the date should be placed in the
will. The only requirements are that the date be in the will itself and executed in
the hand of the testator. These requirements are present in the subject will.
Respondents claim that the date 17 March 1968 in the will was when the testator
and his beneficiaries entered into an agreement among themselves about the
partitioning and assigning the respective assignments of the said fishpond, and
was not the date of execution of the holographic will; hence, the will is more of an
agreement between the testator and the beneficiaries thereof to the prejudice of
other compulsory heirs like the respondents. This was thus a failure to comply with
Article 783 which defines a will as an act whereby a person is permitted, with the
formalities prescribed by law, to control to a certain degree the disposition of his
estate, to take effect after his death.
Respondents are in error. The intention to show 17 March 1968 as the date of the
execution of the will is plain from the tenor of the succeeding words of the
paragraph. As aptly put by petitioner, the will was not an agreement but a
unilateral act of Melecio Labrador who plainly knew that what he was executing
was a will. The act of partitioning and the declaration that such partitioning as the
testators instruction or decision to be followed reveal that Melecio Labrador was
fully aware of the nature of the estate property to be disposed of and of the
character of the testamentary act as a means to control the disposition of his estate.
Anent the second issue of finding the reimbursement of the P5,000 representing
the redemption price as erroneous, respondent courts conclusion is incorrect. When
private respondents sold the property (fishpond) with right to repurchase to Navat
for P5,000, they were actually selling property belonging to another and which they
had no authority to sell, rendering such sale null and void. Petitioners, thus

redeemed the property from Navat for P5,000, to immediately regain possession of
the property for its disposition in accordance with the will. Petitioners therefore
deserve to be reimbursed the P5,000.
PREMISES CONSIDERED, the decision of the Court of Appeals dated March 10,
1988 is hereby REVERSED. The holographic will of Melecio Labrador is
APPROVED and ALLOWED probate. The private respondents are directed to
REIMBURSE the petitioners the sum of Five Thousand Pesos (P5,000.00).
SO ORDERED.
Melencio-Herrera (Chairman), Padilla, Sarmientoand Regalado, JJ., concur.
Decision reversed.
Notes.The dismissal of a petition for the probate of a will due to absence of
counsel and petitioner during the hearing is not an adjudication on the merits. (De
Arroyo vs. Abay, 4 SCRA 555.)
Inadvertent failure of a witness to sign one page of a testament is not per se
sufficient to justify denial of probate. (Icasiano vs. Icasiano, 11 SCRA 422.)
Disposal by testator of certain properties in his will prior to his death is not a
proper ground for denial of probate. (Sumilang vs. Ramagosa, 21 SCRA 1369.)
o0o

[No. L-12190.
TESTATE ESTATE
GAN,

OF

petitioner

August 30, 1958]

FELICIDAD ESGUERRA ALTO-YAP

and

appellant, vs. ILDEFONSO

DECEASED.

YAP,

FAUSTO E.

oppositor

and

appellee.
HOLOGRAPHIC WILLS; PROBATE OF EXECUTION AND CONTENTS OF WILL, HOW PROVED.
The execution and the contents of a lost or destroyed holographic will may not be proved by
the bare testimony of witnesses who have seen and/or read such will. The will itself must be
presented; otherwise, it shall produce no effect. The law regards the document itself as
material proof of authenticity.

APPEAL from a judgment of the Court of First Instance of Manila. San Jose, J.
The facts are stated in the opinion of the Court.
Benedicto C. Balderrama, Crispin D. Baizas and Roberto H. Benitez for appellant.
Arturo M. Tolentino for appellee.
BENGZON, J.:
On November 20, 1951, Felicidad Esguerra Alto Yap died of heart failure in the
University of Santo Tomas Hospital, leaving properties in Pulilan, Bulacan, and in
the City of Manila.
On March 17, 1952, Fausto E. Gan initiated these proceedings in the Manila
court of first instance with a petition for the probate of a holographic will allegedly
executed by the deceased, substantially in these words:
Nobyembre 5, 1951
Ako, si Felicidad E. Alto-Yap, may asawa, at ganap na pag-iisip, ay nagsasalaysay na ang
aking kayamanan sa bayan ng Pulilan, Bulacan ay aking ipinamamana sa aking mga
kamaganakang sumu-sunod:
Vicente Esguerra, Sr. .............................. 5 Bahagi
Fausto E. Gan......................................... 2 Bahagi
Rosario E. Gan ....................................... 2 Bahagi
Filomena Alto .........................................1 Bahagi

Beatriz Alto ............................................1 Bahagi

At ang aking lahat ng ibang kayamanan sa Maynila at iba pang lugar ay aking
ipinamamana sa aking asawang si Ildefonso D. Yap sa kondisyong siyay magpapagawa ng
isang Health Center na nagkakahalaga ng di kukulangin sa halagang P60,000.00 sa bayan
ng Pulilan, Bulacan, na nakaukit ang aking pangalang Felicidad Esguerra-Alto. At kung ito
ay may kakulangan man ay bahala na ang aking asawa ang magpuno upang matupad ang
aking kagus-tuhan.
(Lagda) Felicidad E. Alto-Yap

Opposing the petition, her surviving husband Ildefonso Yap asserted that the
deceased had not left any will, nor executed any testament during her lifetime.
After hearing the parties and considering their evidence, the Hon. Ramon R. San
Jose, Judge,1 refused to probate the alleged will. A seventy-page motion for
reconsideration failed. Hence this appeal.
The will itself was not presented. Petitioner tried to establish its contents and
due execution by the statements in open court of Felina Esguerra, Primitivo Reyes,
Socorro Olarte and Rosario Gan Jimenez, whose testimonies may be summarized as
follows:
Sometime in 1950 after her last trip abroad, Felicidad Esguerra mentioned to her
first cousin, Vicente Esguerra, her desire to make a. will. She confided however that
it would be useless if her husband discovered or knew about it. Vicente consulted
with Fausto E. Gan, nephew of Felicidad, who was then preparing for the bar
examinations. The latter replied it could be done without any witness, provided the
document was entirely in her handwriting, signed and dated by her. Vicentp
Esguerra lost no time in transmitting the information, and on the strength of it, in
the morning of November 5, 1951, in her residence at Juan Luna Street, Manila,
Felicidad wrote, signed and dated a holographic will substantially of the tenor above
transcribed, in the presence of her niece, Felina Esguerra (daughter of Vicente), who
was invited to read it. In the afternoon of that day, Felicidad was visited by a distant
relative, Primitivo Reyes, and she allowed him to read the will in the presence of
Felina Esguerra, who again read it.
Nine days later, he had other visitors: Socorro Olarte a cousin, and Rosario Gan
Jimenez, a niece. To these she showed the will, again in the presence of Felina
Esguerra, who read it for the third time.
When on November 19, 1951, Felicidad was confined at the U.S.T. Hospital for
her last illness, she entrusted the said will, which was contained in a purse,
to Felina Esguerra. But a few hours later, Ildefonso Yap, her husband, asked

Felina for the purse; and being afraid of him by reason of his well-known violent
temper, she delivered it to him. Thereafter, in the same day, Ildefonso Yap returned
the purse to Felina, only to demand it the next day shortly before the death of
Felicidad. Again, Felina handed it to him but not before she had taken the purse to
the toilet, opened it and read the will for the last time. 2
From the oppositors proof it appears that Felicidad Esguerra had been suffering
from heart disease for several years before her death; that she had been treated by
prominent physicians, Dr. Agerico Sison, Dr. Agustin Liboro and others; that in May
1950 husband and wife journeyed to the United States wherein for several weeks
she was treated for the disease; that thereafter she felt well and after visiting
interesting places, the couple returned to this country in August 1950.
However, her ailment recurred, she suffered several attacks, the most serious of
which happened in the early morning of the first Monday of November 1951 (Nov.
5). The whole household was surprised and alarmed, even the teachers of the
Harvardian Colleges occupying the lower floors and owned by the Yap spouses.
Physicians help was hurriedly called, and Dr. Tanjuaquio arrived at about 8:00
a.m., found the patient hardly breathing, lying in bed, her head held high by her
husband. Injections and oxygen were administered. Following the doctors advice
the patient stayed in bed, and did nothing the whole day, her husband and her
personal attendant, Mrs. Bantique, constantly at her side. These two persons swore
that Mrs. Felicidad Esguerra Yap made no will, and could have made no will on that
day. The trial judge refused to credit the petitioners evidence for several reasons,
the most important of which were these: (a) if according to his evidence, the
decedent wanted to keep her will a secret, so that her husband would not know it, it
is strange she executed it in the presence of Felina Esguerra, knowing as she did
that witnesses were unnecessary; (b) in the absence of a showing that Felina was a
confidant of the decedent it is hard to believe that the latter would have allowed the
former to see and read the will several times; (c) it is improbable that the decedent
would have permitted Primitivo Reyes, Bosario Gan Jimenez and Socorro Olarte to
read her will, when she precisely wanted its contents to remain a secret during her
lifetime; (d) it is also improbable that her purpose being to conceal the will from her
husband she would carry it around, even to the hospital, in her purse which could
for one reason or another be opened by her husband; (e) if it is true that the
husband demanded the purse from Felina in the U.S.T. Hospital and that the will
was there, it is hard to believe that he returned it without destroying the will, the

theory of the petitioner being precisely that the wTill was executed behind his back
for fear he will destroy it.
In the face of these improbabilities, the trial judge had to accept the oppositors
evidence that Felicidad did not and could not have executed such holographic will.
In this appeal, the major portion of appellants brief discussed the testimony of
the oppositor and of his witnesses in a vigorous effort to discredit them. It appears
that the same arguments, or most of them, were presented in the motion to
reconsider; but they failed to induce the court a quo to change its mind. The
oppositors brief, on the other hand, aptly answers the criticisms. We deem it
unnecessary to go over the same matters, because in our opinion the case should be
decided not on the weakness of the opposition but on the strength of the evidence of
the petitioner, who has the burden of proof.
The Spanish Civil Code permited the execution of holographic wills along with
other forms. The Code of Civil Procedure (Act 190) approved August 7, 1901,
adopted only one form, thereby repealing the other forms, including holographic
wills.
The New Civil Code effective in 1950 revived holographic wills in its arts. 810814. A person may execute a holographic will which must be entirely written,
dated, and signed by the hand of the testator himself. It is subject to no other form
and may be made in or out of the Philippines, and need not be witnessed.
This is indeed a radical departure from the form and solemnities provided for
wills under Act 190, which for fifty years (from 1901 to 1950) required wills to be
subscribed by the testator and three credible witnesses in each and every page; isuch
witnesses to attest to the number of sheets used and to the fact that the testator
sigjied in their presence and that they signed in the presence of the testator and of
each other.
The object of such requirements it has been said, is to close the door against bad
faith and fraud, to prevent substitution of wills, to guarantee their truth and
authenticity (Abangan vs. Abangan, 40 Phil., 476) and to avoid that those who have
no right to succeed the testator would succeed him and be benefited with the
probate of same. (Mendoza vs. Pilapil, 40 Off. Gaz., 1855). However, formal
imperfections may be brushed aside when authenticity of the instrument is duly
proved. (Rodriguez vs. Yap, 40 Off. Gaz. 1st Supp. No. 3 p. 194.)
Authenticity and due execution is the dominant requirement to be fulfilled when
such will is submitted to the courts for allowance. For that purpose the testimony of
one of the subscribing witnesses would be sufficient, if there is no opposition (Sec. 5,

Rule 77). If there is, the three must testify, if available. (Cabang vs. Delfinado, 34
Phil., 291; Tolentino vs. Francisco, 57 Phil., 742). From the testimony of such
witnesses (and of other additional witnesses) the court may form its opinion as to
the genuineness and authenticity of the testament, and the circumstances of its due
execution.
Now, in the matter of holographic wills, no such guaranties of truth and veracity
are demanded, since as stated, they need no witnesses; provided however, that they
are entirely written, dated, and signed by th hand of the testator himself. The
law, it is reasonable to suppose, regards the document itself as material proof of
authenticity, and as its own safeguard, since it could at any time, be demonstrated
to be-or not to bein the hands of the testator himself. In the probate of a
holographic will says the New Civil Code, it shall be necessary that at least one
witness who knows the handwriting and signature of the testator explicitly declare
that the will and the signature are in the handwriting of the testator. If the will is
contested, at least three such witnesses shall be required. In the absence of any
such witnesses, (familiar with decedents handwriting) and if the court deem it
necessary, expert testimony may be resorted to.
The witnesses so presented do not need to have seen the execution of the
holographic will. They may be mistaken in their opinion of the handwriting, or they
may deliberately lie in affirming it is in the testators hand. However, the oppositor
may present other witnesses who also know the testators handwriting, or some
expert witnesses, who after comparing the will with other writings or letters of the
deceased, have come to the conclusion that such will has not been written by the
hand of the deceased. (Sec. 50, Rule 123). And the court, in view of such
contradictory testimony may use its own visual sense, and decide in the face of the
document, whether the will submitted to it has indeed been written by the testator.
Obviously, when the will itself is not submitted, these means of opposition, andof
assessing the evidence are not available. And then the only guaranty of authenticity 3:
the testators handwritinghas disappeared.
Therefore, the question presents itself, may a holographic will be probated upon
the testimony of witnesseswho have allegedly seen it and who declare that it was in
the handwriting of the testator? How can the oppositor prove that such document
was not in the testators handwriting? His witnesses who know testators
handwriting have not examined it. His experts can not testify, because there is no
way to compare the alleged testament with other documents admittedly, or proven

to be, in the testators hand. The oppositor will, therefore, be caught between the
upper millstone of his lack of knowledge of the will or the form thereof, and the
nether millstone of his inability to prove its falsity. Again the proponents witnesses
may be honest and truthful; but they may have been shown a faked document, and
having no interest to check the authenticity thereof have taken no pains to examine
and compare. Or they may be perjurers boldly testifying, in the knowledge that none
could convict them of perjury, because no one could prove that they have not been
shown a document which they believed was in the handwriting of the deceased. Of
course, the competency of such perjured witnesses to testify as to the handwriting
could be tested by exhibiting to them other writings sufficiently similar to those
written by the deceased; but what witness or lawyer would not foresee such a move
and prepare for it? His knowledge of the handwriting established, the witness (or
witnesses) could simply stick to his statement: he has seen and read a document
which he believed was in the deceaseds handwriting. And the court and the
oppositor would practically be at the mercy of such witness (or witnesses) not only
as to the execution, but also as to the contents of the will. Does the law permit such
a situation?
The Rules of Court, (Rule 77) approved in 1940, allow proof (and probate) of a lost
or destroyed will by secondary evidencethe testimony of witnesses, in lieu of the
original document. Yet such Rules could not have contemplated olographic wills
which could not then be validly made here. (See also Sec. 46, Rule 123; Art. 830-New
Civil Code.)
Could Rule 77 be extended, by analogy, to holographic wills?
Spanish commentators agree that one of the greatest objections to the
holographic will is that it may be lost or stolen 4an implied admission that such
loss or theft renders it useless.
This must be so, because the Civil Code requires it to be protocoled and
presented to the judge, (Art. 689) who shall subscribe it and require its identity to
be established by the three witnesses who depose that they have no reasonable
doubt that the will was written by the testator (Art. 691).
And if the judge
considers that the identity of the will has been proven he shall order that it be filed
(Art. 693). All these, imply presentation of the will itself. Art. 692 bears the same
implication, to a greater degree. It requires that the surviving spouse and the
legitimate ascendants and descendants be summoned so that they may make any
statement they may desire to submit with respect to the authenticity of the will.
As it is universally admitted that the holographic will is usually done by the

testator and by himself alone, to prevent others from knowing either its execution or
its contents, the above article 692 could not have the idea of simply permitting such
relatives to state whether they know of the will, but whether in the face of the
document itself they think the testator wrote it.
Obviously, fhis they cant do
unlessthe will itself is presented to the Court and to them.
Undoubtedly, the intention of the law is to give the near relatives the choice of
either complying with the will if they think it authentic, or to oppose it, if they think
it spurious.5 Such purpose is frustrated when the document is not presented for
their examination. If it be argued that such choice is not essential, because anyway
the relatives may oppose, the answer is that their opposition will be at a distinct
disadvantage, and they have the right and privilege to comply with the will, if
genuine, a right which they should not be denied by withholding inspection thereof
from them.
We find confirmation of these ideasabout exhibition of the document itselfin
the decision of the Supreme Court of Spain of June 5, 1925,
which denied protocolization or probate to a document containing testamentary
dispositions in the handwriting of the deceased, but apparently mutilated, the
signature and some words having been torn from it. Even in the face of allegations
and testimonial evidence (which was controverted), ascribing the mutilation to the
opponents of the will. The aforesaid tribunal declared that, in accordance with the
provision of the Civil Code (Spanish) the will itself, whole and unmutilated, must be
presented; otherwise, it shall produce no effect.

Considerando que sentado lo anterior, y estableciendose en el parrafo segundo del

articulo 688 del Codigo civil, que para que sea valido el testamento olografo debera estar
escrito todo el y firmado por testador, con expression del ano, mes y dia en que se otorque,
resulta evidente que para la validez y eficacia de esos testamentos, no basta la
demostracion mas o menos cumplida de que cuando se otorgaron se llenaron todos esos
requisites, sino que de la expresada redaction el precepto legal, y por el tiempo en que el
verbo se emplea, se desprende la necesidad de que el documento se encuentre en dichas
condiciones en el momento de ser presentado a la Autoridad competente, para su adveracion
y protocolizacion; y como consecuencia ineludible de ello, forzoso es affirmar que el de autos
carece de validez y aficacia, por no estar firmado por el testador, cualquiera que sea la causa
de la falta de firma, y sin per-juicio de las acciones que puedan ejercitar los perjudicados,
bien para pedir indemnizacion por el perjuicio a la persona culpable, si la hubiere, o su
castigo en via criminal si procediere, por constituir dicha omision un defecto insubsanable *
* *.

This holding aligns with the ideas on holographic wills in the Fuero Juzgo,
admittedly the basis of the Spanish Civil Code provisions on the matter.6
PRECEDENTES LEGALESFuero Juzgo, libro segundo, titulo V, ley 15E depues que los
herederos e sus fijos ovieren esta manda, fasta xxx annos muestrenla al obispo de la tierra,
o al juez fasta VI meses y el obispo 6 el juez tomen otros tales tres escritos, que fuesen
fechos por su mano daquel que fizo la manda; e por aquellos escriptos, si semjara la letra de
la manda, sea confirmada la manda. E depues que todo esto fuere connoscido, el obispo o el
juez, o otras testimonios confirmen el escripto de la manda otra vez, y en esta manera vala
la manda. (Art. 689, ScaevolaCodigo Civil.)

(According to the Fuero above, the will itself must be compared with specimens of
the testators handwriting.)
All of which can only mean: the courts will not distribute the property of the
deceased in accordance with his holographic will, unless they are shown his
handwriting and signature.7
Parenthetically, it may be added that even the French Civil Law considers the
loss of the holographic will to be fatal. (Planiol y Ripert, Derecho Civil Frances,
traduction por Diaz Cruz, 1946, Tomo V, page 555).
Taking all the above circumstances together, we reachthe conclusion that the
execution and the contents of a lost or destroyed holographic will may not be proved
by the bare testimony of witnesses who have seen and/or read such will. 8
Under the provisions of Art. 838 of the New Civil Code, we are empowered to
adopt this opinion as a Rule of Court for the allowance of such holographic wills. We
hesitate, however, to make this Rule decisive of this controversy, simultaneously
with its promulgation. Anyway, decision of the appeal may rest on the sufficiency,
rather the insufficiency, of the evidence presented by petitioner Fausto E. Gan.
At this point, before proceeding further, it might be convenient to explain why,
unlike holographic wills, ordinary wills may be proved by testimonial evidence when
lost or destroyed. The difference lies in the nature of the wills. In the first, the only
guarantee of authenticity is the handwriting itself; in the second, the testimony of
the subscribing or instrumental witnesses (and of the notary, now). The loss of the
holographic will entails the loss of the only medium of proof; if the ordinary will is
lost, the subscribing witnesses are available to authenticate.
In the case of ordinary wills, it is quite hard to convince three witnesses (four
with the notary) deliberately to lie. And then their lies could be checked and
exposed, their whereabouts and acts on the particular day, the likelihood that they
would be called by the testator, their intimacy with the testator, etc. And if they

were intimates or trusted friends of the testator they are not likely to lend
themselves to any fraudulent scheme to distort his wishes. Last but not least, they
can not receive anything on account of the will.
Whereas in the case of holographic wills, if oral testimony were admissible9 only
one man could engineer the whole fraud this way: after making a clever or passable
imitation of the handwriting and signature of the deceased, he may contrive to let
three honest and credible witnesses see and read the forgery; and the latter, having
no interest, could easily fall for it, and in court they would in all good faith affirm its
genuineness and authenticity. The will having been lostthe forger may have
purposely destroyed it in an accidentthe oppositors have no way to expose the
trick and the error, because the document itself is not at hand. And considering that
the holographic will may consist of two or three pages, and only one of them need be
signed, the substitution of the unsigned pages, which may be the most important
ones, may go undetected.
If testimonial evidence of holographic wills be permitted, one more objectionable
featurefeasibility of forgery would be added to the several objections to this kind
of wills listed by Castan, Sanchez Roman and Valverde and other well-known
Spanish Commentators and teachers of Civil Law.10
One more fundamental difference: in the case of a lost will, the three subscribing
witnesses would be testifying to a fact which they saw, namely the act of the testator
of subscribing the will; whereas in the case of a lost holographic will, the witnesses
would testify as to their opinionof the handwriting which they allegedly saw, an
opinion which can not be tested in court, nor directly contradicted by the oppositors,
because the handwriting itself is not at hand.
Turning now to the evidence presented by the petitioner, we find ourselves
sharing the trial judges disbelief. In
addition to the dubious circumstances described in the appealed decision, we find it
hard to believe that the deceased should show her will precisely to relatives who had
received nothing from it: Socorro Olarte and Primitivo Reyes. These could pester her
into amending her will to give them a share, or threaten to reveal its execution to
her husband Ildefonso Yap. And this leads to another point: if she wanted so much
to conceal the will from her husband, why did she not entrust it to her beneficiaries?
Opportunity to do so was not lacking: for instance, her husbands trip to Davao, a
few days after the alleged execution of the will.
In fine, even if oral testimony were admissible to establish and probate a lost
holographic will, we think the evidence submitted by herein petitioner is so tainted

with improbabilities and inconsistencies that it fails to measure up to that clear

and distinct proof required by Rule 77, sec. 6.11
Wherefore, the rejection of the alleged will must be sustained.
Judgment affirmed, with costs against petitioner.
Paras, C.J., Padilla, Montemayor, Reyes, A., Bautista Angelo, Concepcion, Reyes,
J.B.L., Endencia and Felix, JJ.,concur.
Judgment affirmed.

No. L-58509. December 7, 1982.

IN THE MATTER OF THE PETITION TO APPROVE THE WILL OF RICARDO B.

BONILLA, deceased, MARCELA RODELAS, petitioner-appellant, vs. AMPARO
ARANZA, ET. AL., oppositors-appellees, ATTY. LORENZO SUMULONG,
intervenor.
Civil Law; Wills; Holographic Will; Admissibility of photos tatic or xerox copy of a lost
or destroyed will.However, if the holographic will has been lost or destroyed and no other
copy is available, the will can not be probated because the best and only evidence is the
handwriting of the testator in said will. It is necessary that there be a comparison between

sample handwritten statements of the testator and the handwritten will. But, a photostatic
copy or xerox copy of the holographic will may be allowed because comparison can be made
with the standard writings of the testator. In the case of Gan vs. Yap, 104 Phil 509, the
Court ruled that the execution and the contents of a lost or destroyed holographic will may
not be proved by the bare testimony of witnesses who have seen and/or read such will. The
will itself must be presented; otherwise, it shall produce no effect. The law regards the
document itself as material proof of authenticity. But, in Footnote 8 of said decision, it says
that Perhaps it may be proved by a photographic or photostatic copy. Even a mimeographed
or carbon copy; or by other similar means, if any, whereby the authenticity of the
handwriting of the deceased may be exhibited and tested before the probate court.
Evidently, the photostatic or xerox copy of the lost or destroyed holographic will may be
admitted because then the authenticity of the handwriting of the deceased can be
determined by the probate court.

PETITION to review the order of the Court of Appeals.

The facts are stated in the opinion of the Court.
Luciano A. Joson for petitioner-appellant.
Cesar C. Paralejo for oppositor-appellee.
RELOVA, J.:
This case was certified to this Tribunal by the Court of Appeals for final
determination pursuant to Section 3, Rule 50 of the Rules of Court.
As found by the Court of Appeals:
x x x On January 11, 1977, appellant filed a petition with the Court of First Instance of
Rizal for the probate of the holographic will of Ricardo B. Bonilla and the issuance of letters
testamentary in her favor. The petition, docketed as Sp. Proc. No. 8432, was opposed by the
appellees Amparo Aranza Bonilla, Wilferine Bonilla Treyes, Expedita Bonilla Frias and
Ephraim Bonilla on the following grounds:
1. (1)Appellant was estopped from claiming that the deceased left a will by failing to
produce the will within twenty days of the death of the testator as required by Rule
75, section 2 of the Rules of Court;

2. (2)The alleged copy of the alleged holographic will did not contain a disposition of
property after death and was not intended to take effect after death, and therefore
it was not a will;
3. (3)The alleged holographic will itself, and not an alleged copy thereof, must be
produced, otherwise it would produce no effect, as held in Gan v. Yap, 104 Phil. 509;
and
4. (4)The deceased did not leave any will, holographic or otherwise, executed and
attested as required by law.
The appellees likewise moved for the consolidation of the case with another case (Sp.
Proc. No. 8275). Their motion was granted by the court in an order dated April 4, 1977.
On November 13, 1978, following the consolidation of the cases, the appellees moved
again to dismiss the petition for the probate of the will. They argued that:
1. (1)The alleged holographic was not a last will but merely an instruction as to the
management and improvement of the schools and colleges founded by decedent
Ricardo B. Bonilla; and
2. (2)Lost or destroyed holographic wills cannot be proved by secondary evidence
unlike ordinary wills.
Upon opposition of the appellant, the motion to dismiss was denied by the court in its
order of February 23, 1979.
The appellees then filed a motion for reconsideration on the ground that the order was
contrary to law and settled pronouncements and rulings of the Supreme Court, to which the
appellant in turn filed an opposition. On July 23, 1979, the court set aside its order of
February 23, 1979 and dismissed the petition for the probate of the will of Ricardo B.
Bonilla. The court said:
. . . It is our considered opinion that once the original copy of the holographic will is lost, a copy
thereof cannot stand in lieu of the original.
In the case of Gan vs. Yap, 104 Phil. 509, 522, the Supreme Court held that in the matter of
holographic wills the law, it is reasonable to suppose, regards the document itself as the material
proof of authenticity of said wills.
MOREOVER, this Court notes that the alleged holographic will was executed on January 25,
1962 while Ricardo B. Bonilla died on May 13, 1976. In view of the lapse of more than 14 years from

the time of the execution of the will to the death of the decedent, the fact that the original of the will
could not be located shows to our mind that the decedent had discarded before his death his allegedly
missing Holographic Will.

Appellants motion for reconsideration was denied. Hence, an appeal to the Court of
Appeals in which it is contended that the dismissal of appellants petition is
contrary to law and well-settled jurisprudence.
On July 7, 1980, appellees moved to forward the case to this Court on the ground
that the appeal does not involve question of fact and alleged that the trial court
committed the following assigned errors:
1. I.THE LOWER COURT ERRED IN HOLDING THAT A LOST HOLOGRAPHIC
WILL MAY NOT BE PROVED BY A COPY THEREOF;
2. II.THE LOWER COURT ERRED IN HOLDING THAT THE DECEDENT HAS
DISCARDED BEFORE HIS DEATH THE MISSING HOLOGRAPHIC WILL;
3. III.THE LOWER COURT ERRED IN DISMISSING APPELLANTS WILL.

The only question here is whether a holographic will which was lost or cannot be
found can be proved by means of a photostatic copy. Pursuant to Article 811 of the
Civil Code, probate of holographic wills is the allowance of the will by the court after
its due execution has been proved. The probate may be uncontested or not. If
uncontested, at least one identifying witness is required and, if no witness is
available, experts may be resorted to. If contested, at least three identifying
witnesses are required. However, if the holographic will has been lost or destroyed
and no other copy is available, the will can not be probated because the best and
only evidence is the handwriting of the testator in said will. It is necessary that
there be a comparison between sample handwritten statements of the testator and
the handwritten will. But, a photostatic copy or xerox copy of the holographic will
may be allowed because comparison can be made with the standard writings of the
testator. In the case of Gan vs. Yap, 104 Phil. 509, the Court ruled that the
execution and the contents of a lost or destroyed holographic will may not be proved
by the bare testimony of witnesses who have seen and/or read such will The will
itself must be presented; otherwise, it shall produce no effect. The law regards the
document itself as material proof of authenticity. But, in Footnote 8 of said
decision, it says that Perhaps it may be proved by a photographic or photostatic

copy. Even a mimeographed or carbon copy; or by other similar means, if any,

whereby the authenticity of the handwriting of the deceased may be exhibited and
tested before the probate court. Evidently, the photostatic or xerox copy of the lost
or destroyed holographic will may be admitted because then the authenticity of the
handwriting of the deceased can be determined by the probate court.
WHEREFORE, the order of the lower court dated October 3, 1979, denying
appellants motion for reconsideration dated August 9, 1979, of the Order dated July
23, 1979, dismissing her petition to approve the will of the late Ricardo B. Bonilla, is
hereby SET ASIDE.
SO ORDERED.
Teehankee, Actg. C.J., Melencio-Herrera, Plana,Vasquez and Gutierrez, Jr.,
JJ., concur.
o0o

[No. L-14003. August 5, 1960]

FEDERICO AZAOLA, petitioner and appellant, vs.CESARIO SINGSON, oppositor
and appellee.
1. 1.WILLS AND LAST TESTAMENT; HOLOGRAPHIC WILL; PROBATE OF;
REQUISITE AS TO NUMBER OF WITNESSES.Since the authenticity of the
holographic will was not contested, proponent was not required to produce more
than one witness; but even if the genuineness of the holographic will were
contested, Article 811 of our present Civil Code cannot be interpreted as to require
the compulsory presentation of three witnesses to identify the handwriting of the
testator, under penalty of having the probate denied. Since no witness may have
been present at the execution of a holographic will, none being required by law, it
becomes obvious that the existence of witnesses possessing the requisite
qualifications is a matter beyond the control of the proponent.

1. 2.ID.; ID.; ID.; PRODUCTION OF WITNESSES MERELY PREREQUISITE.

Where the will is holographic, no witness need be present and the rule requiring
production of three witnesses must be deemed merely permissive if absurd results
are to be avoided'.
1. 3.ID.; RESORT TO EXPERT EVIDENCE.Under Article 811, the resort to expert
evidence is conditioned by the words "if the Court deem it necessary", which reveals
that what the law deems essential is that the Court should be convinced of the
will's authenticity.

APPEAL from a judgment of the Court of First Instance of Rizal (Quezon City).
Yatco, J.
The facts are stated in the opinion of the Court.
F. Lavides and L. B. Alcuaz for appellant.
Vicente J. Cuna and P. S. Singson for appellee.
REYES, J. B. L., J.:
This appeal, taken on points of law from a decision rendered on 15 January 1958 by
the Court of First Instance of Quezon City in its Special Proceedings No. Q2640,
involves the determination of the quantity of evidence required for the probate of a
holographic will.
The established facts are thus summarized in the decision appealed from (Rec.
App. pp. 22-24) :
"Briefly speaking, the following facts were established by the petitioner; that on September
9, 1957, Fortunata S. Vda. de Yance died at 13 Luskot, Quezon City, known to be the last
residence of said testatrix; that Francisco Azaola, petitioner herein for probate of the
holographic will, submitted the said holographic will (Exh. C) whereby Maria Milagros
Azaola was made the sole heir as against the nephew of the deceased Cesario Singson; that
witness Francisco Azaola testified that he saw the holographic will (Exh. C) one month,
more or less, before the death of the testatrix, as the same was handed to him and his wife;
that the witness testified also that he recognized all the signatures appearing in the
holographic will (Exh. C) as the handwriting of the testatrix and to reinforce, said
statement, witness presented the mortgage (Exh. E), the special power of attorney (Exh. F),
and the general power of attorney (Exh. F-1), besides the deeds of sale (Exhs. G and G-1)

including an affidavit (Exh. G-2), and that there were further exhibited in court two
residence certificates (Exhs. H and H-1) to show the signatures of the testatrix, for
comparison purposes; that said witness, Azaola, testified that the penmanship appearing in
the aforesaid documentary evidence is in the handwriting of -the testatrix as well as the
signatures appearing therein are the signatures of the testatrix; that said witness, in
answer to a question of his counsel admitted that the holographic will was handed to him
by the testatrix, "apparently it must have been written by her" (t.s.n., p. 11). However, on
page 16 on the same transcript of the stenographic notes, when the same witness was asked
by counsel if he was familiar with the penmanship and handwriting of the deceased
Fortunata Vda. de Yance, he answered positively in the affirmative and when he was asked
again whether the penmanship referred to in the previous answer as appearing in the
holographic will (Exh. C) was hers (testatrix'), he answered, "I would definitely say it is
hers"; that it was also established in the proceedings that the assessed value of the property
of the deceased in Luskot, Quezon City, is in the amount of P7,000.00."

The opposition to the probate was on the ground that (1) the execution of the will
was procured by undue and improper pressure and influence on the part of the
petitioner and his wife, and (2) that the testatrix did not seriously intend the
instrument to be her last will, and that the same was actually written either on the
5th or 6th day of August 1957 and not on November 20, 1956 as appears on the will.
The probate was denied on the ground that under Article 811 of the Civil Code,
the proponent must present three witnesses who could declare that the will and the
signature are in the writing of the testatrix, the probate being contested; and
because the lone witness presented by the proponent "did not prove sufficiently that
the body of the will was written in the handwriting of the testatrix."
The proponent appealed, urging: first, that he was not bound to produce more
than one witness because the will's authenticity was not questioned; and second,
that
Article 811 does not mandatorily require the production of three witnesses to
identify the handwriting and signature of a holographic will, even if its authenticity
should be denied by the adverse party. Article 811 of the Civil Code of the
Philippines is to the following effect:
"ART. 811. In the probate of a holographic will, it shall be necessary that at least one
witness who knows the handwriting and signature of the testator explicity declare that the

will and the signature are in the handwriting of the testator. If the will is contested, at least
three of such witnesses shall be required.
In the absence of any competent witness referred to in the preceding paragraph, and if
the court deems it necessary, expert testimony may be resorted to. (691a)"

We agree with the appellant that since the authenticity of the will was not
contested, he was not required to produce more than one witness; but even if the
genuineness of the holographic will were contested, we are of the opinion that
Article 811 of our present Civil Code can not be interpreted as to require the
compulsory presentation of three witnesses to identify the handwriting of the
testator, under penalty of having the probate denied. Since no witness may have
been present at the execution of a holographic will, none being required by law (Art.
810, new Civil Code), it becomes obvious that the existence of witnesses possessing
the requisite qualifications is a matter beyond the control of the proponent. For it is
not merely a question of finding and producing any three witnesses; they must be
witnesses "who know the handwriting and signature of the testator" and who -can
declare (truthfully, of course, even if the law does not so express) "that the will and
the signature are in the handwriting of the testator". There may be no available
witness acquainted with the testator's hand; or even if so familiarized, the witnesses
may be unwilling to give a positive opinion. Compliance with the rule of paragraph 1
of Article 811 may thus become an impossibility. That is evidently the reason why
the second paragraph of Article 811 prescribes that
"in the absence of any competent witness referred to in the preceding paragraph, and if the
court deems it necessary, expert testimony may be resorted to."

As can be seen, the law foresees the possibility that no qualified witness may be
found (or what amounts to the same thing, that no competent witness may be
willing to testify to the authenticity of the will), and provides for resort to expert
evidence to supply the deficiency.
It may be true that the rule of this article (requiring that three witnesses be
presented if the will is contested and only one if no -contest is had) was derived from
the rule established for ordinary testaments (cf. Cabang vs.Delfinado, 45 Phil.,
291; Tolentino vs. Francisco, 57 Phil., 742). But it can not be ignored that the
requirement can be considered mandatory only in the case of ordinary testaments,
precisely because the presence of at least three witnesses at the execution of

ordinary wills is made by law essential to their validity (Art. 805). Where the will is
holographic, no witness need be present (Art. 10), and the rule requiring production
of three witnesses must be deemed merely permissive if absurd results are to be
avoided.
Again, under Article 811, the resort to expert evidence is conditioned by the
words "if the Court deem it necessary", which reveal that what the law deems
essential is that the Court should be convinced of the will's authenticity. Where the
prescribed number of witnesses is produced and the court is convinced by their
testimony that the will is genuine, it may consider it unnecessary to call for expert
evidence. On the other hand, if no competent witness is available, or none of those
produced is convincing, the Court may still, and in fact it should, resort to
handwriting experts. The duty of the court, in fine, is to exhaust all available lines
of inquiry, for the state is as much interested as the proponent that the true
intention of the testator be carried into effect.
Commenting on analogous provisions of Article 691 of the Spanish Civil Code of
1889, the noted Commentator, Mucius Scaevola (Vol. 12, 2nd Ed., p. 421), sagely
remarks:
"La manera como est concebida la redaccin del ltimo apartado de dicho precepto induce
la conclusin de que siempre o por lo menos, en la mayor parte de los casos, el Juez debe
acudir al criterio pericial para que le ilustre acerca de la autenticidad del testamento
olgrafo, aunque ya estn insertas en los autos del expediente las declaraciones testificales.
La prudencia con que el Juez debe de proceder en resoluciones de transcendencia asi lo
exige, y la ndole delicada y peligrosa del testamento olgrafo lo hace necesario para mayor
garanta de todos los intereses comprometidos en aquel.
En efecto, el cotejo pericial de letras puede ser una confirmacion facultativa del dicho
profano de los testigos y un modo de desvanecer las ultimas dudas que pudieran ocurrir al
Juez acerca de la autenticidad que trata de averiguar y declarar. Para eso se ha escrito la
frase del citado ltimo apartado, (siempre que el Juez lo estime conveniente), haya habido o
no testigos y dudaran o no estos respecto de los extremos por que son preguntados.
El arbitrio judicial en este caso debe de formarse con independencia de los sucesos y de
su significacin, para responder debidamente de las resoluciones que haya de dictar."

And because the law leaves it to the trial court to decide if experts are still needed,
no unfavourable inference can be drawn from a party's failure to offer expert

evidence, until and unless the court expresses dissatisfaction with the testimony of
the lay witnesses.
Our conclusion is that the rule of the first paragraph of Article 811 of the Civil
Code is merely directory and is not mandatory.
Considering, however, that this is the first occasion in which this Court has been
called upon to construe the import of said article, the interest of justice would be
better served, in our opinion, by giving the parties ample opportunity to adduce
additional evidence, including expert witnesses, should the Court deem them
necessary.
In view of the foregoing, the decision appealed from is set aside, and the records
ordered remanded to the Court of origin, with instructions to hold a new trial in
conformity with this opinion. But evidence already on record shall not be retaken.
No costs.
Bengzon, Padilla, Bautista
Angelo, Labrador,Concepcin, Barrera, and Gutirrez David, JJ., concur.
Judgment set aside, records remanded to lower court for new trial.
______________

G.R. No. 123486. August 12, 1999.

EUGENIA
RAMONAL
CODOY
and
MANUEL
RAMONAL,
petitioners, vs. EVANGELINE R. CALUGAY, JOSEPHINE SALCEDO and
EUFEMIA PATIGAS, respondents.
Wills and Succession; Holographic Wills; Statutory Construction; Words and
Phrases; Article 811 of the Civil Code is mandatory; Shall in a statute commonly denotes
an imperative obligation and is inconsistent with the idea of discretion and that the
presumption is that the word shall, when used in a statute, is mandatory.We are
convinced, based on the language used, that Article 811 of the Civil Code is mandatory. The

word shall connotes a mandatory order. We have ruled that shall in a statute commonly
denotes an imperative obligation and is inconsistent with the idea of discretion and that the
presumption is that the word shall, when used in a statute, is mandatory.
Same; Same; Same; The goal to be achieved by Article 811 is to give effect to the wishes
of the deceased and the evil to be prevented is the possibility that unscrupulous individuals
who for their benefit will employ means to defeat the wishes of the testator.Laws are enacted
to achieve a goal intended and to guide against an evil or mischief that aims to prevent. In
the case at bar, the goal to achieve is to give effect to the wishes of the deceased and the evil
to be prevented is the possibility that unscrupulous individuals who for their benefit will
employ means to defeat the wishes of the testator.
Same; Same; Same; The possibility of a false document being adjudged as the will of
the testator cannot be eliminated, which is why if the holographic will is contested, the law
requires three witnesses to declare that the will was in the handwriting of the deceased.In
the case of Ajero vs. Court of Appeals, we said that the object of the solemnities
surrounding the execution of wills is to close the door against bad faith and fraud, to avoid
substitution of wills and testaments and to guaranty their truth and authenticity.
Therefore, the laws on this subject should be interpreted in such a way as to attain these
primordial ends. But, on the other hand, also one must not lose sight of the fact that it is
not the object of the law to restrain and curtail the exercise of the right to make a will.
However, we cannot eliminate the possibility of a false document being adjudged as the will
of the testator, which is why if the holographic will is contested, that law requires three
witnesses to declare that the will was in the handwriting of the deceased.

PETITION for review on certiorari of a decision of the Court of Appeals.

The facts are stated in the opinion of the Court.
Amadeo D. Seno for petitioners.
Roderico C. Villaroya for private respondents.
PARDO, J.:
Before us is a petition for review on certiorari of the decision of the Court of
Appeals and its resolution denying reconsideration, ruling:
1

Upon the unrebutted testimony of appellant Evangeline Calugay and witness Matilde
Ramonal Binanay, the authenticity of testators holographic will has been established and

the handwriting and signature therein (Exhibit S) are hers, enough to probate said will.
Reversal of the judgment appealed from and the probate of the holographic will in question
be called for. The rule is that after plaintiff has completed presentation of his evidence and
the defendant files a motion for judgment on demurrer to evidence on the ground that upon
the facts and the law plaintiff has shown no right to relief, if the motion is granted and the
order to dismissal is reversed on appeal, the movant loses his right to present evidence in
his behalf (Sec. 1, Rule 35, Revised Rules of Court). Judgment may, therefore, be rendered
for appellant in the instant case.
Wherefore, the order appealed from is REVERSED and judgment rendered allowing the
probate of the holographic will of the testator Matilde Seo Vda. de Ramonal.
2

The facts are as follows:

On April 6, 1990, Evangeline Calugay, Josephine Salcedo and Eufemia Patigas,
devisees and legatees of the holographic will of the deceased Matilde Seo Vda. de
Ramonal, filed with the Regional Trial Court, Misamis Oriental, Branch 18, a
petition for probate of the holographic will of the deceased, who died on January 16,
1990.
3

In the petition, respondents claimed that the deceased Matilde Seo Vda. de
Ramonal, was of sound and disposing mind when she executed the will on August
30, 1978, that there was no fraud, undue influence, and duress employed in the
person of the testator, and the will was written voluntarily.
The assessed value of the decedents property, including all real and personal
property was about P400,000.00, at the time of her death.
4

On June 28, 1990, Eugenia Ramonal Codoy and Manuel Ramonal filed an
opposition to the petition for probate, alleging that the holographic will was a
forgery and that the same is even illegible. This gives an impression that a third
hand of an interested party other than the true hand of Matilde Seo Vda. de
Ramonal executed the holographic will.
5

Petitioners argued that the repeated dates incorporated or appearing on the will
after every disposition is out of the ordinary. If the deceased was the one who
executed the will, and was not forced, the dates and the signature should appear at
the bottom after the dispositions, as regularly done and not after every disposition.
And assuming that the holographic will is in the handwriting of the deceased, it was

procured by undue and improper pressure and influence on the part of the
beneficiaries, or through fraud and trickery.
Respondents presented six (6) witnesses and various documentary evidence.
Petitioners instead of presenting their evidence, filed a demurrer to evidence,
claiming that respondents failed to establish sufficient factual and legal basis for
the probate of the holographic will of the deceased Matilde Seo Vda. de Ramonal.
6

On November 26, 1990, the lower Court issued an order, the dispositive portion of
which reads:
WHEREFORE, in view of the foregoing consideration, the Demurrer to Evidence having
being well taken, same is granted, and the petition for probate of the document (Exhibit
S) on the purported Holographic Will of the late Matilde Seo Vda. de Ramonal, is denied
for insufficiency of evidence and lack of merits.
7

On December 12, 1990, respondents filed a notice of appeal, and in support of their
appeal, the respondents once again reiterated the testimony of the following
witnesses, namely: (1) Augusto Neri; (2) Generosa Senon; (3) Matilde Ramonal
Binanay; (4) Teresita Vedad; (5) Fiscal Rodolfo Waga; and (6) Evangeline Calugay.
8

To have a clear understanding of the testimonies of the witnesses, we recite an

account of their testimonies.
Augusto Neri, Clerk of Court, Court of First Instance of Misamis Oriental, where
the special proceedings for the probate of the holographic will of the deceased was
filed. He produced and identified the records of the case. The documents presented
bear the signature of the deceased, Matilde Seo Vda. de Ramonal, for the purpose
of laying the basis for comparison of the handwriting of the testatrix, with the
writing treated or admitted as genuine by the party against whom the evidence is
offered.
Generosa Senon, election registrar of Cagayan de Oro, was presented to produce
and identify the voters affidavit of the decedent. However, the voters affidavit was
not produced for the same was already destroyed and no longer available.
Matilde Ramonal Binanay, testified that the deceased Matilde Seo Vda. de
Ramonal was her aunt, and that after the death of Matildes husband, the latter

lived with her in her parents house for eleven (11) years, from 1958 to 1969. During
those eleven (11) years of close association with the deceased, she acquired
familiarity with her signature and handwriting as she used to accompany her
(deceased Matilde Seo Vda. de Ramonal) in collecting rentals from her various
tenants of commercial buildings, and the deceased always issued receipts. In
addition to this, she (witness Matilde Binanay) assisted the deceased in posting the
records of the accounts, and carried personal letters of the deceased to her creditors.
Matilde Ramonal Binanay further testified that at the time of the death of
Matilde Vda. de Ramonal, she left a holographic will dated August 30, 1978, which
was personally and entirely written, dated and signed, by the deceased and that all
the dispositions therein, the dates, and the signatures in said will, were that of the
deceased.
Fiscal Rodolfo Waga testified that before he was appointed City Fiscal of Cagayan
de Oro, he was a practicing lawyer, and handled all the pleadings and documents
signed by the deceased in connection with the intestate proceedings of her late
husband, as a result of which he is familiar with the handwriting of the latter. He
testified that the signature appearing in the holographic will was similar to that of
the deceased, Matilde Seo Vda. de Ramonal, but he can not be sure.
The fifth witness presented was Mrs. Teresita Vedad, an employee of the
Department of Environment and Natural Resources, Region 10. She testified that
she processed the application of the deceased for pasture permit and was familiar
with the signature of the deceased, since the deceased signed documents in her
presence, when the latter was applying for pasture permit.
Finally, Evangeline Calugay, one of the respondents, testified that she had lived
with the deceased since birth, and was in fact adopted by the latter. That after a
long period of time she became familiar with the signature of the deceased. She
testified that the signature appearing in the holographic will is the true and
genuine signature of Matilde Seo Vda. de Ramonal.
The holographic will which was written in Visayan, is translated in English as
follows:
Instruction

***
1. My share at Cogon, Raminal Street, for Evangeline Calugay.
(Sgd) Matilde Vda de Ramonal
August 30, 1978
2. Josefina Salcedo must be given 1,500 square meters at Pinikitan Street.
(Sgd) Matilde Vda de Ramonal
August 30, 1978
3. My jewelrys shall be divided among:
1. 1.Eufemia Patigas
2. 2.Josefina Salcedo
3. 3.Evangeline Calugay
(Sgd) Matilde Vda de Ramonal
August 30, 1978
4. I bequeath my one (1) hectare land at Mandumol, Indahag to Evangeline R. Calugay
(Sgd) Matilde Vda de Ramonal
August 30, 1978
5. Give the 2,500 Square Meters at Sta. Cruz Ramonal Village in favor of Evangeline R.
Calugay, Helen must continue with the Sta. Cruz, once I am no longer around.
(Sgd) Matilde Vda de Ramonal
August 30, 1978
6. Bury me where my husband Justo is ever buried.
(Sgd) Matilde Vda de Ramonal

August 30,1978
Gene and Manuel:
Follow my instruction in order that I will rest peacefully.
Mama
Matilde Vda de Ramonal

On October 9, 1995, the Court of Appeals, rendered deci-sion ruling that the appeal
was meritorious. Citing the decision in the case of Azaola vs. Singson, 109 Phil. 102,
penned by Mr. Justice J.B.L. Reyes, a recognized authority in civil law, the Court of
Appeals held:
9

x x x even if the genuineness of the holographic will were contested, we are of the opinion
that Article 811 of our present civil code can not be interpreted as to require the compulsory
presentation of three witnesses to identify the handwriting of the testator, under penalty of
having the probate denied. Since no witness may have been present at the execution of the
holographic will, none being required by law (Art. 810, new Civil Code), it becomes obvious
that the existence of witnesses possessing the requisite qualifications is a matter beyond the
control of the proponent. For it is not merely a question of finding and producing any three
witnesses; they must be witnesses who know the handwriting and signature of the
testator and who can declare (truthfully, of course, even if the law does not express) that
the will and the signature are in the handwriting of the testator. There may be no
available witness acquainted with the testators hand; or even if so familiarized, the witness
may be unwilling to give a positive opinion. Compliance with the rule of paragraph 1 of
article 811 may thus become an impossibility. That is evidently the reason why the second
paragraph of article 811 prescribes that
in the absence of any competent witness referred to in the preceding paragraph, and if
the court deems it necessary, expert testimony may be resorted to.
As can be seen, the law foresees the possibility that no qualified witness may be found
(or what amounts to the same thing, that no competent witness may be willing to testify to
the authenticity of the will), and provides for resort to expert evidence to supply the
deficiency.
It may be true that the rule of this article (requiring that three witnesses be presented
if the will is contested and only one if no contest is had) was derived from the rule

established for ordinary testaments (CF Cabang vs. Delfinado, 45 Phil. 291; Tolentino v.
Francisco, 57 Phil. 742). But it can not be ignored that the requirement can be considered
mandatory only in case of ordinary testaments, precisely because the presence of at least
three witnesses at the execution of ordinary wills is made by law essential to their validity
(Art. 805). Where the will is holographic, no witness need be present (Art. 10), and the rule
requiring production of three witnesses must be deemed merely permissive if absurd results
are to be avoided.
Again, under Art. 811, the resort to expert evidence is conditioned by the words if the
court deem it necessary, which reveal that what the law deems essential is that the court
should be convinced of the wills authenticity. Where the prescribed number of witnesses is
produced and the court is convinced by their testimony that the will is genuine, it may
consider it unnecessary to call for expert evidence. On the other hand, if no competent
witness is available, or none of those produced is convincing, the court may still, and in fact
it should resort to handwriting experts. The duty of the court, in fine, is to exhaust all
available lines of inquiry, for the state is as much interested as the proponent that the true
intention of the testator be carried into effect.
Paraphrasing Azaola vs. Singson, even if the genuineness of the holographic will were
contested, Article 811 of the civil code cannot be interpreted as to require the compulsory
presentation of three witnesses to identify the handwriting of the testator, under penalty of
the having the probate denied. No witness need be present in the execution of the
holographic will. And the rule requiring the production of three witnesses is merely
permissive. What the law deems essential is that the court is convinced of the authenticity
of the will. Its duty is to exhaust all available lines of inquiry, for the state is as much
interested in the proponent that the true intention of the testator be carried into effect. And
because the law leaves it to the trial court to decide if experts are still needed, no
unfavorable inference can be drawn from a partys failure to offer expert evidence, until and
unless the court expresses dissatisfaction with the testimony of the lay witnesses.
10

According to the Court of Appeals, Evangeline Calugay, Matilde Ramonal Binanay

and other witnesses definitely and in no uncertain terms testified that the
handwriting and signature in the holographic will were those of the testator herself.
Thus, upon the unrebutted testimony of appellant Evangeline Calugay and
witness Matilde Ramonal Binanay, the Court of Appeals sustained the authenticity
of the holographic will and the handwriting and signature therein, and allowed the
will to probate.
Hence, this petition.

The petitioners raise the following issues:

1. (1)Whether or not the ruling of the case of Azaola vs. Singson, 109 Phil. 102, relied
upon by the respondent Court of Appeals, was applicable to the case.

2. (2)Whether or not the Court of Appeals erred in holding that private respondents
had been able to present credible evidence to prove that the date, text, and
signature on the holographic will were written entirely in the hand of the testatrix.
3. (3)Whether or not the Court of Appeals erred in not analyzing the signatures in the
holographic will of Matilde Seo Vda. de Ramonal.

In this petition, the petitioners ask whether the provisions of Article 811 of the Civil
Code are permissive or mandatory. The article provides, as a requirement for the
probate of a contested holographic will, that at least three witnesses explicitly
declare that the signature in the will is the genuine signature of the testator.
We are convinced, based on the language used, that Article 811 of the Civil Code
is mandatory. The word shall connotes a mandatory order. We have ruled that
shall in a statute commonly denotes an imperative obligation and is inconsistent
with the idea of discretion and that the presumption is that the word shall, when
used in a statute, is mandatory.
11

Laws are enacted to achieve a goal intended and to guide against an evil or
mischief that aims to prevent. In the case at bar, the goal to achieve is to give effect
to the wishes of the deceased and the evil to be prevented is the possibility that
unscrupulous individuals who for their benefit will employ means to defeat the
wishes of the testator.
So, we believe that the paramount consideration in the present petition is to
determine the true intent of the deceased.
An exhaustive and objective consideration of the evidence is imperative to establish
the true intent of the testator.
It will be noted that not all the witnesses presented by the respondents testified
explicitly that they were familiar with the handwriting of the testator. In the case of
Augusto Neri, clerk of court, Court of First Instance, Misamis Oriental, he merely
identified the record of Special Proceedings No. 427 before said court. He was not

presented to declare explicitly that the signature appearing in the holographic was
that of the deceased.
Generosa E. Senon, the election registrar of Cagayan de Oro City, was presented
to identify the signature of the deceased in the voters affidavit, which was not even
produced as it was no longer available.
Matilde Ramonal Binanay, on the other hand, testified that:

Q
.

And you said for eleven (11) years Matilde Vda. de

Ramonal resided with your parents at Pinikitan, Cagayan
de Oro City. Would you tell the court what was your occ
upation or how did Matilde Vda. de Ramonal keep her self
busy that time?

A
.

Collecting rentals.

Q
.

From where?

A
.

From the land rentals and commercial buildings at

Pabayo-Gomez streets.
12

xxx
Q
.

Who sometime accompany her?

A
.

I sometimes accompany her

Q
.

In collecting rentals does she issue receipts?

A
.

Yes, sir.

13

xxx
Q
.

Showing to you the receipt dated 23 October 1979, is this

the one you are referring to as one of the receipts which
she issued to them?

A
.

Yes, sir.

Q
.

Now there is that signature of Matilde Vda. De Ramonal,

whose signature is that Mrs. Binanay?

A
.

Matilde Vda. De Ramonal.

Q
.

Why do you say that that is a signature of Matilde Vda.

De Ramonal?

A
.

I am familiar with her signature.

Q
.

Now, you tell the court Mrs. Binanay, whether you know
Matilde Vda. de Ramonal kept records of the accounts of
her tenants?

A
.

Yes, sir.

Q
.

Why do you say so?

A
.

Because we sometimes post a record of accounts in behalf

of Matilde Vda. De Ramonal.

Q
.

How is this record of accounts made? How is this

reflected?

A
.

In handwritten.

14

xxx
Q
.

In addition to collection of rentals, posting records of

accounts of tenants and deed of sale which you said what
else did you do to acquire familiarity of the signature of
Matilde Vda. De Ramonal?

A
.

Posting records.

Q
.

Aside from that?

A
.

Carrying letters.

Q
.

Letters of whom?

A
.

Matilde

Q
.

To whom?

A
.

To her creditors.

15

xxx
Q
.

You testified that at the time of her death she left a will. I
am showing to you a document with its title tugon is
this the document you are referring to?

A
.

Yes, sir.

Q
.

Showing to you this Exhibit S, there is that handwritten

tugon, whose handwriting is this?

A
.

My aunt.

Q
.

Why do you say this is the handwriting of your aunt?

A
.

Because I am familiar with her signature.

16

What Ms. Binanay saw were pre-prepared receipts and letters of the deceased,
which she either mailed or gave to her tenants. She did not declare that she saw the
deceased sign a document or write a note.

Further, during the cross-examination, the counsel for petitioners elicited the fact
that the will was not found in the personal belongings of the deceased but was in the
possession of Ms. Binanay. She testified that:

Q
.

Mrs. Binanay, when you were asked by counsel for the

petitioners if the late Matilde Seno Vda. de Ramonal left a
will you said, yes?

A
.

Yes, sir.

Q
.

Who was in possession of that will?

A
.

I.

Q
.

Since when did you have the possession of the will?

A
.

It was in my mothers possession.

Q
.

So, it was not in your possession?

A
.

Sorry, yes.

Q
.

And when did you come into possession since as you said
this was originally in the possession of your mother?

A
.

1985.

17

xxx
Q
.

Now, Mrs. Binanay was there any particular reason why

your mother left that will to you and therefore you have
that in your possession?

A
.

It was not given to me by my mother, I took that in the

aparador when she died.

Q
.

After taking that document you kept it with you?

A
.

I presented it to the fiscal.

Q
.

For what purpose?

A
.

Just to seek advice.

Q
.

Advice of what?

A
.

About the will.

18

In her testimony it was also evident that Ms. Binanay kept the fact about the will
from petitioners, the legally adopted children of the deceased. Such actions put in

issue her motive of keeping the will a secret to petitioners and revealing it only after
the death of Matilde Seo Vda. de Ramonal.
In the testimony of Ms. Binanay, the following were established:

Q
.

Now, in 1978 Matilde Seno Vda. de Ramonal was not yet

a sickly person is that correct?

A
.

Yes, sir.

Q
.

She was up and about and was still uprightly and she
could walk agilely and she could go to her building to
collect rentals, is that correct?

A
.

Yes, sir.

19

xxx
Q
.

Now, let us go to the third signature of Matilde Ramonal.

Do you know that there are retracings in the word Vda.?

A
.

Yes, a little. The letter L is continuous.

Q
.

And also in Matilde the letter L is continued to letter D?

A
.

Yes, sir.

Q
.

Again the third signature of Matilde Vda. de Ramonal the

letter L in Matilde is continued towards letter D.

A
.

Yes, sir.

Q
.

And there is a retracing in the word Vda.?

A
.

Yes, sir.

20

xxx
Q
.

Now, that was 1979, remember one year after the alleged
holographic will. Now, you identified a document marked
as Exhibit R. This is dated January 8, 1978 which is
onlyabout eight months from August 30, 1978. Do you
notice that the signature Matilde Vda. de Ramonal is
beautifully written and legible?

A
.

Yes, sir the handwriting shows that she was very

exhausted.

Q
.

You just say that she was very exhausted while that in
1978 she was healthy was not sickly and she was agile.
Now, you said she was exhausted?

A
.

In writing.

Q
.

How did you know that she was exhausted when you were
not present and you just tried to explain yourself out

because of the apparent inconsistencies?

A
.

That was I think. (sic)

Q
.

Now, you already observed this signature dated 1978, the

same year as the alleged holographic will. In exhibit I, you
will notice that there is no retracing; there is no hesitancy
and the signature was written on a fluid movement. x x x
And in fact, the name Eufemia R. Patigas here refers to
one of the petitioners?

A
.

Yes, sir.

Q
.

You will also notice Mrs. Binanay that it is not only with
the questioned signature appearing in the alleged
holographic will marked as Exhibit X but in the
handwriting themselves, here you will notice the hesitancy
and tremors, do you notice that?

A
.

Yes, sir.

21

Evangeline Calugay declared that the holographic will was written, dated and
signed in the handwriting of the testator. She testified that:

Q
.

You testified that you stayed with the house of the spouses
Matilde and Justo Ramonal for the period of 22 years.
Could you tell the court the services if any which you
rendered to Matilde Ramonal?

A
.

During my stay I used to go with her to the church, to the

market and then to her transactions.

Q
.

What else? What services that you rendered?

A
.

After my college days I assisted her in going to the bank,

paying taxes and to her lawyer.

Q
.

What was your purpose of going to her lawyer?

A
.

I used to be her personal driver.

Q
.

In the course of your stay for 22 years did you acquire

familiarity of the handwriting of Matilde Vda. de
Ramonal?

A
.

Yes, sir.

Q
.

How come that you acquired familiarity?

A
.

Because I lived with her since birth.

22

xxx
Q
.

Now, I am showing to you Exhibit S which is captioned

tugon dated Agosto 30, 1978 there is a signature here
below item No. 1, will you tell this court whose signature
is this?

Yes, sir, that is her signature.

.
Q
.

Why do you say that is her signature?

A
.

I am familiar with her signature.

23

So, the only reason that Evangeline can give as to why she was familiar with the
handwriting of the deceased was because she lived with her since birth. She never
declared that she saw the deceased write a note or sign a document.
The former lawyer of the deceased, Fiscal Waga, testified that:

Q
.

Do you know Matilde Vda. de Ramonal?

A
.

Yes, sir I know her because she is my godmother the

husband is my godfather. Actually I am related to the
husband by consanguinity.

Q
.

Can you tell the name of the husband?

A
.

The late husband is Justo Ramonal.

xxx

24

Q
.

Can you tell this court whether the spouses Justo Ramonal
and Matilde Ramonal have legitimate children?

A
.

As far as I know they have no legitimate children.

25

xxx
Q
.

You said after becoming a lawyer you practice your

profession? Where?

A
.

Here in Cagayan de Oro City.

Q
.

Do you have services rendered with the deceased Matilde

Vda. de Ramonal?

A
.

I assisted her in terminating the partition, of properties.

Q
.

When you said assisted, you acted as her counsel? Any

sort of counsel as in what case is that, Fiscal?

A
.

It is about the project partition to terminate the property,

which was under the court before.
26

xxx
Q
.

Appearing in special proceeding No. 427 is the amended

inventory which is marked as Exhibit N of the estate of
Justo Ramonal and there appears a signature over the type
written word Matilde vda de Ramonal, whose signature is

this?
A
.

That is the signature of Matilde Vda. de Ramonal.

Q
.

Also in Exhibit n-3, whose signature is this?

A
.

This one here that is the signature of Mrs. Matilde Vda. de

Ramonal.
27

xxx
Q
.

Aside from attending as counsel in that Special

Proceeding Case No. 427 what were the other assistance
wherein you were rendering professional service to the
deceased Matilde Vda. de Ramonal?

A
.

I can not remember if I have assisted her in other matters

but if there are documents to show that I have assisted
then I can recall.
28

xxx
Q
.

Now, I am showing to you exhibit S which is titled

tugon, kindly go over this document, Fiscal Waga and
tell the court whether you are familiar with the handw
riting contained in that document marked as exhibit S?

A
.

I am not familiar with the handwriting.

This one, Matilde Vda. de Ramonal, whose signature is

this?

A
.

I think this signature here it seems to be the signature of

Mrs. Matilde Vda. de Ramonal.

Q
.

Now, in item No. 2 there is that signature here of Matilde

Vda. de Ramonal, can you tell the court whose signature is
this?

A
.

Well, that is similar to that signature appearing in the

project of partition.

Q
.

Also in item no. 3 there is that signature Matilde Vda. de

Ramonal, can you tell the court whose signature is that?

A
.

As I said, this signature also seems to be the signature of

Matilde Vda. de Ramonal.

Q
.

Why do you say that?

A
.

Because there is a similarity in the way it is being written.

Q
.

How about this signature in item no. 4, can you tell the
court whose signature is this?

A
.

The same is true with the signature in item no. 4. It seems

that they are similar.
29

xxx

Q
.

Mr. Prosecutor, I heard you when you said that the

signature of Matilde Vda. de Ramonal Appearing in
exhibit S seems to be the signature of Matilde Vda. de
Ramonal?

A
.

Yes, it is similar to the project of partition.

So you are not definite that this is the signature of Matilde

Vda. de Ramonal. You are merely supposing that it seems
to be her signature because it is similar to the signature of
the project of partition which you have made?

A
.

That is true.

30

From the testimonies of these witnesses, the Court of Appeals allowed the will to
probate and disregard the requirement of three witnesses in case of contested
holographic will, citing the decision in Azaola vs. Singson, ruling that the
requirement is merely directory and not mandatory.
31

In the case of Ajero vs. Court of Appeals, we said that the object of the
solemnities surrounding the execution of wills is to close the door against bad faith
and fraud, to avoid substitution of wills and testaments and to guaranty their truth
and authenticity. Therefore, the laws on this subject should be interpreted in such a
way as to attain these primordial ends. But, on the other hand, also one must not
lose sight of the fact that it is not the object of the law to restrain and curtail the
exercise of the right to make a will.
32

However, we cannot eliminate the possibility of a false document being adjudged

as the will of the testator, which is why if the holographic will is contested, that law
requires three witnesses to declare that the will was in the handwriting of the
deceased.
The will was found not in the personal belongings of the deceased but with one of
the respondents, who kept it even before the death of the deceased. In the testimony

of Ms. Binanay, she revealed that the will was in her possession as early as 1985, or
five years before the death of the deceased.
There was no opportunity for an expert to compare the signature and the
handwriting of the deceased with other documents signed and executed by her
during her lifetime. The only chance at comparison was during the crossexamination of Ms. Binanay when the lawyer of petitioners asked Ms. Binanay to
compare the documents which contained the signature of the deceased with that of
the holographic will and she is not a handwriting expert. Even the former lawyer of
the deceased expressed doubts as to the authenticity of the signature in the
holographic will.
A visual examination of the holographic will convince us that the strokes are
different when compared with other documents written by the testator. The
signature of the testator in some of the disposition is not readable. There were
uneven strokes, retracing and erasures on the will.
Comparing the signature in the holographic will dated August 30, 1978, and the
33

signatures in several documents such as the application letter for pasture permit
dated December 30, 1980, and a letter dated June 16, 1978, the strokes are
34

35

different. In the letters, there are continuous flows of the strokes, evidencing that
there is no hesitation in writing unlike that of the holographic will. We, therefore,
cannot be certain that the holographic will was in the handwriting by the deceased.
IN VIEW WHEREOF, the decision appealed from is SET ASIDE. The records are
ordered remanded to the court of origin with instructions to allow petitioners to
adduce evidence in support of their opposition to the probate of the holographic will
of the deceased Matilde Seo Vda. de Ramonal.
No costs.
SO ORDERED.
Davide, Jr. (C.J.), Puno, Kapunan and Ynares-Santiago, JJ.,concur.
Appealed decision set aside.

Notes.The requirements of Article 813 of the New Civil Code affects the validity of the
dispositions contained in the holographic will, but not its probate. (Ajero vs. Court of
Appeals, 236 SCRA 488 [1994])
A will is essentially ambulatoryat any time prior to the testators death, it may be
changed or revoked, and until admitted to probate, it has no effect whatever and no right can be claimed thereunder; An
owners intention to confer title in the future to persons possessing property by his
tolerance is not inconsistent with the formers taking back possession in the meantime for
any reason deemed sufficient. (Caiza vs. Court of Appeals, 268 SCRA 640[1997])

o0o

G.R. No. 106720. September 15, 1994.

SPOUSES ROBERTO AND THELMA AJERO, petitioners,vs. THE COURT OF

APPEALS AND CLEMENTE SAND, respondents.
Succession; Wills; Holographic Wills; Probate Proceedings;The grounds enumerated in
the Civil Code and Rules of Court for the disallowance of wills are exclusive; Issues in a
petition to admit a holographic will to probate.Section 9, Rule 76 of the Rules of Court
provides the cases in which wills shall be disallowed. In the same vein, Article 839 of the
New Civil Code enumerates the grounds for disallowance of wills. These lists are exclusive;
no other grounds can serve to disallow a will. Thus, in a petition to admit a holographic will
to probate, the only issues to be resolved are: (1) whether the instrument submitted is,
indeed, the decedents last will and testament; (2) whether said will was executed in
accordance with the formalities prescribed by law; (3) whether the decedent had the
necessary testamentary capacity at the time the will was executed; and, (4) whether the
execution of the will and its signing were the voluntary acts of the decedent.
Same; Same; Same; Same; Statutory Construction; The object of the solemnities
surrounding the execution of wills is to close the door against bad faith and fraud,
accordingly, laws on this subject should be interpreted to attain these primordial ends.We
reiterate what we held in Abangan vs. Abangan, 40 Phil. 476, 479 (1919), that: The object
of the solemnities surrounding the execution of wills is to close the door against bad faith
and fraud, to avoid substitution of wills and testaments and to guaranty their truth and
authenticity. Therefore, the laws on this subject should be interpreted in such a way as to
attain these primordial ends. But, on the other hand, also one must not lose sight of the fact
that it is not the object of the law to restrain and curtail the exercise of the right to make a
will. So when an interpretation already given assures such ends, any other interpretation
whatsoever, that adds nothing but demands more requisites entirely unnecessary, useless
and frustrative of the testators last will, must be disregarded. For purposes of probating
non-holographic wills, these formal solemnities include the subscription, attestation, and
acknowledgment requirements under Articles 805 and 806 of the New Civil Code.
Same; Same; Same; Same; Failure to strictly observe other formalities will not result in
the disallowance of a holographic will that is unquestionably handwritten by the testator.

In the case of holographic wills, on the other hand, what assures authenticity is the
requirement that they be totally autographic or handwritten by the testator himself, as
provided under Article 810 of the New Civil Code. Failure to strictly observe other
formalities will not result in the disallowance of a holographic will that is unquestionably
handwritten by the testator.
Same; Same; Same; Same; The requirement of Article 813 of the New Civil Code affects
the validity of the dispositions contained in the holographic will, but not its probate.A
reading of Article 813 of the New Civil Code shows that its requirement affects the validity
of the dispositions contained in the holographic will, but not its probate. If the testator fails
to sign and date some of the dispositions, the result is that these dispositions cannot be
effectuated. Such failure, however, does not render the whole testament void.
Same; Same; Same; Same; Unauthenticated alterations, cancellations or insertions do
not invalidate a holographic will, unless they were made on the date or on testators
signature.Likewise, a holographic will can still be admitted to probate, notwithstanding
noncompliance with the provisions of Article 814. Thus, unless the unauthenticated
alterations, cancellations or insertions were made on the date of the holographic will or on
testators signature, their presence does not invalidate the will itself. The lack of
authentication will only result in disallowance of such changes.
Same; Same; Same; Same; Only the requirements of Article 810 of the New Civil Code
and not those found in Articles 813 and 814are essential to the probate of a holographic
will.It is also proper to note that the requirements of authentication of changes and
signing and dating of dispositions appear in provisions (Articles 813 and 814) separate from
that which provides for the necessary conditions for the validity of the holographic will
(Article 810). The distinction can be traced to Articles 678 and 688 of the Spanish Civil
Code, from which the present provisions covering holographic wills are taken. This
separation and distinction adds support to the interpretation that only the requirements of
Article 810 of the New Civil Codeand not those found in Article 813 and 814 of the same
Codeare essential to the probate of a holographic will.
Same; Same; Same; Same; Probate Courts; While courts in probate proceedings are
generally limited to pass only upon the extrinsic validity of the will sought to be probated, in
exceptional cases, courts are not powerless to do what the situation constrains them to do,
and pass upon certain provisions of the will.As a general rule, courts in probate
proceedings are limited to pass only upon the extrinsic validity of the will sought to be
probated. However, in exceptional instances, courts are not powerless to do what the
situation constrains them to do, and pass upon certain provisions of the will. In the case at
bench, decedent herself indubitably stated in her holographic will that the Cabadbaran

property is in the name of her late father, John H. Sand (which led oppositor Dr. Jose Ajero
to question her conveyance of the same in its entirety). Thus, as correctly held by
respondent court, she cannot validly dispose of the whole property, which she shares with
her fathers other heirs.

PETITION for review on certiorari of a decision of the Court of Appeals.

The facts are stated in the opinion of the Court.
Miguel D. Larida for petitioners.
Montilla Law Office for private respondent.
PUNO, J.:
This is an appeal by certiorari from the Decision of the Court of Appeals in CA-G.R.
CV No. 22840, dated March 30, 1992, the dispositive portion of which reads:
1

PREMISES CONSIDERED, the questioned decision of November 19, 1988 of the trial
court is hereby REVERSED and SET ASIDE, and the petition for probate is hereby
DISMISSED. No costs.

The earlier Decision was rendered by the RTC of Quezon City, Branch 94, in Sp.
Proc. No. Q-37171, and the instrument submitted for probate is the holographic will
of the late Annie Sand, who died on November 25, 1982.
2

In the will, decedent named as devisees, the following: petitioners Roberto and
Thelma Ajero, private respondent Clemente Sand, Meriam S. Arong, Leah Sand,
Lilia Sand, Edgar Sand, Fe Sand, Lisa S. Sand, and Dr. Jose Ajero, Sr., and their
children.
On January 20, 1983, petitioners instituted Sp. Proc. No. Q-37171, for allowance
of decedents holographic will. They alleged that at the time of its execution, she was
of sound and disposing mind, not acting under duress, fraud or undue influence, and
was in every respect capacitated to dispose of her estate by will.
Private respondent opposed the petition on the grounds that: neither the
testaments body nor the signature therein was in decedents handwriting; it
contained alterations and corrections which were not duly signed by decedent; and,

the will was procured by petitioners through improper pressure and undue
influence. The petition was likewise opposed by Dr. Jose Ajero. He contested the
disposition in the will of a house and lot located in Cabadbaran, Agusan Del Norte.
He claimed that said property could not be conveyed by decedent in its entirety, as
she was not its sole owner.
Notwithstanding the oppositions, the trial court admitted the decedents
holographic will to probate. It found, inter alia:
Considering then that the probate proceedings herein must decide only the question of
identity of the will, its due execution and the testamentary capacity of the testatrix, this
probate court finds no reason at all for the disallowance of the will for its failure to comply
with the formalities prescribed by law nor for lack of testamentary capacity of the testatrix.
For one, no evidence was presented to show that the will in question is different from
the will actually executed by the testatrix. The only objections raised by the oppositors x x x
are that the will was not written in the handwriting of the testatrix which properly refers to
the question of its due execution, and not to the question of identity of will. No other will
was alleged to have been executed by the testatrix other than the will herein presented.
Hence, in the light of the evidence adduced, the identity of the will presented for probate
must be accepted, i.e., the will submitted in Court must be deemed to be the will actually
executed by the testatrix.
x x x

xxx

xxx

While the fact that it was entirely written, dated and signed in the handwriting of the
testatrix has been disputed, the petitioners, however, have satisfactorily shown in Court
that the holographic will in question was indeed written entirely, dated and signed in the
handwriting of the testatrix. Three (3) witnesses who have convincingly shown knowledge of
the handwriting of the testatrix have been presented and have explicitly and categorically
identified the handwriting with which the holographic will in question was written to be the
genuine handwriting and signature of the testatrix. Given then the aforesaid evidence, the
requirement of the law that the holographic will be entirely written, dated and signed in
the handwriting of the testatrix has been complied with.
x x x

xxx

xxx

As to the question of the testamentary capacity of the testatrix, (private respondent)

Clemente Sand himself has testified in Court that the testatrix was completely in her sound
mind when he visited her during her birthday celebration in 1981, at or around which time

the holographic will in question was executed by the testatrix. To be of sound mind, it is
sufficient that the testatrix, at the time of making the will, knew the value of the estate to
be disposed of, the proper object of her bounty, and thecharacter of the testamentary act x x
x. The will itself shows that the testatrix even had detailed knowledge of the nature of her
estate. She even identified the lot number and square meters of the lots she had conveyed by
will. The objects of her bounty were likewise identified explicitly. And considering that she
had even written a nursing book which contained the law and jurisprudence on will and
succession, there is more than sufficient showing that she knows the character of the
testamentary act.
In this wise, the question of identity of the will, its due execution and the testamentary
capacity of the testatrix has to be resolved in favor of the allowance of probate of the will
submitted herein.
Likewise, no evidence was presented to show sufficient reason for the disallowance of
herein holographic will. While it was alleged that the said will was procured by undue and
improper pressure and influence on the part of the beneficiary or of some other person, the
evidence adduced have not shown any instance where improper pressure or influence was
exerted on the testatrix. (Private respondent) Clemente Sand has testified that the testatrix
was still alert at the time of the execution of the will, i.e., at or around the time of her birth
anniversary celebration in 1981. It was also established that she is a very intelligent person
and has a mind of her own. Her independence of character and to some extent, her sense of
superiority, which has been testified to in Court, all show the unlikelihood of her being
unduly influenced or improperly pressured to make the aforesaid will. It must be noted that
the undue influence or improper pressure in question herein only refer to the making of a
will and not as to the specific testamentary provisions therein which is the proper subject of
another proceeding. Hence, under the circumstances, this Court cannot find convincing
reason for the disallowance of the will herein.
Considering then that it is a well-established doctrine in the law on succession that in
case of doubt, testate succession should be preferred over intestate succession, and the fact
that no convincing grounds were presented and proven for the disallowance of the
holographic will of the late Annie Sand, the aforesaid will submitted herein must be
admitted to probate. (Citations omitted.)
3

On appeal, said Decision was reversed, and the petition for probate of decedents
will was dismissed. The Court of Appeals found that, the holographic will fails to
meet the requirements for its validity. It held that the decedent did not comply
with Articles 813 and 814 of the New Civil Code, which read, as follows:
4

Article 813: When a number of dispositions appearing in a holographic will are signed
without being dated, and the last disposition has a signature and date, such date validates
the dispositions preceding it, whatever be the time of prior dispositions.
Article 814: In case of insertion, cancellation, erasure or alteration in a holographic will,
the testator must authenticate the same by his full signature.

It alluded to certain dispositions in the will which were either unsigned and
undated, or signed but not dated. It also found that the erasures, alterations and
cancellations made thereon had not been authenticated by decedent.
Thus, this appeal is impressed with merit.
Section 9, Rule 76 of the Rules of Court provides that wills shall be disallowed in
any of the following cases:
1. (a)If not executed and attested as required by law;
2. (b)If the testator was insane, or otherwise mentally incapable to make a will, at the
time of its execution;
3. (c)If it was executed under duress, or the influence of fear, or threats;
4. (d)If it was procured by undue and improper pressure and influence, on the part of
the beneficiary, or of some other person for his benefit;
5. (e)If the signature of the testator was procured by fraud or trick, and he did not
intend that the instrument should be his will at the time of fixing his signature
thereto.

In the same vein, Article 839 of the New Civil Code reads:
Article 839: The will shall be disallowed in any of the following cases:
1. (1)If the formalities required by law have not been complied with;
2. (2)If the testator was insane, or otherwise mentally incapable of making a will, at
the time of its execution;
3. (3)If it was executed through force or under duress, or the influence of fear, or
threats;

4. (4)If it was procured by undue and improper pressure and influence, on the part of
the beneficiary or of some other person;
5. (5)If the signature of the testator was procured by fraud;
6. (6)If the testator acted by mistake or did not intend that the instrument he signed
should be his will at the time of affixing his signature thereto.

These lists are exclusive; no other grounds can serve to disallow a will. Thus, in a
petition to admit a holographic will to probate, the only issues to be resolved are: (1)
whether the instrument submitted is, indeed, the decedents last will and
testament; (2) whether said will was executed in accordance with the formalities
prescribed by law; (3) whether the decedent had the necessary testamentary
capacity at the time the will was executed; and, (4) whether the execution of the will
and its signing were the voluntary acts of the decedent.
5

In the case at bench, respondent court held that the holographic will of Anne
Sand was not executed in accordance with the formalities prescribed by law. It held
that Articles 813 and 814 of the New Civil Code, ante, were not complied with,
hence, it disallowed the probate of said will. This is erroneous.
We reiterate what we held in Abangan vs. Abangan, 40 Phil. 476, 479
(1919), that:
The object of the solemnities surrounding the execution of wills is to close the door against
bad faith and fraud, to avoid substitution of wills and testaments and to guaranty their
truth and authenticity. Therefore, the laws on this subject should be interpreted in such a
way as to attain these primordial ends. But, on the other hand, also one must not lose sight
of the fact that it is not the object of the law to restrain and curtail the exercise of the right
to make a will. So when an interpretation already given assures such ends, any other
interpretation whatsoever, that adds nothing but demands more requisites entirely
unnecessary, useless and frustrative of the testators last will, must be disregarded.

For purposes of probating non-holographic wills, these formal solemnities include

the subscription, attestation, and acknowledgment requirements under Articles 805
and 806 of the New Civil Code.

In the case of holographic wills, on the other hand, what assures authenticity is
the requirement that they be totally autographic or handwritten by the testator
himself,7 as provided under Article 810 of the New Civil Code, thus:
A person may execute a holographic will which must be entirely written, dated, and signed
by the hand of the testator himself. It is subject to no other form, and may be made in or out
of the Philippines, and need not be witnessed. (Italics supplied.)

Failure to strictly observe other formalities will not result in the disallowance of a
holographic will that is unquestionably handwritten by the testator.
A reading of Article 813 of the New Civil Code shows that its requirement affects
the validity of the dispositionscontained in the holographic will, but not its probate.
If the testator fails to sign and date some of the dispositions, the result is that these
dispositions cannot be effectuated. Such failure, however, does not render the whole
testament void.
Likewise, a holographic will can still be admitted to probate, notwithstanding
non-compliance with the provisions of Article 814. In the case of Kalaw vs.
Relova,132 SCRA 237, 242 (1984), this Court held:
Ordinarily, when a number of erasures, corrections, and interlineations made by the
testator in a holographic Will have not been noted under his signature, x x x the Will is not
thereby invalidated as a whole, but at most only as respects the particular words erased,
corrected or interlined. Manresa gave an identical commentary when he said la omision de
la salvedad no anula el testamento, segun la regla de jurisprudencia establecida en la
sentencia de 4 de Abril de 1895. (Citations omitted.)
8

Thus, unless the unauthenticated alterations, cancellations or insertions were made

on the date of the holographic will or ontestators signature, their presence does not
invalidate the will itself. The lack of authentication will only result in disallowance
of such changes.
9

10

It is also proper to note that the requirements of authentication of changes and

signing and dating of dispositions appear in provisions (Articles 813 and 814)
separate from that which provides for the necessary conditions for the validity of the
holographic will (Article 810). The distinction can be traced to Articles 678 and 688

of the Spanish Civil Code, from which the present provisions covering holographic
wills are taken. They read as follows:
Article 678: A will is called holographic when the testator writes it himself in the form and
with the requisites required in Article 688.
Article 688: Holographic wills may be executed only by persons of full age.
In order that the will be valid it must be drawn on stamped paper corresponding to the
year of its execution, written in its entirety by the testator and signed by him, and must
contain a statement of the year, month and day of its execution.
If it should contain any erased, corrected, or interlined words, the testator must identify
them over his signature. Foreigners may execute holographic wills in their own language.

This separation and distinction adds support to the interpretation that only the
requirements of Article 810 of the New Civil Codeand not those found in Articles
813 and 814 of the same Codeare essential to the probate of a holographic will.
The Court of Appeals further held that decedent Annie Sand could not validly
dispose of the house and lot located in Cabadbaran, Agusan del Norte, in its
entirety. This is correct and must be affirmed.
As a general rule, courts in probate proceedings are limited to pass only upon the
extrinsic validity of the will sought to be probated. However, in exceptional
instances, courts are not powerless to do what the situation constrains them to do,
and pass upon certain provisions of the will. In the case at bench, decedent herself
indubitably stated in her holographic will that the Cabadbaran property is in the
name of her late father, John H. Sand (which led oppositor Dr. Jose Ajero to
question her conveyance of the same in its entirety). Thus, as correctly held by
respondent court, she cannot validly dispose of the whole property, which she shares
with her fathers other heirs.
11

IN VIEW WHEREOF, the instant petition is GRANTED. The Decision of the

Court of Appeals in CA-G.R. CV No. 22840, dated March 30, 1992, is REVERSED
and SET ASIDE, except with respect to the invalidity of the disposition of the entire
house and lot in Cabadbaran, Agusan del Norte. The Decision of the Regional Trial
Court of Quezon City, Branch 94 in Sp. Proc. No. Q-37171, dated November 19,

1988, admitting to probate the holographic will of decedent Annie Sand, is hereby
REINSTATED, with the above qualification as regards the Cabadbaran property.
No costs.
SO ORDERED.
Narvasa (C.J., Chairman) Padilla, Regalado andMendoza, JJ., concur.
Petition granted. Judgment reversed and set aside.
Note.Attestation clause is valid even if in a language not known to testator.
(Caneda vs. Court of Appeals, 222 SCRA 781 [1993])
o0o

No. L-40207. September 28, 1984.

ROSA K. KALAW, petitioner, vs. HON. JUDGE BENJAMIN RELOVA, Presiding

Judge of the CFI of Batangas, Branch VI, Lipa City, and GREGORIO K. KALAW,
respondents.
Settlement of Estate; Ordinarily erasures or alterations in a holographic will does not
invalidate the will itselfOrdinarily, when a number of erasures, corrections, and
interlineations made by the testator in a holographic Will have not been noted under his
signature, x x x the Will is not thereby invalidated as a whole, but at most only as respects
the particular words erased, corrected or interlined. Manresa gave an identical commentary
when he said la omision de la salvedad no anula el testamento, segun la regla de
jurisprudencia establecida en la sentencia de 4 de Abril de 1895.
Same; Where a holographic will has designate only one heir to the entire estate and the
designation was cancelled and another sole heir designated, without the cancellation being
authenticated by full signature of testator, entire will is void.However, when as in this
case, the holographic Will in dispute had only one substantial provision, which was altered
by substituting the original heir with another, but which alteration did not carry the
requisite of full authentication by the full signature of the testator, the effect must be that
the entire Will is voided or revoked for the simple reason that nothing remains in the Will
after that which could remain valid. To state that the Will as first written should be given

efficacy is to disregard the seeming change of mind of the testatrix. But that change of mind
can neither be given effect because she failed to authenticate it in the manner required by
law by affixing her full signature.
Same; Same.The ruling in Velasco, supra, must be held confined to such insertions,
cancellations, erasures or alterations in a holographic Will, which affect only the efficacy of
the altered words themselves but not the essence and validity of the Will itself. As it is, with
the erasures, cancellations and alterations made by the testatrix herein, her real intention
cannot be determined with certitude.

TEEHANKEE, J., concurring:

Settlement of Estate; Certiorari; Petitioner Rosa is bound by the factual finding of the
trial court that testator herself crossed-out Rosas name as sole heir. Hence, the substitution
of Gregorio as sole heir even if void for not being authenticated as prescribed by law will not
result in Rosa being declared heir.I concur. Rosa, having appealed to this Court on a sole
question of law, is bound by the trial courts factual finding that the peculiar alterations in
the holographic will crossing out Rosas name and instead inserting her brother Gregorios
name as sole heir and sole executrix were made by the testatrix in her own handwriting.
(I find it peculiar that the testatrix who was obviously an educated person would
unthinkingly make such crude alterations instead of consulting her lawyer and writing an
entirely new holographic will in order to avoid any doubts as to her change of heir. It should
be noted that the first alteration crossing out sister Rosa K. Kalaw and inserting brother
Gregorio Kalaw as sole heir is not even initialed by the testatrix. Only the second
alteration crossing out sister Rosa K. Kalaw and inserting brother Gregorio Kalaw as
sole executrix is initialed.) Probate of the radically altered will replacing Gregorio for Rosa
as sole heir is properly denied, since the same was not duly authenticated by the full
signature of the executrix as mandatorily required by Article 814 of the Civil Code. The
original unaltered will naming Rosa as sole heir cannot, however, be given effect in view of
the trial courts factual finding that the testatrix had by her own handwriting substituted
Gregorio for Rosa, so that there is no longer any will naming Rosa as sole heir. The net
result is that the testatrix left no valid will and both Rosa and Gregorio as her next of kin
succeed to her intestate estate.

PETITION for certiorari to review the decision of the Court of First Instance of
Batangas, Br. VI. Relova, J.
The facts are stated in the opinion of the Court.
Leandro H. Fernandez for petitioner.

Antonio Quintos and Jose M. Yacat for respondents.

MELENCIO-HERRERA, J.:
On September 1, 1971, private respondent GREGORIO K. KALAW, claiming to be
the sole heir of his deceased sister, Natividad K. Kalaw, filed a petition before the
Court of First Instance of Batangas, Branch VI, Lipa City, for the probate of her
holographic Will executed on December 24, 1968.
The holographic Will reads in full as follows:
The holographic Will, as first written, named ROSA K. Kalaw, a sister of the
testatrix as her sole heir. Hence, on November 10, 1971, petitioner ROSA K. Kalaw
opposed probate alleging, in substance, that the holographic Will contained
alterations, corrections, and insertions without the proper authentication by the full
signature of the testatrix as required by Article 814 of the Civil Code reading:
Art. 814. In case of any insertion, cancellation, erasure or alteration in a holographic will,
the testator must authenticate the same by his full signature.

ROSAs position was that the holographic Will, as first written, should be given
effect and probated so that she could be the sole heir thereunder.
After trial, respondent Judge denied probate in an Order, dated September 3, 1973,
reading in part:
The document Exhibit C was submitted to the National Bureau of Investigation for
examination. The NBI reported that the handwriting, the signature, the insertions and/or
additions and the initial were made by one and the same person. Consequently, Exhibit C
was the handwriting of the decedent, Natividad K. Kalaw. The only question is whether the
will, Exhibit C, should be admitted to probate although the alterations and/or insertions or
additions above-mentioned were not authenticated by the full signature of the testatrix
pursuant to Art. 814 of the Civil Code. The petitioner contends that the oppositors are
estopped to assert the provision of Art. 814 on the ground that they themselves agreed thru
their counsel to submit the Document to the NBI FOR EXAMINATIONS. This is untenable.
The parties did not agree, nor was it impliedly understood, that the oppositors would be in
estoppel.

The Court finds, therefore, that the provision of Article 814 of the Civil Code is
applicable to Exhibit C. Finding the insertions, alterations and/or additions in Exhibit C
not to be authenticated by the full signature of the testatrix Natividad K. Kalaw, the Court
will deny the admission to probate of Exhibit C.
WHEREFORE, the petition to probate Exhibit C as the holographic will of Natividad
K. Kalaw is hereby denied.
SO ORDERED.

From that Order, GREGORIO moved for reconsideration arguing that since the
alterations and/or insertions were made by the testatrix, the denial to probate of her
holographic Will would be contrary to her right of testamentary disposition.
Reconsideration was denied in an Order, dated November 2, 1973, on the ground
that Article 814 of the Civil Code being clear and explicit, (it) requires no necessity
for interpretation.
From that Order, dated September 3, 1973, denying probate, and the Order dated
November 2, 1973 denying reconsideration, ROSA filed this Petition for Review on
Certiorari on the sole legal question of whether or not theoriginal unaltered text
after subsequent alterations and insertions were voided by the Trial Court for lack
of authentication by the full signature of the testatrix, should be probated or not,
with her as sole heir.
Ordinarily, when a number of erasures, corrections, and interlineations made by the
testator in a holographic Will have not been noted under his signature, x x x the
Will is not thereby invalidated as a whole, but at most only as respects the
particular words erased, corrected or interlined. Manresa gave an identical
commentary when he said la omision de la salvedad no anula el testamento, segun
la regla de jurisprudencia establecida en la sentencia de 4 de Abril de 1895.
1

However, when as in this case, the holographic Will in dispute had only one
substantial provision, which was altered by substituting the original heir with
another, but which alteration did not carry the requisite of full authentication by
the full signature of the testator, the effect must be that the entire Will is voided or
revoked for the simple reason that nothing remains in the Will after that which
could remain valid. To state that the Will as first written should be given efficacy is
to disregard the seeming change of mind of the testatrix. But that change of mind

can neither be given effect because she failed to authenticate it in the manner
required by law by affixing her full signature.
The ruling in Velasco, supra, must be held confined to such insertions,
cancellations, erasures or alterations in a holographic Will, which affect only the
efficacy of the altered words themselves but not the essence and validity of the Will
itself. As it is, with the erasures, cancellations and alterations made by the testatrix
herein, her real intention cannot be determined with certitude. As Manresa had
stated in his commentary on Article 688 of the Spanish Civil Code, whence Article
814 of the new Civil Code was derived:
x x x No infringe lo dispuesto en este articulo del Codigo (el 688) la sentencia que no
declara la nulidad de un testamento olografo que contenga palabras tachadas, enmendadas
o entre renglones, no salvadas por el testador bajo su firma, segun previene el parrafo
tercero del mismo, porque, en realidad, tal omision solo puede afectar a la validez o eficacia
de tales palabras, y nunca al testamento mismo, ya por estar esa disposition en parrafo
aparte de aquel que determina las condiciones necesarias para la validez del testamento
olografo, ya porque, de admitir lo contrario, se llegaria al absurdo de que pequeas
enmiendas no salvadas, que en nada afectasen a la parte esencial y respectiva del
testamento, vinieran a anular este, y ya porque el precepto contenido en dicho parrafo ha de
entenderse en perfecta armonia y congruencia con el art. 26 de la ley del Notariado, que
declara nulas las adiciones, apostillas, entrerrenglonados, raspaduras y tachados en las
escrituras matrices, siempre que no se salven en la forma prevenida, pero no el documento
que las contenga, y con mayor motivo cuando las palabras enmendadas, tachadas, o
entrerrenglonadas no tengan importancia ni susciten duda alguna acerca del pensamiento
del testador, o constituyan meros accidentes de ortografia o de purez escrituraria, sin
trascendencia alguna(l).
Mas para que sea aplicable la doctrina de excepcion contenida en este ultimo fallo, es
preciso que las tachaduras, enmiendas o entrerrenglonados sin salvar, sean de palabras que
no afecten, alteren ni varien de modo substancial la expresa voluntad del testador manifiesta
en el documento. Asi lo advierte la sentencia de 29 de Noviembre de 1916, que declara nulo
un testamento olografo por no estar salvada por el testador la enmienda del guarismo
ultimo del ao en que fue extendido (Italics ours).
3

WHEREFORE, this Petition is hereby dismissed and the Decision of respondent

Judge, dated September 3, 1973, is hereby affirmed in toto. No costs.
SO ORDERED.

Plana, Gutierrez, Jr. and De la Fuente, JJ., concur.

Teehankee, (Chairman), J., concurs in a separate opinion.
Relova, J., took no part.
o0o

No. L-20234. December 23, 1964.

PAULA DE LA CERNA, ET AL., petitioners, vs.MANUELA REBACA POTOT, ET
AL., and THE HONORABLE COURT OF APPEALS, respondents.
Judgments; Probate courts; Error of law does not affect jurisdiction, of probate court
nor conclusive effect of its decision.An error of law committed in admitting a joint will to
probate does not affect the jurisdiction of the probate court nor the conclusive effect of its
final decision.
Same; Same; Probate decree of joint will affects only share of deceased spouse.A final
probate decree of a joint will of husband and wife affects only the share of the deceased
spouse and cannot include the disposition of said joint will, in so far as the estate of the
latter spouse is concerned, must be, on her death, reexamined and adjudicated de novo.
Wills; Effects of validity of joint will as to share of wife who dies later than the
husband.Where a husband and wife executed a joint will and upon the death of the

husband said will was admitted to probate by a final decree of the court although
erroneous, and the wife dies later, it is held that said first decree of probate affects only the
estate of the husband but cannot affect the estate of the wife, considering that a joint will is
a separate will of each testator; and a joint will being prohibited by law, the estate of the
wife should pass upon her death to her intestate heirs and not to the testamentary heir,
unless some other valid will is shown to exist in favor of the latter or unless the
testamentary heir is the only heir of said wife.

APPEAL from a decision of the Court of Appeals.

The facts are stated in the opinion of the Court.
Philip M. Alo and Crispin M. Menchavez for petitioners.
Nicolas Jumapao for respondents.
REYES, J.B.L., J.:
Appeal by Paula de la Cerna and others from a decision of the Court of Appeals,
Sixth Division (C.A.-G.R. No. 23763-R) reversing that of the Court of First
Instanceof Cebu (Civ. Case No. R-3819) and ordering the dismissal of an action for
partition.
The factual background appears in the following portion of the decision of the
Court of Appeals (Petition, Annex A, pp. 24):
It appears that on May 9, 1939, the spouses, Bernabe de la Serna and Gervasia Rebaca,
executed a joint last will and testament in the local dialect whereby they willed that our
two parcels of land acquired during our marriage together with all improvements thereon
shall be given to Manuela Rebaca, our niece, whom we have nurtured since childhood,
because God did not give us any child in our union, Manuela Rebaca being married to
Nicolas Potot, and that while each of the testators is yet living, he or she will continue to
enjoy.the fruits of the two lands aforementioned, the said two parcels of land being covered
by Tax No. 4676 and Tax No. 6677, both situated in sitio Bucao, barrio Lugo, municipality of
Borbon, province of Cebu. Bernabe de la Serna died on August 30, 1939, and the aforesaid
will was submitted to probate by said Gervasia and Manuela before the Court of First
Instance of Cebu which, after due publication as required by law and there being no
opposition, heard the evidence, and, by Order of October 31; 1939; in Special Proceedings
No. 499, declara legalizado el documento Exhibit A como el testamento y ultima voluntad
del finado Bernabe de la Serna con derecho por parte du su viuda superstite Gervasia

Rebaca y otra testadora al propio tiempo segun el Exhibit A de gozar de los frutos de los
terranos descritos en dicho documento; y habido consideracion de la de dichos bienes, se
decreta la distribucion sumaria de los mismos en favor de la logataria universal Manuela
Rebaca de Potot previa prestacion por parte de la misma de una fianza en la sum de
P500.00 para responder de reclamaciones que se presentare contra los bienes del finado
Bernabe de la Serna de los aos desde esta fecha. (Act Esp. 499, Testamentaria Finado
Bernabe de la Serna) Upon the death of Gervasia Rebaca on October 14, 1952, another
petition for the probate of the same will insofar as Gervasia was concerned was filed on
November 6, 1952, being Special Proceedings No. 1016-R of the same Court of First
Instance of Cebu, but for failure of the petitioner, Manuela R. Potot, and her attorney,
Manuel Potot to appear, for the hearing of said petition, the case was dismissed on March
30, 1954 (Spec. Proc. No. 1016-R, In the matter of the Probate of the Will of Gervasia
Rebaca)."

The Court of First Instance ordered the petition heard and declared the testament
null and void, for being executed contrary to the prohibition of joint wills in the Civil
Code (Art. 669, Civil Code of 1889 and Art. 818, Civil Code of the Philippines); but
on appeal by the testamentary heir, the Court of Appeals reversed, on the ground
that the decree of probate in 1939 was issued by a court of probate jurisdiction and
conclusive on the due execution of the testament. Further, the Court of Appeals
declared that:
x x x. It is true the law (Art. 669, old Civil Code; Art. 818, new Civil Code) prohibits the
making of a will jointly by two or more persons either for their reciprocal benefit or for the
benefit of a third person. However, this form of will has long been sanctioned by use, and
the same has continued to be used; and when, as in the present case, one such joint last will
and testament has been admitted to probate by final order of a Court of competent
jurisdiction, there seems to be no alternative except to give effect to the provisions thereof
that are not contrary to law, as was done in the case of Macrohon vs. Saavedra, 51 Phil. 267,
wherein our Supreme Court gave effect to the provisions of the joint will therein mentioned,
saying, assuming that the joint will in question is valid'."

Whence this appeal by the heirs intestate of the deceased husband, Bernabe de la
Cerna.
The appealed decision correctly held that the final decree of probate, entered in
1939 by the Court of First Instance of Cebu (when the testator, Bernabe de la
Cerna, died), has conclusive effect as to his last will and testament, despite the fact
that even then the Civil Code already decreed the invalidity of joint wills, whether

in favor of the joint testators, reciprocally, or in favor of a third party (Art. 669, old
Civil Code). The error thus committed by the probate court was an error of law, that
should have been corrected by appeal, but which did not affect the jurisdiction of the
probate court, nor the conclusive effect of its final decision, however erroneous. A
final judgment rendered on a petition for the probate of a will is binding upon the
whole world (Manalo vs. Paredes, 47 Phil. 938; In re Estate of Johnson, 39 Phil.
156); and public policy and sound practice demand that at the risk of occasional
errors judgment of courts should become final at some definite date fixed by
law. Interest rei publicae ut finis set litium (Dy Cay vs. Crossfield, 38 Phil. 521, and
other cases cited in 2 Moran, Comments on the Rules of Court (1963 Ed., p. 322).
Petitioners, as heirs and successors of the late Bernabe de la Cerna, are concluded
by the 1939 decree admitting his will to probate. The contention that being void the
will cannot be validated, overlooks that the ultimate decision on whether an act is
valid or void rests with the courts, and here they have spoken with finality when the
will was probated in 1939. On this court, the dismissal of their action for partition
was correct.
But the Court of Appeals should have taken into account also, to avoid future
misunderstanding, that the probate decree in 1939 could only affect the share of the
deceased husband, Bernabe de la Cerna. It could not include the disposition of the
share of the wife, Gervasia Rebaca, who was then still alive, and over whose interest
in the conjugal properties the probate court acquired no jurisdiction, precisely
because her estate could not then be in issue. Be it remembered that prior to the
new Civil Code, a will could not be probated during the testators lifetime.
It follows that the validity of the joint will, in so far as the estate of the wife was
concerned, must be, on her death, reexamined and adjudicated de novo, since a joint
will is considered a separate will of each testator. Thus regarded, the holding of the
Court of First Instance of Cebu that the joint will is one prohibited by law was
correct as to the participation of the deceased Gervasia Rebaca in the properties in
question, for the reasons extensively discussed in our decision in Bilbao vs.
Bilbao, 87 Phil. 144, that explained the previous holding in Macrohon vs.
Saavedra, 51 Phil. 267.
Therefore, the undivided interest of Gervasia Rebaca should pass upon her death
to her heirs intestate, and not exclusively to the testamentary heir, unless some

other valid will in her favor is shown to exist, or unless she be the only heir intestate
of said Gervasia.
It is unnecessary to emphasize that the fact that joint wills should be in common
usage could not make them valid when our Civil Codes consistently invalidated
them, because laws are only repealed by other subsequent laws, and no usage to the
contrary may prevail against their observance (Art. 5, Civ. Code of 1889; Art. 7, Civil
Code of the Philippines of 1950).
WITH THE FOREGOING MODIFICATION, the judgment of the Court of
Appeals in CA-G.R. No. 23763-R is affirmed. No Costs.
Bengzon,
C.J., Bautista
Angelo, Concepcion,Barrera, Paredes, Dizon, Regala, Makalintal, Bengzon,
J.P., and Zaldivar, JJ., concur.
Judgment affirmed with modification.
No. L-37453. May 25, 1979.

RIZALINA GABRIEL GONZALES, petitioner, vs.HONORABLE

APPEALS and LUTGARDA SANTIAGO, respondents.

COURT

OF

Court of Appeals; Evidence; Factual findings of Court of Appeals not generally

reviewable.It will be noted from the above assignments of errors that the same are
substantially factual in character and content. Hence, at the very outset, We must again
state the oft-repeated and well-established rule that in this jurisdiction, the factual findings
of the Court of Appeals are not reviewable, the same being binding and conclusive on this
Court. This rule has been stated and reiterated in a long line of cases.
Same; Same; Same.Stated otherwise, findings of facts by the Court of Appeals, when
supported by substantive evidence are not reviewable on appeal by certiorari. Said findings
of the appellate court are final and cannot be disturbed by Us particularly because its
premises are borne out by the record or based upon substantial evidence and what is more,
when such findings are correct. Assignments of errors involving factual issues cannot be
ventiliated in a review of the decision of the Court of Appeals because only legal questions
may be raised. The Supreme Court is not at liberty to alter or modify the facts as set forth
in the decision of the Court of Appeals sought to be reversed. Where the findings of the
Court of Appeals are contrary to those of the trial court, a minute scrutiny by the Supreme

Court is in order, and resort to duly proven evidence becomes necessary. The general rule
We have thus stated above is not without some recognized exceptions.
Will; Settlement of Estate; It is presumed that a witness to a will has the qualifications
prescribed by law, unless the contrary is established by the oppositor.We reject petitioners
contention that it must first be established in the record the good standing of the witness in
the community, his reputation for trustworthiness and reliableness, his honesty and
uprightness, because such attributes are presumed of the witness unless the contrary is
proved otherwise by the opposing party.
Same; Same; Evidence; Naturalization Law; Word credible with regards to witnesses
to a will does not have the meaning of term credible witness used in the Naturalization
Law.We also reject as without merit petitioners contention that the term credible as
used in the Civil Code should be given the same meaning it has under the Naturalization
Law where the law is mandatory that the petition for naturalization must be supported by
two character witnesses who must prove their good standing in the community, reputation
for trustworthiness and reliableness, their honesty and uprightness.
Same; Same; Same; Words competent witness and credible witness compared.In
the strict sense, the competency of a person to be an instrumental witness to a will is
determined by the statute, that is Arts. 820 and 821, Civil Code, whereas his credibility
depends on the appreciation of his testimony and arises from the belief and conclusion of
the Court that said witness is telling the truth. Thus, in the case of Vda. de Aroyo v. El
Beaterio del Santissimo Rosario de Molo, No. L-22005, May 3, 1968, the Supreme Court
held and ruled that: Competency as a witness is one thing, and it is another to be a
credible witness, so credible that the Court must accept what he says. Trial courts may
allow a person to testify as a witness upon a given matter because he is competent, but may
thereafter decide whether to believe or not to believe his testimony.
Same; Same; To be considered a credible witness to a will it is not mandatory that
witness good community standing and probity be first established.In fine, We state the
rule that the instrumental witnesses in order to be competent must be shown to have the
qualifications under Article 820 of the Civil Code and none of the disqualifications under
Article 821 and for their testimony to be credible, that is worthy of belief and entitled to
credence, it is not mandatory that evidence be first established on record that the witnesses
have a good standing in the community or that they are honest and upright or reputed to be
trustworthy and reliable, for a person is presumed to be such unless the contrary is
established otherwise. In other words, the instrumental witnesses must be competent and
their testimonies must be credible before the court allows the probate of the will they have
attested.

Same; Same; Same; Attorneys; Contracts; A will duly acknowledged before a notary
public has in its favor the presumption of regularity, as for example, regarding the date when
the notary was furnished the residence certificates of the witnesses.But whether Atty.
Paraiso was previously furnished with the names and residence certificates of the witnesses
on a prior occasion or on the very occasion and date in April 15, 1961 when the will was
executed, is of no moment for such data appear in the notarial acknowledgment of Notary
Public Cipriano Paraiso, subscribed and sworn to by the witnesses on April 15, 1961
following the attestation clause duly executed and signed on the same occasion, April 15,
1961. And since Exhibit F is a notarial will duly acknowledged by the testatrix and the
witnesses before a notary public, the same is a public document executed and attested
through the intervention of the notary public and as such public document is evidence of
the facts in clear, unequivocal manner therein expressed. It has in its favor the presumption
of regularity. To contradict all these, there must be evidence that is clear, convincing and
more than merely preponderant.
Same; Same; Same; Findings that testatrix dictated her will to her attorney without any
note is a finding of fact.It is also a factual findings of the Court of Appeals in holding that
it was credible that Isabel Gabriel could have dictated the will, Exhibit F, without any
note or document to Atty. Paraiso as against the contention of petitioner that it was
incredible.
Same; Same; Same; Attestation clause best evidence of date the will was signed.The
attestation clause which Matilde Orobia signed is the best evidence as to the date of signing
because it preserves in permanent form a recital of all the material facts attending the
execution of the will. This is the very purpose of the attestation clause which is made for the
purpose of preserving in permanent form, a record of the facts attending the execution of
the will, so that in case of failure in the memory of the subscribing witnesses, or other
casualty they may still be proved.
Same; Same; Same; Fact that there was conflict of testimony as to identity of
photographer who took a photograph of the signing and attestation of the will, not a
requirement of law, is of minor importance. What matters most is the photograph itself.The
law does not require a photographer for the execution and attestation of the will. The fact
that Miss Orobia mistakenly identified the photographer as Cesar Mendoza scarcely
detracts from her testimony that she was present when the will was signed because what
matters here is not the photographer but the photograph taken which clearly portrays
Matilde Orobia herself, her co-witnesses Celso Gimpaya and Maria Gimpaya, Isabel Gabriel
and Atty. Paraiso.

Same; Same; It cannot be expected that the testimony of all the witness will be identical
in all their minutest details.These are indeed unimportant details which could have been
affected by the lapse of time and the treachery of human memory such that by themselves
would not alter the probative value of their testimonies on the true execution of the will,
(Pascua vs. de la Cruz, 28 SCRA 421, 424) for it cannot be expected that the testimony of
every person will be identical and coinciding with each other with regard to details of an
incident and that witnesses are not expected to remember all details. Human experience
teach us that contradictions of witnesses generally occur in the details of certain incidents,
after a long series of questionings, and far from being an evidence.
Same; Same; Findings of facts of trial court may be reviewed and reversed where it
overlooked and misinterpreted the facts on record.Findings of facts made by trial courts
particularly when they are based on conflicting evidence whose evaluation hinges on
questions of credibility of contending witnesses lies peculiarly within the province of trial
courts and generally, the appellate court should not interfere with the same. In the instant
case, however, the Court of Appeals found that the trial court had overlooked and
misinterpreted the facts and circumstances established in the record.
Same; Same; The three instrumental witnesses to the will constitute the best evidence to
the making of the will.Petitioners exacerbation centers on the supposed incredibility of
the testimonies of the witnesses for the proponent of the will, their alleged evasions,
inconsistencies and contradictions. But in the case at bar, the three instrumental witnesses
who constitute the best evidence of the will-making have testified in favor of the probate of
the will. So has the lawyer who prepared it, one learned in the law and long in the practice
thereof, who thereafter notarized it. All of them are disinterested witnesses who stand to
receive no benefit from the testament. The signatures of the witnesses and the testatrix
have been identified on the will and there is no claim whatsoever and by anyone, much less
the petitioner, that they were not genuine. In the last and final analysis, the herein conflict
is factual and We go back to the rule that the Supreme Court cannot review and revise the
findings of fact of the respondent Court of Appeals.

PETITION for review of the decision of the Court of Appeals.

The facts are stated in the opinion of the Court.
Francisco D. Rilloraza, Jr. for petitioners.
Angel A. Sison for private respondent.
GUERRERO, J.:

This is a petition for review of the decision of the Court of Appeals, First
Division, promulgated on May 4, 1973 inCA-G.R. No. 36523-R which reversed the
decision of the Court of First Instance of Rizal dated December 15, 1964 and allowed
the probate of the last will and testament of the deceased Isabel Gabriel.
1

It appears that on June 24, 1961, herein private respondent Lutgarda Santiago
filed a petition with the Court of First Instance of Rizal, docketed as Special
Proceedings No. 3617, for the probate of a will alleged to have been executed by the
deceased Isabel Gabriel and designating therein petitioner as the principal
beneficiary and executrix.
There is no dispute in the records that the late Isabel Andres Gabriel died as a
widow and without issue in the municipality of Navotas, province of Rizal, her place
of residence, on June 7, 1961 at the age of eighty-five (85), having been born in 1876.
It is likewise not controverted that herein private respondent Lutgarda Santiago
and petitioner Rizalina Gabriel Gonzales are nieces of the deceased, and that
private respondent, with her husband and children, lived with the deceased at the
latters residence prior and up to the time of her death.
The will submitted for probate, Exhibit F, which is typewritten and in Tagalog,
appears to have been executed in Manila on the 15th day of April, 1961, or barely
two (2) months prior to the death of Isabel Gabriel. It consists of five (5) pages,
including the pages whereon the attestation clause and the acknowledgment of the
notary public were written. The signatures of the deceased Isabel Gabriel appear at
the end of the will on page four and at the left margin of all the pages. The
attestation clause, which is found on page four, reads as follows:
PATUNAY NG MGA SAKSI
Kaming mga nakalagdang mga saksi o testigo na ang aming mga tinitirahan ay nakasulat
sa gawing kanan at kahilira ng aming mga pangalan sa ibaba nito, ay pagpapatutuo na
ipinakilala, ipinaalam at ipinahayag sa amin ni Isabel Gabriel na ang kasulatang ito na
binubuo ng Limang Dahon (Five Pages) pati na ang dahong ito, na siya niyang
TESTAMENTO AT HULING HABILIN, ngayong ika 15 ng Abril, 1961, ay nilagdaan ng
nasabing testadora na si Isabel Gabriel ang nasabing testamento sa ibaba o ilalim ng
kasulatan na nasa ika apat na dahon (page four) at nasa itaas ng patunay naming ito, at sa
kaliwang panig ng lahat at bawat dahon (and on the left hand margin of each and every
page), sa harap ng lahat at bawat isa sa amin, at kami namang mga saksi ay lumagda sa

harap ng nasabing testadora, at sa harap ng lahat at bawat isa sa amin, sa ilalim ng

patunay ng mga saksi at sa kaliwang panig ng lahat at bawat dahon ng testamentong ito.

At the bottom thereof, under the heading Pangalan, are written the signatures of
Matilde D. Orobia, Celso D. Gimpaya and Maria R. Gimpaya, and opposite the
same, under the heading Tirahan, are their respective places of residence, 961
Highway 54, Philamlife, for Miss Orobia, and 12 Dagala St., Navotas, Rizal, for the
two Gimpayas. Their signatures also appear on the left margin of all the other
pages. The will is paged by typewritten words as follows: Unang Dahon and
underneath (Page One), Ikalawang Dahon and underneath (Page Two), etc.,
appearing at the top of each page.
The will itself provides that the testatrix desired to be buried in the Catholic
Cemetery of Navotas, Rizal in accordance with the rites of the Roman Catholic
Church, all expenses to be paid from her estate; that all her obligations, if any, be
paid; that legacies in specified amounts be given to her sister, Praxides Gabriel Vda.
de Santiago, her brother Santiago Gabriel, and her nephews and nieces, Benjamin,
Salud, Rizalina (herein petitioner), Victoria, Ester, Andres, all surnamed Gabriel,
and Evangelina, Rudyardo, Rosa, Andrea, Marcial, Numancia, Verena, all surnamed
Santiago. To herein private respondent Lutgarda Santiago, who was described in
the will by the testatrix as aking mahal na pamangkin na aking pinalaki,
inalagaan at minahal na katulad ng isang tunay na anak and named as universal
heir and executor, were bequeathed all properties and estate, real or personal,
already acquired, or to be acquired, in her (testatrixs) name, after satisfying the
expenses, debts and legacies as aforementioned.
The petition was opposed by Rizalina Gabriel Gonzales, herein petitioner,
assailing the document purporting to be the will of the deceased on the following
grounds:
1. 1.that the same is not genuine; and in the alternative
2. 2.that the same was not executed and attested as required by law;

1. 3.that, at the time of the alleged execution of the purported will, the decedent lacked
testamentary capacity due to old age and sickness; and in the second alternative

2. 4.that the purported will was procured through undue and improper pressure and
influence on the part of the principal beneficiary, and/or of some other person for
her benefit.

Lutgarda Santiago filed her Answer to the Opposition on February 1, 1962. After
trial, the court a quo rendered judgment, the summary and dispositive portions of
which read:
Passing in summary upon the grounds advanced by the oppositor, this Court finds:
1. 1.That there is no iota of evidence to support the contention that the purported will
of the deceased was procured through undue and improper pressure and influence
on the part of the petitioner, or of some other person for her benefit;
2. 2.That there is insufficient evidence to sustain the contention that at the time of the
alleged execution of the purported will, the deceased lacked testamentary capacity
due to old age and sickness;
3. 3.That sufficient and abundant evidence warrants conclusively the fact that the
purported will of the deceased was not executed and attested as required by law;
4. 4.That the evidence is likewise conclusive that the document presented for probate,
Exhibit F is not the purported will allegedly dictated by the deceased, executed
and signed by her, and attested by her three attesting witnesses on April 15, 1961.
WHEREFORE, Exhibit F, the document presented for probate as the last will and
testament of the deceased Isabel Gabriel, is hereby DISALLOWED.

From this judgment of disallowance, Lutgarda Santiago appealed to respondent

Court, hence, the only issue decided on appeal was whether or not the will in
question was executed and attested as required by law. The Court of Appeals, upon
consideration of the evidence adduced by both parties, rendered the decision now
under review, holding that the will in question was signed and executed by the
deceased Isabel Gabriel on April 15, 1961 in the presence of the three attesting
witnesses, Matilde Orobia, Celso Gimpaya and Maria Gimpaya, signing and
witnessing the document in the presence of the deceased and of each other as
required by law, hence allowed probate.
2

Oppositor Rizalina Gabriel Gonzales moved for reconsideration of the aforesaid

decision and such motion was opposed by petitioner-appellant Lutgarda Santiago.
3

Thereafter, parties submitted their respective Memoranda, and on August 28, 1973,
respondent Court, Former Special First Division, by Resolution denied the motion
for reconsideration stating that:
5

The oppositor-appellee contends that the preponderance of evidence shows that the
supposed last will and testament of Isabel Gabriel was hot executed in accordance with law
because the same was signed on several occasions, that the testatrix did not sign the will in
the presence of all the instrumental witnesses did not sign the will in the presence of each
other.
The resolution of the factual issue raised in the motion for reconsideration hinges on
the appreciation of the evidence. We have carefully re-examined the oral and documentary
evidence of record. There is no reason to alter the findings of fact in the decision of this
Court sought to be set aside.
7

In her petition before this Court, oppositor Rizalina Gabriel Gonzales contends that
respondent Court abused its discretion and/or acted without or in excess of its
jurisdiction in reversing the findings of fact and conclusions of the trial court. The
Court, after deliberating on the petition but without giving due course resolved, in
the Resolution dated Oct. 11, 1973 to require the respondents to comment thereon,
which comment was filed on Nov. 14, 1973. Upon consideration of the allegations,
the issues raised and the arguments adduced in the petition, as well as the
Comment of private respondent thereon, We denied the petition by Resolution on
November 26, 1973, the question raised being factual and for insufficient showing
that the findings of fact by respondent Court were unsupported by substantial
evidence.
8

Subsequently, or on December 17, 1973, petitioner Rizalina Gabriel Gonzales

filed a Motion for Reconsideration which private respondent answered by way of
her Comment or Opposition filed on January 15, 1974. A Reply and Rejoinder to
Reply followed. Finally, on March 27, 1974, We resolved to give due course to the
petition.
10

11

The petitioner in her brief makes the following assignment of errors:

1. I.The respondent Court of Appeals erred in holding that the document. Exhibit F
was executed and attested as required by law when there was absolutely no proof
that the three instrumental witnesses were credible witnesses.

2. II.The Court of Appeals erred in reversing the finding of the lower court that the
preparation and execution of the will Exhibit F, was unexpected and coincidental.
3. III.The Court of Appeals erred in finding that Atty. Paraiso was not previously
furnished with the names and residence certificates of the witnesses as to enable
him to type such data into the document Exhibit F.
4. IV.The Court of Appeals erred in holding that the fact that the three typewritten
lines under the typewritten words Pangalan and Tinitirahan were left blank
shows beyond cavil that the three attesting witnesses were all present in the same
occasion.

5. V.The Court of Appeals erred in reversing the trial courts finding that it was
incredible that Isabel Gabriel could have dictated the will, Exhibit F, without any
note or document, to Atty. Paraiso.
1. VI.The Court of Appeals erred in reversing the finding of the trial court that Matilde
Orubia was not physically present when the will, Exhibit F was allegedly signed
on April 15, 1961 by the deceased Isabel Gabriel and the other witnesses Celso
Gimpaya and Maria Gimpaya.
2. VII.The Court of Appeals erred in holding that the trial court gave undue
importance to the picture takings as proof that the will was improperly executed.
3. VIII.The Court of Appeals erred in holding that the grave contradictions, evasions,
and misrepresentations of witnesses (subscribing and notary) presented by the
petitioner had been explained away, and that the trial court erred in rejecting said
testimonies.
4. IX.The Court of Appeals acted in excess of its appellate jurisdiction or has so far
departed from the accepted and usual course of judicial proceedings, as to call for
an exercise of the power of supervision.
5. X.The Court of Appeals erred in reversing the decision of the trial court and
admitting to probate Exhibit F, the alleged last will and testament of the
deceased Isabel Gabriel.

It will be noted from the above assignments of errors that the same are
substantially factual in character and content. Hence, at the very outset, We must
again state the oft-repeated and well-established rule that in this jurisdiction, the

factual findings of the Court of Appeals are not reviewable, the same being binding
and conclusive on this Court. This rule has been stated and reiterated in a long line
of cases enumerated in Chan vs. CA (L-27488, June 30, 1970, 33 SCRA 737,
743) and Tapas vs. CA (L-22202, February 27; 1976, 69 SCRA 393), and in the more
recent cases of Baptista vs. Carillo and CA(L-32192, July 30, 1976, 72 SCRA 214,
217) and Vda. de Catindig vs. Heirs of Catalina Roque (L-25777, November 26,
1976, 74 SCRA 83, 88). In the case of Chan vs. CA, this Court said:
12

x x x from Guico v. Mayuga, a 1936 decision, the opinion being penned by the then Justice
Recto, it has been well-settled that the jurisdiction of this Court in cases brought to us from
the Court of Appeals is limited to reviewing and revising the errors of law imputed to it, its
findings of fact being conclusive. More specifically, in a decision exactly a month later, this
Court, speaking through the then Justice Laurel, it was held that the same principle is
applicable, even if the Court of Appeals was in disagreement with the lower court as to the
weight of the evidence with a consequent reversal of its findings of fact. x x x

Stated otherwise, findings of facts by the Court of Appeals, when supported by

substantive evidence are not reviewable on appeal by certiorari. Said findings of the
appellate court are final and cannot be disturbed by Us particularly because its
premises are borne out by the record or based upon substantial evidence and what
is more, when such findings are correct. Assignments of errors involving factual
issues cannot be ventilated in a review of the decision of the Court of Appeals
because only legal questions may be raised. The Supreme Court is not at liberty to
alter or modify the facts as set forth in the decision of the Court of Appeals sought
to be reversed. Where the findings of the Court of Appeals are contrary to those of
the trial court, a minute scrutiny by the Supreme Court is in order, and resort to
duly-proven evidence becomes necessary. The general rule We have thus stated
above is not without some recognized exceptions.
Having laid down the above legal precepts as Our foundation, We now proceed to
consider petitioners assignments of errors.
Petitioner, in her first assignment, contends that the respondent Court of
Appeals erred in holding that the document, Exhibit F, was executed and attested
as required by law when there was absolutely no proof that the three instrumental
witnesses were credible witnesses. She argues that the requirement in Article 806,
Civil Code, that the witnesses must be credible is an absolute requirement which
must be complied with before an alleged last will and testament may be admitted to

probate and that to be a credible witness, there must be evidence on record that the
witness has a good standing in his community, or that he is honest and upright, or
reputed to be trustworthy and reliable. According to petitioner, unless the
qualifications of the witness are first established, his testimony may not be favorably
considered. Petitioner contends that the term credible is not synonymous with
competent for a witness may be competent under Article 820 and 821 of the Civil
Code and still not be credible as required by Article 805 of the same Code. It is
further urged that the term credible as used in the Civil Code should receive the
same settled and well-known meaning it has under the Naturalization Law, the
latter being a kindred legislation with the Civil Code provisions on wills with
respect to the qualifications of witnesses.
We find no merit to petitioners first assignment of error. Article 820 of the Civil
Code provides the qualifications of a witness to the execution of wills while Article
821 sets forth the disqualification from being a witness to a will. These Articles
state:
Art. 820. Any person of sound mind and of the age of eighteen years or more, and not blind,
deaf or dumb, and able to read and write, may be a witness to the execution of a will
mentioned in article 805 of this Code.
Art. 21. The following are disqualified from being witnesses to a will:
1. (1)Any person not domiciled in the Philippines,
2. (2)Those who have been convicted of falsification of a document, perjury or false
testimony.

Under the law, there is no mandatory requirement that the witness testify initially
or at any time during the trial as to his good standing in the community, his
reputation for trustworthiness and reliableness, his honesty and uprightness in
order that his testimony may be believed and accepted by the trial court. It is
enough that the qualifications enumerated in Article 820 of the Civil Code are
complied with, such that the soundness of his mind can be shown by or deduced
from his answers to the questions propounded to him, that his age (18 years or
more) is shown from his appearance, testimony, or competently proved otherwise, as
well as the fact that he is not blind, deaf or dumb and that he is able to read and
write to the satisfaction of the Court, and that he has none of the disqualifications

under Article 821 of the Civil Code. We reject petitioners contention that it must
first be established in the record the good standing of the witness in the community,
his reputation for trustworthiness and reliableness, his honesty and uprightness,
because such attributes are presumed of the witness unless the contrary is proved
otherwise by the opposing party.
We also reject as without merit petitioners contention that the term credible as
used in the Civil Code should be given the same meaning it has under the
Naturalization Law where the law is mandatory that the petition for naturalization
must be supported by two character witnesses who must prove their good standing
in the community, reputation for trustworthiness and reliableness, their honesty
and uprightness. The two witnesses in a petition for naturalization are character
witnesses in that being citizens of the Philippines, they personally know the
petitioner to be a resident of the Philippines for the period of time required by the
Act and a person of good repute and morally irreproachable and that said petitioner
has in their opinion all the qualifications necessary to become a citizen of the
Philippines and is not in any way disqualified under the provisions of the
Naturalization Law (Section 7, Commonwealth Act No. 473 as amended).
In probate proceedings, the instrumental witnesses are not character witnesses
for they merely attest the execution of a will or testament and affirm the formalities
attendant to said execution. And We agree with the respondent that the rulings laid
down in the cases cited by petitioner concerning character witnesses in
naturalization proceedings are not applicable to instrumental witnesses to wills
executed under the Civil Code of the Philippines.
In the case at bar, the finding that each and everyone of the three instrumental
witnesses, namely, Matilde Orobia, Celso Gimpaya and Maria Gimpaya, are
competent and credible is satisfactorily supported by the evidence as found by the
respondent Court of Appeals, which findings of fact this Tribunal is bound to accept
and rely upon. Moreover, petitioner has not pointed to any disqualification of any of
the said witnesses, much less has it been shown that anyone of them is below 18
years of age, of unsound mind, deaf or dumb, or cannot read or write.
It is true that under Article 805 of the New Civil Code, every will, other than a
holographic will, must be subscribed at the end thereof by the testator himself or by
the testators name written by some other person in his presence, and by his express

direction, and attested and subscribed by three or more credible witnesses in the
presence of the testator and of one another. While the petitioner submits that
Article 820 and 821 of the New Civil Code speak of the competency of a witness due
to his qualifications under the first Article and none of the disqualifications under
the second Article, whereas Article 805 requires the attestation of three or more
credible witnesses, petitioner concludes that the term crediblerequires something
more than just being competent and, therefore, a witness in addition to being
competent under Articles 820 and 821 must also be a credible witness under Article
805.
Petitioner cites American authorities that competency and credibility of a witness
are not synonymous terms and one may be a competent witness and yet not a
credible one. She exacerbates that there is no evidence on record to show that the
instrumental witnesses are credible in themselves, that is, that they are of good
standing in the community since one was a family driver by profession and the
second the wife of the driver, a housekeeper. It is true that Celso Gimpaya was the
driver of the testatrix and his wife Maria Gimpaya, merely a housekeeper, and that
Matilde Orobia was a piano teacher to a grandchild of the testatrix. But the relation
of employer and employee much less the humble social or financial position of a
person do not disqualify him to be a competent testamentary witness. (Molo-Pekson
and Perez-Nable vs. Tanchuco, et al., 100 Phil 344; Testate Estate of Raymundo, Off.
Gaz., March 18, 1941, p. 788).
Private respondent maintains that the qualifications of the three or more credible
witnesses mentioned in Article 805 of the Civil Code are those mentioned in Article
820 of the same Code, this being obvious from that portion of Article 820 which says
may be a witness to the execution of a will mentioned in Article 805 of this Code,
and cites authorities that the word credible insofar as witnesses to a will are
concerned simply means competent. Thus, in the case of Suntay vs. Suntay, 95
Phil. 500, the Supreme Court held that Granting that a will was duly executed and
that it was in existence at the time of, and not revoked before, the death of the
testator, still the provisions of the lost will must be clearly and distinctly proved by
at least two credible witnesses, Credible witnesses mean competent witnesses and
not those who testify to facts from or upon hearsay. (italics supplied).
In Molo-Pekson and Perez-Nable vs. Tanchuco, et al.,100 Phil. 344, the Supreme
Court held that Section 620 of the same Code of Civil Procedure provides that any

person of sound mind, and of the age of eighteen years or more, and not blind, deaf,
or dumb and able to read and write, may be a witness to the execution of a will. This
same provision is reproduced in our New Civil Code of 1950, under Art. 820. The
relation of employer and employee, or being a relative to the beneficiary in a will,
does not disqualify one to be a witness to a will. The main qualification of a witness
in the attestation of wills, if other qualifications as to age, mental capacity and
literacy are present, is that said witness must be credible, that is to say, his
testimony may be entitled to credence. There is a long line of authorities on this
point, a few of which we may cite:
A credible witness is one who is not disqualified to testify by mental incapacity, crime, or
other cause. Historical Soc. of Dauphin (Words and Phrases, Vol. 10, p. 340).
As construed by the common law, a credible witness to a will means a competent
witness. Appeal of Clark, 95 A. 517, 114 Me. 105, Ann. Cas. 1917A, 837. (Ibid, p. 341).
Expression credible witness in relation to attestation of wills means competent
witness; that is, one competent under the law to testify to fact of execution of will. Vernons
Ann. Civ. St. art. 8283. Moos vs. First State Bank of Uvalde, Tex. Civ. App. 60 S.W. 2nd 888,
889. (Ibid, p. 342)
The term credible, used in the statute of wills requiring that a will shall be attested by
two credible witnesses means competent; witnesses who, at the time of attesting the will,
are legally competent to testify, in a court of justice, to the facts attested by subscribing the
will, the competency being determined as of the date of the execution of the will and not of
the time it is offered for probate. Smith vs. Goodell, 101 N.E. 255, 256, 258 Ill. 145. (Ibid.)
Credible witnesses, as used in the statute relating to wills, means competent witnesses
that is, such persons as are not legally disqualified from testifying in courts of justice, by
reason of mental incapacity, interest, or the commission of crimes, or other cause excluding
them from testifying generally, or rendering them incompetent in respect of the particular
subject matter or in the particular suit Hill vs. Chicago Title & Trust co., 152 N.E. 545, 546,
322 111. 42. (Ibid. p. 343)

In the strict sense, the competency of a person to be an instrumental witness to a

will is determined by the statute, that is Art. 820 and 821, Civil Code, whereas his
credibility depends on the appreciation of his testimony and arises from the belief
and conclusion of the Court that said witness is telling the truth. Thus, in the case
of Vda. de Aroyo v. El Beaterio del Santissimo Rosario de Molo, No. L-22005, May 3,

1968, the Supreme Court held and ruled that: Competency as a witness is one
thing, and it is another to be a credible witness, so credible that the Court must
accept what he says. Trial courts may allow a person to testify as a witness upon a
given matter because he is competent, but may thereafter decide whether to believe
or not to believe his testimony.
In fine, We state the rule that the instrumental witnesses in order to be
competent must be shown to have the qualifications under Article 820 of the Civil
Code and none of the disqualifications under Article 821 and for their testimony to
be credible, that is worthy of belief and entitled to credence, it is not mandatory that
evidence be first established on record that the witnesses have a good standing in
the community or that they are honest and upright or reputed to be trustworthy and
reliable, for a person is presumed to be such unless the contrary is established
otherwise. In other words, the instrumental witnesses must be competent and their
testimonies must be credible before the court allows the probate of the will they
have attested. We, therefore, reject petitioners position that it was fatal for
respondent not to have introduced prior and independent proof of the fact that the
witnesses were credible witnesses, that is, that they have a good standing in the
community and reputed to be trustworthy and reliable.
Under the second, third, fourth, fifth, sixth, seventh and eighth assignments of
errors, petitioner disputes the findings of fact of the respondent court in finding that
the preparation and execution of the will was expected and not coincidental, in
finding that Atty. Paraiso was not previously furnished with the names and
residence certificates of the witnesses as to enable him to type such data into the
document Exhibit F, in holding that the fact that the three typewritten lines
under the typewritten words pangalan and tinitirahan were left blank shows
beyond cavil that the three attesting witnesses were all present in the same
occasion, in holding credible that Isabel Gabriel could have dictated the will without
note or document to Atty. Paraiso, in holding that Matilde Orobia was physically
present when the will was signed on April 15, 1961 by the deceased Isabel Gabriel
and the other witnesses Celso Gimpaya and Maria Gimpaya, in holding that the
trial court gave undue importance to the picture takings as proof that the will was
improperly executed, and in holding that the grave contradictions, evasions and
misrepresentations of the witnesses (subscribing and notary) presented by the
petitioner had been explained away.

Since the above errors are factual, We must repeat what We have previously laid
down that the findings of fact of the appellate court are binding and controlling
which We cannot review, subject to certain exceptions which We will consider and
discuss hereinafter. We are convinced that the appellate courts findings are
sufficiently justified and supported by the evidence on record. Thus, the alleged
unnaturalness characterizing the trip of the testatrix to the office of Atty. Paraiso
and bringing all the witnesses without previous appointment for the preparation
and execution of the will and that it was coincidental that Atty. Paraiso was
available at the moment impugns the finding of the Court of Appeals that although
Atty. Paraiso admitted the visit of Isabel Gabriel and of her companions to his office
on April 15, 1961 was unexpected as there was no prior appointment with him, but
he explained that he was available for any business transaction on that day and that
Isabel Gabriel had earlier requested him to help her prepare her will. The finding of
the appellate court is amply based on the testimony of Celso Gimpaya that he was
not only informed on the morning of the day that he witnessed the will but that it
was the third time when Isabel Gabriel told him that he was going to witness the
making of her will, as well as the testimony of Maria Gimpaya that she was called
by her husband Celso Gimpaya to proceed to Isabel Gabriels house which was
nearby and from said house, they left in a car to the lawyers office, which
testimonies are recited in the respondent Courts decision.
The respondent Court further found the following facts: that Celso Gimpaya and
his wife Maria Gimpaya obtained residence certificates a few days before Exhibit F
was executed. Celso Gimpayas residence certificate No. A-5114942 was issued at
Navotas, Rizal on April 13, 1961 while Maria Gimpayas residence certificate No. A5114974 was issued also at Navotas, Rizal on April 14, 1961. The respondent Court
correctly observed that there was nothing surprising in these facts and that the
securing of these residence certificates two days and one day, respectively, before the
execution of the will on April 15, 1961, far from showing an amazing coincidence,
reveals that the spouses were earlier notified that they would be witnesses to the
execution of Isabel Gabriels will.
We also agree with the respondent Courts conclusion that the excursion to the
office of Atty. Paraiso was planned by the deceased, which conclusion was correctly
drawn from the testimony of the Gimpaya spouses that they started from the
Navotas residence of the deceased with a photographer and Isabel Gabriel herself,
then they proceeded by car to Matilde Orobias house in Philamlife, Quezon City to

fetch her and from there, all the three witnesses (the Gimpayas and Orobia) passed
by a place where Isabel Gabriel stayed for about ten to fifteen minutes at the clinic
of Dr. Chikiamco before they proceeded to Atty. Cipriano Paraisos office.
It is also evident from the records, as testified to by Atty. Paraiso, that previous
to the day that, the will was executed on April 15, 1961, Isabel Gabriel had
requested him to help her in the execution of her will and that he told her that if she
really wanted to execute her will, she should bring with her at least the Mayor of
Navotas, Rizal and a Councilor to be her witnesses and that he (Atty. Paraiso)
wanted a medical certificate from a physician notwithstanding the fact that he
believed her to be of sound and disposition mind. From this evidence, the appellate
court rightly concluded, thus: It is, therefore, clear that the presence of Isabel
Gabriel and her witnesses Matilde Orobia, Celso Gimpaya and Maria Gimpaya
including the photographer in the law office of Atty. Paraiso was not coincidental as
their gathering was pre-arranged by Isabel Gabriel herself.
As to the appellate courts finding that Atty. Paraiso was not previously furnished
with the names and residence certificates of the witnesses as to enable him to type
such data into the document Exhibit T, which the petitioner assails as
contradictory and irreconcilable with the statement of the Court that Atty. Paraiso
was handed a list (containing the names of the witnesses and their respective
residence certificates) immediately upon their arrival in the law office by Isabel
Gabriel and this was corroborated by Atty. Paraiso himself who testified that it was
only on said occasion that he received such list from Isabel Gabriel, We cannot agree
with petitioners contention. We find no contradiction for the respondent Court held
that on the occasion of the will-making on April 15, 1961, the list was given
immediately to Atty. Paraiso and that no such list was given the lawyer in any
previous occasion or date prior to April 15, 1961.
But whether Atty. Paraiso was previously furnished with the names and
residence certificates of the witnesses on a prior occasion or on the very occasion
and date in April 15, 1961 when the will was executed, is of no moment for such
data appear in the notarial acknowledgment of Notary Public Cipriano Paraiso,
subscribed and sworn to by the witnesses on April 15, 1961 following the attestation
clause duly executed and signed on the same occasion, April 15, 1961. And since
Exhibit F is a notarial will duly acknowledged by the testatrix and the witnesses
before a notary public, the same is a public document executed and attested through

the intervention of the notary public and as such public document is evidence of the
facts in clear, unequivocal manner therein expressed. It has in its favor the
presumption of regularity. To contradict all these, there must be evidence that is
clear, convincing and more than merely preponderant. (Yturalde vs. Azurin, 28
SCRA 407). We find no such evidence pointed by petitioner in the case at bar.
Likewise, the conclusion of the Court of Appeals in holding that the fact that the
three typewritten lines under the typewritten words pangalar and tinitirahan
were left blank shows beyond cavil that the three attesting witnesses were all
present in the same occasion merits Our approval because this conclusion is
supported and borne out by the evidence found by the appellate court, thus: On
page 5 of Exhibit F, beneath the typewritten words names, Res. Tax Cert.,
date issued and place issued the only name of Isabel Gabriel with Residence Tax
Certificate No. A-5113274 issued on February 24, 1961 at Navotas, Rizal appears to
be in typewritten form while the names, residence tax certificate numbers, dates
and places of issuance of said certificates pertaining to the three (3) witnesses were
personally handwritten by Atty. Paraiso. Again, this coincides with Atty. Paraisos
even the saie must be made to close relatives; and the seventh was the appointment
of the appellant Santiago as executrix of the will without bond. The technical
description of the properties in paragraph 5 of Exhibit F was not given and the
numbers of the certificates of title were only supplied by Atty. Paraiso.
It is true that in one disposition, the numbers of the Torrens titles of the
properties disposed and the docket number of a special proceeding are indicated
which Atty. Paraiso candidly admitted were supplied by him, whereupon petitioner
contends that it was incredible that Isabel Gabriel could have dictated the will
Exhibit F without any note or document to Atty. Paraiso, considering that Isabel
Gabriel was an old and sickly woman more than eighty-one years old and had been
suffering from a brain injury caused by two severe blows at her head and died of
terminal cancer a few weeks after the execution of Exhibit F While we can rule
that this is a finding of fact which is within the competency of the respondent
appellate court in determining the testamentary capacity of the testatrix and is,
therefore, beyond Our power to revise and review, We nevertheless hold that the
conclusion reached by the Court of Appeals that the testatrix dictated her will
without any note or memorandum appears to be fully supported by the following
facts or evidence appearing on record. Thus, Isabel Gabriel, despite her age, was
particularly active in her business affairs as she actively managed the affairs of the

movie business Isabelita Theater, paying the aparatistas herself until June 4, 1961,
3 days before her death. She was the widow of the late Eligio Naval, former
Governor of Rizal Province and acted as co-administratrix in the Intestate Estate of
her deceased husband Eligio Naval. The text of the will was in Tagalog, a dialect
known and understood by her and in the light of all the circumstances, We agree
with the respondent Court that the testatrix dictated her will without any note or
memorandum, a fact unanimously testified to by the three attesting witnesses and
the notary public himself.
Petitioners sixth assignment of error is also bereft of merit. The evidence, both
testimonial and documentary is, according to the respondent court, overwhelming
that Matilde Orobia was physically present when the will was signed on April 15,
1961 by the testatrix and the other two witnesses, Celso Gimpaya and Maria
Gimpaya. Such factual finding of the appellate court is very clear, thus: On the
contrary, the record is replete with proof that Matilde Orobia was physically present
when the will was signed by Isabel Gabriel on April 15, 1961 along with her cowitnesses Celso Gimpaya and Maria Gimpaya. The trial courts conclusion that
Orobias admission that she gave piano lessons to the child of the appellant on
Wednesdays and Saturdays and that April 15, 1961 happened to be a Saturday for
which reason Orobia could not have been present to witness the will on that dayis
purely conjectural. Witness Orobia did not admit having given piano lessons to the
appellants child every Wednesday and Saturday without fail. It is highly probable
that even if April 15, 1961 were a Saturday, she gave no piano lessons on that day
for which reason she could have witnessed the execution of the will. Orobia spoke of
occasions when she missed giving piano lessons and had to make up for the same.
Anyway, her presence at the law office of Atty. Paraiso was in the morning of April
15, 1961 and there was nothing to preclude her from giving piano lessons on the
afternoon of the same day in Navotas, Rizal.
In addition to the testimony of Matilde Orobia, Celso Gimpaya and Maria
Gimpaya that Matilde was present on April 15, 1961 and that she signed the
attestation clause to the will and on the left-hand margin of each of the pages of the
will, the documentary evidence which is the will itself, the attestation clause and
the notarial acknowledgment overwhelmingly and convincingly prove such fact that
Matilde Orobia was present on that day of April 15, 1961 and that she witnessed
the will by signing her name thereon and acknowledged the same before the notary
public, Atty. Cipriano P. Paraiso. The attestation clause which Matilde Orobia

signed is the best evidence as to the date of signing because it preserves in

permanent form a recital of all the material facts attending the execution of the will.
This is the very purpose of the attestation clause which is made for the purpose of
preserving in permanent form, a record of the facts attending the execution of the
will, so that in case of failure in the memory of the subscribing witnesses, or other
casualty they may still be proved.(Thompson on Wills, 2nd ed., Sec. 132; Leynez vs.
Leynez,68 Phil. 745).
As to the seventh error assigned by petitioner faulting the Court of Appeals in
holding that the trial court gave undue importance to the picture-takings as proof
that the will was improperly executed, We agree with the reasoning of the
respondent court that: Matilde Orobias identification of the photographer as
Cesar Mendoza, contrary to what the other two witnesses (Celso and Maria
Gimpaya) and Atty. Paraiso said that the photographer was Benjamin Cifra, Jr., is
at worst a minor mistake attributable to lapse of time. The law does not require a
photographer for the execution and attestation of the will. The fact that Miss Orobia
mistakenly identified the photographer as Cesar Mendoza scarcely detracts from
her testimony that she was present when the will was signed because what matters
here is not the photographer but the photograph taken which clearly portrays
Matilde Orobia herself, her co-witnesses Celso Gimpaya. Further, the respondent
Court correctly held: The trial court gave undue importance to the picture-takings,
jumping therefrom to the conclusion that the will was improperly executed. The
evidence however, heavily points to only one occasion of the execution of the will on
April 15, 1961 which was witnessed by Matilde Orobia, Celso Gimpaya and Maria
Gimpaya. These witnesses were quite emphatic and positive when they spoke of this
occasion. Hence, their identification of some photographs wherein they all appeared
along with Isabel Gabriel and Atty. Paraiso was superfluous.
Continuing, the respondent Court declared: It is true that the second picturetaking was disclosed at the cross examination of Celso Gimpaya. But this was
explained by Atty. Paraiso as a reenactment of the first incident upon the insistence
of Isabel Gabriel. Such reenactment where Matilde Orobia was admittedly no longer
present was wholly unnecessary if not pointless. What was important was that the
will was duly executed and witnessed on the first occasion on April 15, 1961, and
We agree with the Courts rationalization in conformity with logic, law and
jurisprudence which do not require picture-taking as one of the legal requisites for
the execution or probate of a will.

Petitioner
points
to
alleged
grave
contradictions,
evasions
and
misrepresentations of witnesses in their respective testimonies before the trial
court. On the other hand, the respondent Court of Appeals held that said
contradictions, evasions and misrepresentations had been explained away. Such
discrepancies as in the description of the typewriter used by Atty. Paraiso which he
described as elite which to him meant big letters which are of the type in which
the will was typewritten but which was identified by witness Jolly Bugarin of the
N.B.I, as pica, the mistake in mentioning the name of the photographer by Matilde
Orobia to be Cesar Mendoza when actually it was Benjamin Cifra, Jr.these are
indeed unimportant details which could have been affected by the lapse of time and
the treachery of human memory such that by themselves would not alter the
probative value of their testimonies on the true execution of the will, (Pascual vs.
dela Cruz, 28 SCRA 421, 424) for it cannot be expected that the testimony of every
person will be identical and coinciding with each other with regard to details of an
incident and that witnesses are not expected to remember all details. Human
experience teach us that contradictions of witnesses generally occur in the details
of certain incidents, after a long series of questionings, and far from being an
evidence of falsehood constitute a demonstration of good faith. Inasmuch as not all
those who witness an incident are impressed in like manner, it is but natural that in
relating their impressions, they should not agree in the minor details; hence the
contradictions in their testimony. (Lopez vs. Liboro, 81 Phil. 429).
It is urged of Us by the petitioner that the findings of the trial court should not
have been disturbed by the respondent appellate court because the trial court was
in a better position to weigh and evaluate the evidence presented in the course of
the trial As a general rule, petitioner is correct but it is subject to well-established
exceptions. The right of the Court of Appeals to review, alter and reverse the
findings of the trial court where the appellate court, in reviewing the evidence has
found that facts and circumstances of weight and influence have been ignored and
overlooked and the significance of which have been misinterpreted by the trial court,
cannot be disputed. Findings of facts made by trial courts particularly when they
are based on conflicting evidence whose evaluation hinges on questions of credibility
of contending witnesses lies peculiarly within the province of trial courts and
generally, the appellate court should not interfere with the same. In the instant
case, however, the Court of Appeals found that the trial court had overlooked and
misinterpreted the facts and circumstances established in the record. Whereas the
appellate court said that Nothing in the record supports the trial courts unbelief

that Isabel Gabriel dictated her will without any note or document to Atty. Paraiso;
that the trial courts conclusion that Matilde Orobia could not have witnessed
anybody signing the alleged will or that she could not have witnessed Celso
Gimpaya and Maria Gimpaya sign the same or that she witnessed only the deceased
signing it, is a conclusion based not on facts but on inferences; that the trial court
gave undue importance to the picture-takings, jumping therefrom to the conclusion
that the will was improperly executed and that there is nothing in the entire record
to support the conclusion of the court a quo that the will-signing occasion was a
mere coincidence and that Isabel Gabriel made an appointment only with Matilde
Orobia to witness the signing of her will, then it becomes the duty of the appellate
court to reverse findings of fact of the trial court in the exercise of its appellate
jurisdiction over the lower courts.
Still the petitioner insists that the case at bar is an exception to the rule that the
judgment of the Court of Appeals is conclusive as to the facts and cannot be
reviewed by the Supreme Court. Again We agree with the petitioner that among the
exceptions are: (1) when the conclusion is a finding grounded entirely on
speculations, surmises or conjectures; (2) when the inference is manifestly
mistaken, absurd or impossible; (3) when there is a grave abuse of discretion; (4)
when the presence of each other as required by law. Specifically, We affirm that on
April 15, 1961 the testatrix Isabel Gabriel, together with Matilde Orobia, Celso
Gimpaya and his wife Maria Gimpaya, and a photographer proceeded in a car to the
office of Atty. Cipriano Paraiso at the Bank of P.I. Building, Manila in the morning
of that day; that on the way, Isabel Gabriel obtained a medical certificate from one
Dr. Chikiamko which she gave to Atty. Paraiso upon arriving at the latters office
and told the lawyer that she wanted her will to be made; that Atty. Paraiso asked
Isabel Gabriel to dictate what she wanted to be written in the will and the attorney
wrote down the dictation of Isabel Gabriel in Tagalog, a language known to and
spoken by her; that Atty. Paraiso read back to her what he wrote as dictated and she
affirmed their correctness; the lawyer then typed the will and after finishing the
document, he read it to her and she told him that it was alright; that thereafter,
Isabel Gabriel signed her name at the end of the will in the presence of the three
witnesses Matilde Orobia, Celso Gimpaya and Maria Gimpaya and also at the lefthand margin of each and every page of the document in the presence also of the said
three witnesses; that thereafter Matilde Orobia attested the will by signing her
name at the end of the attestation clause and at the left-hand margin of pages 1, 2,
3 and 5 of the document in the presence of Isabel Gabriel and the other two

witnesses, Celso Gimpaya and Maria Gimpaya; then, Celso Gimpaya signed also the
will at the bottom of the attestation clause and at the left-hand margin of the other
pages of the document in the presence of Isabel Gabriel, Matilde Orobia and Maria
Gimpaya; that Maria Gimpaya followed suit, signing her name at the foot of the
attestation clause and at the left-hand margin of every page in the presence of
Isabel Gabriel, Matilde Orobia and Celso Gimpaya; that thereafter, Atty. Paraiso
notarized the will as Page No. 94, Book No. IV, Series of 1961, in his Notarial
Register. On the occasion of the execution and attestation of the will, a
photographer took pictures, one Exhibit G, depicting Matilde Orobia, the testatrix
Isabel Gabriel, Celso Gimpaya, Maria Gimpaya and Atty. Paraiso, taken on said
occasion of the signing of the will, and another, Exhibit H, showing Matilde Orobia
signing testimony that he had earlier advised Isabel Gabriel to bring with her at
least the Mayor and a Councilor of Navotas, Rizal to be her witnesses for he did not
know beforehand the identities of the three attesting witnesses until the latter
showed up at his law office with Isabel Gabriel on April 15, 1961. Atty. Paraisos
claim-which was not controverted that he wrote down in his own hand the date
appearing on page 5 of Exhibit F dissipates any lingering doubt that he prepared
and ratified the will on the date in question.
It is also a factual finding of the Court of Appeals in holding that it was credible
that Isabel Gabriel could have dictated the will, Exhibit F, without any note or
document to Atty. Paraiso as against the contention of petitioner that it was
incredible. This ruling of the respondent court is fully supported by the evidence on
record as stated in the decision under review, thus: Nothing in the record supports
the trial courts unbelief that Isabel Gabriel dictated her will without any note or
document to Atty. Paraiso. On the contrary, all the three attesting witnesses
uniformly testified that Isabel Gabriel dictated her will to Atty. Paraiso and that
other than the piece of paper that she handed to said lawyer she had no note or
document. This fact jibes with the evidencewhich the trial court itself believed
was unshakenthat Isabel Gabriel was of sound disposing memory when she
executed her will.
Exhibit F reveals only seven (7) dispositions which are not complicated but
quite simple. The first was Isabel Gabriels wish to be interred according to Catholic
rites; the second was a general directive to pay her debts if any; the third provided
for P1,000.00 for her sister Praxides Gabriel Vda. de Santiago and P2,000.00 for her
brother Santiago Gabriel; the fourth was a listing of her 13 nephews and nieces

including oppositor-appellee Rizalina Gabriel and the amount for each legatee; the
fifth was the institution of the petitioner-appellant, Lutgarda Santiago as the
principal heir mentioning in general terms seven (7) types of properties; the sixth
disposed of the remainder of her estate which she willed in favor of appellant
Lutgarda Santiago but prohibiting the sale of such properties to anyone except in
extreme situations in which judgment is based on a misapprehension of facts; (5)
when the findings of fact are conflicting; (6) when the Court of Appeals, in making
its findings, went beyond the issues of the case and the same is contrary to the
admissions of both appellant and appellee. (Roque vs. Buan, et al., G.R. No. L22459, Oct. 31, 1967; Ramos vs. Pepsi Cola Bottling Co.,G.R. No. L-22533, Feb. 9,
1967; Hilario, Jr. vs. City of Manila, G.R. No. L-19570; Sept. 14, 1967).
Petitioners insistence is without merit. We hold that the case at bar does not fall
within any of the exceptions enumerated above. We likewise hold that the findings of
fact of the respondent appellate court are fully supported by the evidence on record.
The conclusions are fully sustained by substantial evidence. We find no abuse of
discretion and We discern no misapprehension of facts. The respondent Courts
findings of fact are not conflicting. Hence, the well-established rule that the decision
of the Court of Appeals and its findings of fact are binding and conclusive and
should not be disturbed by this Tribunal and it must be applied in the case at bar in
its full force and effect, without qualification or reservation. The above holding
simply synthesizes the resolutions we have heretofore made in respect to petitioners
previous assignments of error and to which We have disagreed and, therefore,
rejected.
The last assignments of error of petitioner must necessarily be rejected by Us as
We find the respondent Court acted properly and correctly and has not departed
from the accepted and usual course of judicial proceedings as to call for the exercise
of the power of supervision by the Supreme Court, and as We find that the Court of
Appeals did not err in reversing the decision of the trial court and admitting to
probate Exhibit F, the last will and testament of the deceased Isabel Gabriel.
We rule that the respondent Courts factual findings upon its summation and
evaluation of the evidence on record is unassailable that: From the welter of
evidence presented, we are convinced that the will in question was executed on April
15, 1961 in the presence of Matilde Orobia, Celso Gimpaya and Maria Gimpaya
signing and witnessing the same in the the will on a table with Isabel Gabriel, Celso

Gimpaya and Maria Gimpaya sitting around the table. Atty. Paraiso, after finishing
the notarial act, then delivered the original to Isabel Gabriel and retained the other
copies for his file and notarial register. A few days following the signing of the will,
Isabel Gabriel, Celso Gimpaya and another photographer arrived at the office of
Atty. Paraiso and told the lawyer that she wanted another picture taken because the
first picture did not turn out good. The lawyer told her that this cannot be done
because the will was already signed but Isabel Gabriel insisted that a picture be
taken, so a simulated signing was performed during which incident Matilde Orobia
was not present.
Petitioners exacerbation centers on the supposed incredibility of the testimonies
of the witnesses for the proponent of the will, their alleged evasions, inconsistencies
and contradictions. But in the case at bar, the three instrumental witnesses who
constitute the best evidence of the will-making have testified in favor of the probate
of the will. So has the lawyer who prepared it, one learned in the law and long in the
practice thereof, who thereafter notarized it. All of them are disinterested witnesses
who stand to receive no benefit from the testament. The signatures of the witnesses
and the testatrix have been identified on the will and there is no claim whatsoever
and by anyone, much less the petitioner, that they were not genuine. In the last and
final analysis, the herein conflict is factual and we go back to the rule that the
Supreme Court cannot review and revise the findings of facts of the respondent
Court of Appeals.
WHEREFORE, IN VIEW OF THE FOREGOING, the judgment appealed from is
hereby AFFIRMED, with costs against the petitioner.
SO ORDERED.
Teehankee, Makasiar, De Castro and Herrera, JJ.,concur.
Judgment affirmed.
Notes.The cumulative effect of circumstances may lead to the conclusion that the testator was indeed
mentally incapacitated to make a will, that is, to know the nature of his estate which is to be disposed of the
proper objects of his bounty, and the character of the testamentary act. (Ramirez vs. Ramirez, 39 SCRA 147.)
An acknowledging notary cannot serve as a witness to a will at the same time. (Cruz vs. Villasor, 54 SCRA
31.)

Even if its allowance is not opposed, the court must be convinced of the authenticity and due execution of the
will which requires that in such a situation at least one attesting witness must testify. ( Vda. de Precilla vs.
Narciso, 46 SCRA 538.)
Nothing less than the best evidence should be required to be presented to the court before a document
purporting to be a will is to be admitted to probate or be denied probate. (Vda. de Precilla vs. Narciso, 46 SCRA
538.)
The jurisdiction of a probate court becomes vested upon the delivery thereto of the will even if no petition for
its allowance was filed until later, because, upon the will being deposited, the court could, motu proprio have
taken steps to fix the time and place for proving the will and issued the corresponding notices conformably to
what is prescribed by Section 3, Rule 76, of the Revised Rules of Court (Section 3, Rule 77, of the Old Rules of
Court.) (Rodriguez vs. Borja, 17 SCRA 418.)
Where intestate proceedings before a court of first instance had already been commenced, the probate of the
will should be filed in the same court, either in a separate special proceeding or in an appropriate motion for
said purpose filed is already pending intestate proceeding. (Uriarte vs. Court of First Instance of Negros
Occidental, 33 SCRA 252.)
A will maybe allowed even if some witnesses do not remember having attested to it, if other evidence
satisfactorily show due execution, and that failure of witness to identify his signature does not provate.
(Maravilla vs. Maravilla, 37 SCRA 672.)

[No. 26317. January 29, 1927]

Estate

of

Miguel

Mamuyac,

deceased.

FRANCISCO

GAGO,

petitioner

and

appellant, vs. CORNELIO MAMUYAC, AMBROSIO LARIOSA, FELICIANA BAUZON, and

CATALINA MAMUYAC, opponents and appellees.
WILLS, CANCELLATION OF; PRESUMPTION.The law does not require any evidence of
the revocation or cancellation of the will to be preserved. It therefore becomes difficult at times to
prove the cancellation or revocation of wills. The fact that such cancellation or revocation has
taken place must either remain unproved or be inferred from evidence showing that after due
search the original will cannot be found. Where a will which cannot be found is shown to have
been in the possession of the testator, when last seen, the presumption is, in the absence of other
competent evidence, that the same was cancelled or destroyed. The same presumption arises
where it is shown that the testator had ready access to the will and it cannot be found after his
death. It will not be presumed that such will has been destroyed by any other person without the
knowledge or authority of the testator.

APPEAL from a judgment of the Court of First Instance of La Union. Teodoro, J.

The facts are stated in the opinion of the court.
Nicanor Tavora for appellant.
Jose Rivera for appellees.
JOHNSON, 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 Agoo of the
Province of La Union. It appears from the record that on or about the 27th day of July, 1918,
the said Miguel Mamuyac executed a last will and testament (Exhibit A). In the month of
January, 1922, the said Francisco Gago presented a petition in the Court of First Instance
of the Province of La Union f or the probation of that will. The probation of the same was
opposed by Cornelio Mamuyac, Ambrosio Lariosa, Feliciana Bauzon, and Catalina
Mamuyac (civil cause No. 1144, Province of La Union), After hearing all of the parties the
petition for the probation of said will was denied by the Honorable C. M. Villareal on the 2d
day of November, 1923, upon the ground that the deceased had on the 16th day of April,
1919, executed a new will and testament.
On the 21st day of February, 1925, the present action was commenced. Its purpose was
to secure the probation of the said will of the 16th day of April, 1919 (Exhibit 1). To said
petition Cornelio Mamuyac, Ambrosio Lariosa, Feliciana Bauzon, and Catalina Mamuyac
presented their oppositions, alleging (a) that the said will is a copy of the second will and
testament executed by the said Miguel Mamuyac; (b) that. the same had been cancelled and
revoked during the lifetime of Miguel Mamuyac and (c) that the said will was not the last
will and testament of the deceased Miguel Mamuyac.
Upon the issue thus presented, the Honorable Anastasio R. Teodoro, judge, after hearing
the respective parties, denied the probation of said will of April 16,1919, upon the ground
that the same had been cancelled and revoked in the year 1920. Judge Teodoro, after
examining the evidence adduced, found that the following facts had been satisfactorily
proved:

"That Exhibit A is a mere carbon copy of its original which remained in the possession of
the deceased testator Miguel Mamuyac, who revoked it before his death as per testimony of
witnesses Jose Fenoy, who typed the will of the testator on April 16, 1919, and Carlos Bejar,
who saw on December 30, 1920, the original of Exhibit A (will of 1919) actually cancelled by
the testator Miguel Mamuyac, who assured Carlos Bejar that inasmuch as he had sold him
a house and the land where the house was built, he had to cancel it (the will of 1919),
executing thereby a new testament. Narcisa Gago in a way corroborates the testimony of
Jose Fenoy, admitting that the will executed by the deceased (Miguel Mamuyac) in 1919
was found in the possession of father Miguel Mamuyac. The opponents have successfully
established the fact that father Miguel Mamuyac had executed in 1920 another will. The
same Narcisa Gago, the sister of the deceased, who was living in the house with him, when
cross-examined by attorney for the opponents, testified that the original of Exhibit A could
not be found. For the foregoing consideration and for the reason that the original of Exhibit
A has been cancelled by the deceased father Miguel Mamuyac, the court disallows the
probate of Exhibit A for the applicant." From that order the petitioner appealed.
The appellant contends that the lower court committed an error in not finding from the
evidence that the will in question had been executed with all the formalities required by the
law; that the same had been revoked and cancelled in 1920 before his death; that the said
will was a mere carbon copy and that the oppositors were not estopped f rom alleging that f
act.
With reference to the said cancellation, it may be stated that there is positive proof, not
denied, which was accepted by the lower court, that the will in question had been cancelled
in 1920. The law does not require any evidence of the revocation or cancellation of a will to.
be preserved. It therefore becomes difficult at times to prove the revocation or cancellation
of wills. The fact that. such cancellation or revocation has taken place must either remain
unproved or be inferred from evidence showing that after due search the original will
cannot be found. Where a will which cannot be found is shown to have been in the
possession of the testator, when last seen, the presumption is, in the absence of other
competent evidence, that the same was cancelled or destroyed. The same presumption
arises where it is shown that the testator had ready access to the will and it cannot be
found after his death. It will not be presumed that such will has been destroyed by any
other person without the knowledge or authority of the testator. The force of the
presumption of cancellation or revocation by the testator, while varying greatly, being weak

or strong according to the circumstances, is never conclusive, but may be overcome by proof
that the will was not destroyed by the testator with intent to revoke it.
In view of the fact that the original will of 1919 could not be f ound af ter the death of the
testator Miguel Mamuyac and in view of the positive proof that the same had been
cancelled, we are f orced to the conclusion that the conclusions of the lower court are in
accordance with the weight of the evidence. In a proceeding to probate a will the burden of
proof is upon the proponent clearly to establish not only its execution but its existence.
Having proved its execution by the proponents, the burden is on the contestant to show that
it has been revoked. In a great majority of instances in which wills are destroyed for the
purpose of revoking them there is no witness to the act of cancellation or destruction and all
evidence of its cancellation perishes with the testator. Copies of wills should be admitted by
the courts with great caution. When it is proven, however, by proper testimony that a will
was executed in duplicate and each copy was executed with all the formalities and
requirements of the law, then the duplicate may be admitted in evidence when it is made to
appear that the original has been lost and was not cancelled or destroyed by the testator.
(Borromeo vs.Casquijo, G. R. No. 26063.)

After a careful examination of the entire record, we are fully persuaded that the will
presented for probate had been cancelled by the testator in 1920. Therefore the judgment
appealed from is hereby affirmed. And without any finding as to costs, it is so ordered.
Street, Malcolm, Villamor, Ostrand, Romualdez, andVillaReal, JJ., concur.
Judgment affirmed.

No. L-76464. February 29, 1988.

TESTATE ESTATE OF THE LATE ADRIANA MALOTO, ALDINA MALOTO

CASIANO, CONSTANCIO MALOTO, PURIFICACION MIRAFLOR, ROMAN
CATHOLIC CHURCH OF MOLO, AND ASILO DE MOLO, petitioners,vs. COURT
OF APPEALS, PANFILO MALOTO AND FELINO MALOTO, respondents.
Civil Law; Wills; Revocation of Will; To constitute an effective revocation, the physical
act of destruction of a will must be coupled with animus revocandi on the part of the testator.
It is clear that the physical act of destruction of a will, like burning in this case, does not
per se constitute an effective revocation, unless the destruction is coupled with animus

revocandi on the part of the testator. It is not imperative that the physical destruction be
done by the testator himself. It may be performed by another person but under the express
direction and in the presence of the testator. Of course, it goes without saying that the
document destroyed must be the will itself.
Same; Same; Same; Same; Intention to revoke must be accompanied by overt physical
act of burning, tearing, obliterating or cancelling the will by the testator or by another person
in his presence and under his express direction.In this case, while animus revocandi, or
the intention to revoke, may be conceded, for that is a state of mind, yet that requisite alone
would not suffice. Animus revocandi is only one of the necessary elements for the effective
revocation of a last will and testament. The intention to revoke must be accompanied by the
overt physical act of burning, tearing, obliterating, or cancelling the will carried out by the
testator or by another person in his presence and under his express direction. There is
paucity of evidence to show compliance with these requirements. For one, the document or
papers burned by Adriana's maid, Guadalupe, was not satisfactorily established to be a will
at all, much less the will of Adriana Maloto. For another, the burning was not proven to
have been done under the express direction of Adriana. And then, the burning was not in
her presence. Both witnesses, Guadalupe and Eladio, were one in stating that they were the
only ones present at the place where the stove (presumably in the kitchen) was located in
which the papers proferred as a will were burned.
Civil Procedure; Res Adjudicata; Doctrine of res adjudicata finds no application in the
case at bar; Requisites of res adjudicata.The doctrine of res adjudicata finds no
application in the present controversy. For a judgment to be a bar to a subsequent case, the
following requisites must concur: (1) the presence of a final former judgment; (2) the former
judgment was rendered by a court having jurisdiction over the subject matter and the
parties; (3) the former judgment is a judgment on the merits; and (4) there is, between the
first and the second action, identity of parties, of subject matter, and of cause of action. We
do not find here the presence of all the enumerated requisites.
Same; Same; Same; Strictly speaking, no final judgment rendered insofar as the
probate of Adriana Maloto's will is concerned.For one, there is yet, strictly speaking, no
final judgment rendered insofar as the probate of Adriana Maloto's will is concerned. The
decision of the trial court in Special Proceeding No. 1736, although final, involved only the
intestate Settlement of the estate of Adria iana. As such, that j udgment could not in any
manner be construed to be final with respect to the probate of the subsequently discovered
will of the decedent. Neither is it a judgment on the merits of the action for probate. This is
understandably so because the trial court, in the intestate proceeding, was without
jurisdiction to rule on the probate of the contested will. After all, an action for probate, as it
implies, is founded on the presence of a will and with the objective of proving its due

execution and validity, something which can not be properly done in an intestate settlement
of estate proceeding which is predicated on the assumption that the decedent left no will.
Thus, there is likewise no identity between the cause of action in intestate proceeding and
that in an action for probate, Be that as it may, it would be remembered that it was
precisely because of our ruling in G.R. No. L-30479 that the petitioners instituted this
separate action for the probate of the late Adriana Maloto's will. Hence, on these grounds
alone, the position of the private respondents on this score can not be sustained.

PETITION for certiorari to review the decision of the Court of Appeals.

The facts are stated in the opinion of the Court.
SARMIENTO, J.:
This is not the first time that the parties to this case come to us. In fact, two other
cases directly related to the present one and involving the same parties had already
been decided by us in the past. In G.R. No. L-30479, which was a petition for
certiorari and mandamus instituted by the petitioners herein, we dismissed the
petition ruling that the more appropriate remedy of the petitioners is a separate
proceeding for the probate of the will in question. Pursuant to the said ruling, the
petitioners commenced in the then Court of First Instance of Iloilo, Special
Proceeding No. 2176, for the probate of the disputed will, which was opposed by the
private respondents presently, Panfilo and Felino, both surnamed Maloto. The trial
court dismissed the petition on April 30, 1970. Complaining against the dismissal,
again, the petitioners came to this Court on a petition for review by
certiorari. Acting on the said petition, we set aside the trial court's order and
directed it to proceed to hear the case on the merits. The trial court, after hearing,
found the will to have already been revoked by the testatrix. Adriana Maloto, and
thus, denied the petition. The petitioners appealed the trial court's decision to the
Intermediate Appellate Court which, on June 7, 1985, affirmed the order. The
petitioners' motion for reconsideration of the adverse decision proved to be of no
avail, hence, this petition.
1

For a better understanding of the controversy, a factual account would be a great

help.
On October 20, 1963, Adriana Maloto died leaving as heirs her niece and
nephews, the petitioners Aldina Maloto-Casiano and Constancio Maloto, and the

private respondents Panfilo Maloto and Felino Maloto. Believing that the deceased
did not leave behind a last will and testament, these four heirs commenced on
November 4, 1963 an intestate proceeding for the settlement of their aunt's estate.
The case was instituted in the then Court of First Instance of Iloilo and was
docketed as Special Proceeding No. 1736. However, while the case was still in
progress, or to be exact on February 1, 1964, the partiesAldina, Constancio,
Panfilo, and Felinoexecuted an agreement of extrajudicial settlement of Adriana's
estate. The agreement provided for the division of the estate into four equal parts
among the parties. The Malotos then presented the extrajudicial settlement
agreement to the trial court for approval which the court did on March 21, 1964.
That should have signalled the end of the controversy, but, unfortunately, it had not.
Three years later, or sometime in March 1967, Atty. Sulpicio Palma, a former
associate of Adriana's counsel, the late Atty. Eliseo Hervas, discovered a document
entitled "KATAPUSAN NGA PAGBULUT-AN (Testamento)," dated January 3,
1940, and purporting to be the last will and testament of Adriana. Atty. Palma
claimed to have found the testament, the original copy, while he was going through
some materials inside the cabinet drawer formerly used by Atty. Hervas. The
document was submitted to the office of the clerk of the Court of First Instance of
Iloilo on April 1, 1967. Incidentally, while Panfilo and Felino are still named as heirs
in the said will, Aldina and Constancio are bequeathed much bigger and more
valuable shares in the estate of Adriana than what they received by virtue of the
agreement of extrajudicial settlement they had earlier signed. The will likewise
gives devises and legacies to other parties, among them being the petitioners Asilo
de Molo, the Roman Catholic Church of Molo, and Purificacion Miraflor.
Thus, on May 24, 1967, Aldina and Constancio, joined by the other devisees and
legatees named in the will, filed in Special Proceeding No. 1736 a motion for
reconsideration and annulment of the proceedings therein and for the allowance of
the will. When the trial court denied their motion, the petitioner came to us by way
of a petition for certiorari and mandamus assailing the orders of the trial court. As
we stated earlier, we dismissed that petition and advised that a separate proceeding
for the probate of the alleged will would be the appropriate vehicle to thresh out the
matters raised by the petitioners.
3

Significantly, the appellate court while finding as inconclusive the matter on

whether or not the document or papers allegedly burned by the househelp of

Adriana, Guadalupe Maloto Vda, de Coral, upon instructions of the testatrix, was
indeed the will, contradicted itself and found that the will had been revoked. The
respondent court stated that the presence of animus revocandi in the destruction of
the will had, nevertheless, been sufficiently proven. The appellate court based its
finding on the facts that the document was not in the two safes in Adriana's
residence, by the testatrix going to the residence of Atty. Hervas to retrieve a copy of
the will left in the latter's possession, and, her seeking the services of Atty. Palma in
order to have a new will drawn up. For reasons shortly to be explained, we do not
view such facts, even considered collecti vely, as sufficient bases for the conclusion
that Adriana Maloto's will had been effectively revoked.
There is no doubt as to the testamentary capacity of the testatrix and the due
execution of the will. The heart of the case lies on the issue as to whether or not the
will was revoked by Adriana.
The provisions of the new Civil Code pertinent to the issue can be found in
Article 830.
Art. 830. No will shall be revoked except in the following cases:
1. (1)By implication of law; or
2. (2)By some will, codicil, or other writing executed as provided in case of wills; or
3. (3)By burning, tearing, cancelling, or obliterating the will with the intention of
revoking it, by the testator himself, or by some other person in his presence, and by
his express direction. If burned, torn, cancelled, or obliterated by some other person,
without the express direction of the testator, the will may still be established, and the
estate distributed in accordance therewith, if its contents, and due execution, and the
fact of its unauthorized destruction, cancellation, or obliteration are established
according to the Rules of Court. (Italics Supplied.)

It is clear that the physical act of destruction of a will, like burning in this case, does
not per se constitute an effective revocation, unless the destruction is coupled
with animus revocandi on the part of the testator. It is not imperative that the
physical destruction be done by the testator himself. It may be performed by another
person but under the express direction and in the presence of the testator. Of course,
it goes without saying that the document destroyed must be the will itself.

In this case, while animus revocandi, or the intention to revoke, may be conceded,
for that is a state of mind, yet that requisite alone would not suffice, "Animus
revocandi is only one of the necessary elements for the effective revocation of a last
will and testament. The intention to revoke must be accompanied by the overt
physical act of burning, tearing, obliterating, or cancelling the will carried out by
the testator or by another person in his presence and under his express direction.
There is paucity of evidence to show compliance with these requirements. For one,
the document or papers burned by Adriana's maid, Guadalupe, was not
satisfactorily established to be a will at all, much less the will of Adriana Maloto.
For another, the burning was not proven to have been done under the express
direction of Adriana. And then, the burning was not in herpresence. Both witnesses,
Guadalupe and Eladio, were one in stating that they were the only ones present at
the place where the stove (presumably in the kitchen) was located in which the
papers proffered as a will were burned.
The respondent appellate court in assessing the evidence presented by the
private respondents as oppositors in the trial court, concluded that the testimony of
the two witnesses who testified in favor of the will's revocation appear
"inconclusive." We share the same view. Nowhere in the records before us does it
appear that the two witnesses, Guadalupe Vda. de Corral and Eladio Itchon, both
illiterates, were unequivocably positive that the document burned was indeed
Adriana's will. Guadalupe, we think, believed that the papers she destroyed was the
will only because, according to her, Adriana told her so. Eladio, on the other hand,
obtained his information that the burned document was the will because Guadalupe
told him so, thus, his testimony on this point is double hearsay.
At this juncture, we reiterate that "(it) is an important matter of public interest
that a purported will is not denied legalization on dubious grounds. Otherwise, the
very institution of testamentary succession will be shaken to its very foundations x
x x."
4

The private respondents in their bid for the dismissal of the present action for
probate instituted by the petitioners argue that the same is already barred by res
adjudicata.They claim that this bar was brought about by the petitioners' failure to
appeal timely from the order dated November 16,1968 of the trial court in the
intestate proceeding (Special Proceeding No. 1736) denying their (petitioners')
motion to reopen the case, and their prayer to annul the previous proceedings

therein and to allow the last will and testament of the late Adriana Maloto. This is
untenable.
The doctrine of res adjudicata finds no application in the present controversy. For
a judgment to be a bar to a subsequent case, the following requisites must concur:
(1) the presence of a final former judgment; (2) the former judgment was rendered
by a court having jurisdiction over the subject matter and the parties; (3) the former
judgment is a judgment on the merits; and (4) there is, between the first and the
second action, identity of parties, of subject matter, and of cause of action. We do
not find here the presence of all the enumerated requisites.
5

For one, there is yet, strictly speaking, no final judgment rendered insofar as the
probate of Adriana Maloto's will is concerned. The decision of the trial court in
Special Proceeding No. 1736, although final, involved only the intestate settlement
of the estate of Adriana. As such, that judgment could not in any manner be
construed to be final with respect to the probate of the subsequently discovered will
of the decedent. Neither is it a judgment on the merits of the action for probate. This
is understandably so because the trial court, in the intestate proceeding, was
without jurisdiction to rule on the probate of the contested will. After all, an action
for probate, as it implies, is founded on the presence of a will and with the objective
of proving its due execution and validity, something which can not be properly done
in an intestate settlement of estate proceeding which is predicated on the
assumption that the decedent left no will. Thus, there is likewise no identity
between the cause of action in intestate proceeding and that in an action for
probate. Be that as it may, it would be remembered that it was precisely because of
our ruling in G.R. No. L-30479 that the petitioners instituted this separate action
for the probate of the late Adriana Maloto's will.
6

Hence, on these grounds alone, the position of the private respondents on this score
can not be sustained.
One last note. The private respondents point out that revocation could be
inferred from the fact that "(a) major and substantial bulk of the properties
mentioned in the will had been disposed of: while an insignificant portion of the
properties remained at the time of death (of the testatrix); and, furthermore, more
valuable properties have been acquired after the execution of the will on January 3,
1940."7 Suffice it to state here that as these additional matters raised by the private

respondents are extraneous to this special proceeding, they could only be

appropriately taken up after the will has been duly probated and a certificate of its
allowance issued.
WHEREFORE, judgment is hereby rendered REVERSING and SETTING
ASIDE the Decision dated June 7, 1985 and the Resolution dated October 22, 1986,
of the respondent Court of Appeals, and a new one ENTERED for the allowance of
Adriana Maloto's last will and testament. Costs against the private respondents.
This Decision is IMMEDIATELY EXECUTORY,
SO ORDERED.
Yap (Chairman), Melencio-Herrera, and Paras JJ.,concur.
Padilla, J., no part in the deliberation.
Judgment reversed and set aside.
Notes.Under Article 1056 of the Civil Code of 1899 which governs this case a
person during his lifetime may partition his property among his heirs take effect
after his death and this deed is neither a will or a donation. (Mang-oy vs. Court of
Appeals, 144 SCRA 33.)
Rights to inheritance of a person who died after the New Civil Code took effect
shall be governed by said Code. (Yap vs. Court of Appeals, 145 SCRA 229.)
o0o

[No. L-2538. September 21, 1951]

Testate Estate of the Deceased MARIANO MOLO Y LEGASPI. JUANA JUAN VDA.
DE MOLO, petitioner and appellee, vs. Luz, GLICERIA and CORNELIO MOLO,
oppositors and appellants.
1. 1.WILLS; REVOCATION
BY
SUBSEQUENT
WILL;EFFECT
OF
VOID
REVOCATORY CLAUSE.A subsequent will containing a clause revoking a
previous will, having been disallowed for the reason that it was not executed in
conformity with the provisions of section 618 of the Code of Civil Procedure as to
the making of wills, cannot produce the effect of annuling the previous will,
inasmuch as said revocatory clause is void (Samson vs.Naval, 41 Phil., 838).
1. 2.ID.; PROBATE; DEPENDENT RELATIVE REVOCATION.Even in the
supposition that the destruction of the original will by the testator could be
presumed from the failure of the petitioner to produce it in court, such destruction
cannot have the effect of defeating the prior will where it is founded on the
mistaken belief that the later will has been validly executed and would be given due
effect. The earlier will can still be admitted to probate under the principle of
"dependent relative revocation". The theory on which this principle is predicated is
that the testator did not intend to die intestate. And this intention is clearly
manifest where he executed two wills on two different occasions and instituted his
wife as his universal heir.

APPEAL from an order of the Court of First Instance of Rizal. Tan, J.

The facts are stated in the opinion of the Court.

Claro M. Recto and Serafin C. Dizon for appellants.

Delgado & Flores for appellee.
BAUTISTA ANGELO, J.:
This is an appeal from an order of the Court of First Instance of Rizal admitting to
probate the last will and testament of the deceased Mariano Molo y Legaspi
executed on August 17, 1918. The oppositors-appellants brought the case on appeal
to this Court for the reason that the value of the properties involved exceeds
P50,000.
Mariano Molo y Legaspi died on January 24, 1941, in the municipality of Pasay,
province of Rizal, without leaving any forced heir either in the descending or
ascending line. He was survived, however, by his wife, the herein petitioner Juana
Juan Vda. de Molo, and by his nieces and nephew, the oppositors-appellants, Luz,
Gliceria and Cornelio, all surnamed Molo, who were the legitimate children of
Candido Molo y Legaspi, deceased brother of the testator. Mariano Molo y Legaspi
left two wills, one executed on August 17, 1918, (Exhibit A) and another executed on
June 20, 1939, (Exhibit I). The latter will contains a clause which expressly revokes
the will executed in 1918.
On February 7, 1941, Juana Juan Vda. de Molo filed in the Court of First
Instance of Rizal a petition, which was docketed as special proceeding No. 8022,
seeking the probate of the will executed by the deceased on June 20, 1939.
There being no opposition, the will was probated. However, upon petition filed by
the herein oppositors, the order of the court admitting the will to probate was set
aside and the case was reopened. After hearing, at which both parties presented
their evidence, the court rendered decision denying the probate of said will on the
ground that the petitioner failed to prove that the same was executed in accordance
with law.
In view of the disallowance of the will executed on June 20, 1939, the widow on
February 24, 1944, filed another petition f or the probate of the will executed by the
deceased on August 17, 1918, which was docketed as special proceeding No. 56, in
the same court. Again, the same oppositors filed an opposition to the petition based
on three grounds: (1) that petitioner is now estopped from seeking the probate of the

will of 1918; (2) that said will has not been executed in the manner required by law
and (3) that the will has been subsequently revoked. But before the second petition
could be heard, the battle for liberation came and the records of the case were
destroyed. Consequently, a petition for reconstitution was filed, but the same was
found to be impossible because neither petitioner nor oppositors could produce the
copies required for its reconstitution. As a result, petitioner filed a new petition on
September 14, 1946, similar to the one destroyed, to which the oppositors filed an
opposition based on the same grounds as those contained in their former opposition.
Then, the case was set for trial, and on May 28, 1948, the court issued an order
admitting the will to probate as already stated in the early part of this decision.
From this order the oppositors appealed assigning six errors, to wit:
1. "I.The probate court erred in not holding that the present petitioner voluntarily and
deliberately frustrated the probate of the will dated June 20, 1939, in special
proceeding No, 8022, in order to enable her to obtain the probate of another alleged
will of Molo dated 1918.
2. "II.The court a quo erred in not holding that the petitioner is now estopped from
seeking the probate of Molo's alleged will of 1918.

1. "III.The lower court erred in not holding that petitioner herein has come to court
with 'unclean hands' and as such is not entitled to relief.

2. "IV.The probate court erred in not holding that Molo's alleged will of August 17, 1918
was not executed in the manner required by law.
3. "V.The probate court erred in not holding that the alleged will of 1918 was
deliberately revoked by Molo himself.
4. "VI.The lower court erred in not holding that Molo's will of 1918 was subsequently
revoked by the decedent's will of 1939."

In their first assignment of error, counsel for oppositors contend that the probate
court erred in not holding that the petitioner voluntarily and deliberately frustrated
the probate of the will dated June 20, 1939, in order to enable her to obtain the
probate of the will executed by the deceased on August 17, 1918, pointing out
certain facts and circumstances which in their opinion indicate that petitioner
connived with witness Canuto Perez in an effort to defeat and frustrate the probate
of the 1939 will because of her knowledge that said will was intrinsically defective in

that "the one and only testamentary disposition thereof was a 'disposicin
captatoria' ". These circumstances, counsel for the appellants contend, constitute a
series of steps deliberately taken by petitioner with a view to insuring the
realization of her plan of securing the probate of the 1918 will which she believed
would better safeguard her right to inherit from the deceased.
These imputations of fraud and bad faith allegedly committed in connection with
special proceedings No. 8022, now closed and terminated, are vigorously met by
counsel for petitioner who contends that to raise them in these proceedings which
are entirely new and distinct and completely independent from the other is improper
and unfair as they find no support whatsoever in any evidence submitted by the
parties in this case. They are merely based on presumptions and conjectures not
supported by any proof. For this reason, counsel contends, the lower court was
justified in disregarding them and in passing them sub silentio in its decision.
A careful examination of the evidence available in this case seems to justify this
contention. There is indeed no evidence which may justify the insinuation that
petitioner had deliberately intended to frustrate the probate of the 1939 will of the
deceased to enable her to seek the probate of another will other than a mere
conjecture drawn from the apparently unexpected testimony of Canuto Perez that
he went out of the room to answer an urgent call of nature when Artemio Reyes was
signing the will and the failure of petitioner later to impeach the character of said
witness in spite of the opportunity given her by the court to do so. Apart from this
insufficiency of evidence, the record discloses that this failure has been explained by
petitioner when she informed the court that she was unable to impeach the
character of her witness Canuto Perez because of her inability to find witnesses who
may impeach him, and this explanation stands uncontradicted. Whether this
explanation is satisfactory or not, it is not now for us to determine. It is an incident
that comes within the province of the former case. The failure of petitioner to
present the testimony of Artemio Reyes at the rehearing has also been explained,
and it appears that petitioner has failed because his whereabouts could not be
found. Whether this is true or not is not also for this Court to determine. It is
likewise within the province and function of the court in the former case. And the
unfairness of this imputation becomes more glaring when we take stock of the
developments that had taken place in these proceedings which show in bold relief
the true nature of the conduct, behavior and character of the petitioner so bitterly
assailed and held in disrepute by the oppositors.

It should be recalled that the first petition f or the probate of the will executed on
June 20, 1939, was filed on February 7, 1941, by the petitioner. There being no
opposition, the will was probated. Subsequently, however, upon petition of the
herein oppositors, the order of the court admitting said will to probate was set aside,
over the vigorous opposition of the herein petitioner, and the case was reopened. The
reopening was ordered because of the strong opposition of the oppositors who
contended that the will had not been executed as required by law. After the evidence
of both parties had been presented, the oppositors filed an extensive memorandum
wherein they reiterated their view that the will should be denied probate. And on
the strength of this opposition, the court disallowed the will.
If petitioner then knew that the 1939 will was inherently defective and would
make the testamentary disposition in her favor invalid and ineffective, because it is
a "disposicin captatoria", which knowledge she may easily acquire through
consultation with a lawyer, there was no need for her to go through the ordeal of
filing the petition for the probate of the will. She could accomplish her desire by
merely suppressing the will or tearing or destroying it, and then take steps leading
to the probate of the will executed in 1918. But her conscience was clear and bade
her to take the only proper step possible under the circumstances, which is to
institute the necessary proceedings for the probate of the 1939 will. This she did
and the will was admitted to probate. But then the unexpected happened. Over her
vigorous opposition, the herein appellants filed a petition for reopening, and over
her vigorous objection, the same was granted and the case was reopened. Her
motion for reconsideration was denied. Is it her fault that the case was reopened? Is
it her fault that the order admitting the will to probate was set aside? That was a
contingency which petitioner never expected. Had appellants not filed their
opposition to the probate of the will and had they limited their objection to the
intrinsic validity of said will, their plan to defeat the will and secure the intestacy of
the deceased would have perhaps been accomplished. But they failed in their
strategy. If said will was denied probate it is due to their own effort. It is now unfair
to impute bad faith to petitioner simply because she exerted every effort to protect
her own interest and prevent the intestacy of the deceased to happen.
Having reached the foregoing conclusions, it is obvious that the court did not
commit the second and third errors imputed to it by the counsel for appellants.
Indeed, petitioner cannot be considered guilty of estoppel which would prevent her
from seeking the probate of the 1918 will simply because her effort to obtain the

allowance of the 1939 will has failed considering that in both the 1918 and 1939
wills she was instituted by her husband as his universal heir. Nor can she be
charged with bad faith far having done so because of her desire to prevent the
intestacy of her husband. She cannot be blamed for being zealous in protecting her
interest.
The next contention of appellants refers to the revocatory clause contained in the
1939 will of the deceased which was denied probate. They contend that,
notwithstanding the disallowance of said will, the revocatory clause is valid and still
has the effect of nullifying the prior will of 1918. Counsel for petitioner meets this
argument by invoking the doctrine laid down in the case of Samson vs. Naval, (41
Phil., 838). He contends that the facts involved in that case are on all fours with the
facts of this case. Hence, the doctrine in that case is here controlling.
There is merit in this contention. We have carefully read the facts involved in the
Samson case and we are indeed impressed by their striking similarity with the facts
of this case. We do not need to recite here what those facts are; it is enough to point
out that they contain many points and circumstances in common. No reason,
therefore, is seen why the doctrine laid down in that case (which we quote
hereunder) should not apply and control the present case.
"A subsequent will, containing a clause revoking a previous will, having been disallowed, for
the reason that it was not executed in conformity with the provisions of section 618 of the
Code of Civil Procedure as to the making of wills, cannot produce the effect of annulling the
previous will, inasmuch as said revocatory clause is void." (41 Phil., 838.)

Apropos of this question, counsel for oppositors make the remark that, while they do
not disagree with the soundness of the ruling laid down in the Samson case, there is
reason to abandon said ruling because it is archaic or antiquated and runs counter
to the modern trend prevailing in American jurisprudence. They maintain that said
ruling is no longer controlling but merely represents the point of view of the
minority and should, therefore, be abandoned, more so if we consider the fact that
section 623 of our Code of Civil Procedure, which governs the revocation of wills, is
of American origin and as such should follow the prevailing trend of the majority
view in the United States. A long line of authorities is cited in support of this
contention. And these authorities hold the view, that "an express revocation is
immediately effective upon the execution of the subsequent will, and does not

require that it first undergo the formality of a probate proceeding". (p. 63,
appellants' brief).
While there are many cases which uphold the view entertained by counsel for
oppositors, and that view appears to be controlling in the states where the decisions
had been promulgated, however, we are reluctant to fall in line with the assertion
that that is now the prevailing view in the United States. In the search we have
made of American authorities on the subject, we found ourselves in a pool of
conflicting opinions perhaps because of the peculiar provisions contained in the
statutes adopted by each State on the subject of revocation of wills. But the
impression we gathered from a review and study of the pertinent authorities is that
the doctrine laid down in the Samson case is still a good law. On page 328 of the
American Jurisprudence, Vol. 57, which is a revision published in 1948, we found
the following passages which in our opinion truly reflect the present trend of
American jurisprudence on this matter affecting the revocation of prior wills:
"SEC. 471. Observance of Formalities in Execution of Instrument.Ordinarily, statutes
which permit the revocation of a will by another writing provide that to be effective as a
revocation, the writing must be executed with the same formalities which are required to be
observed in the execution of a will. Accordingly, where, under the statutes, attestation is
necessary to the making of a valid will, an unattested nontestamentary writing is not
effective to revoke a prior will. It has been held that a writing fails as a revoking instrument
where it is not executed with the formalities requisite for the execution of a will, even
though it is inscribed on the will itself, although it may effect a revocation by cancellation or
obliteration of the words of the will. A testator cannot reserve to himself the power to
modify a will by a written instrument subsequently prepared but not executed in the
manner required for a will.
"SEC. 472. Subsequent Unexecuted, Invalid, or Ineffective Will or Codicil.A will which
is invalid because of the incapacity of the testator or of undue influence can have no effect
whatever as a revoking will. Moreover, a will is not revoked by the unexecuted draft of a
later one. Nor is a will revoked by a defectively executed will or codicil, even though the
latter contains a clause expressly revoking the former will, in a jurisdiction where it is
provided by a controlling statute that no writing other than a testamentary instrument is
sufficient to revoke a will, for the simple reason that there is no revoking will. Similarly
where the statute provides that a will may be revoked by a subsequent will or other writing
executed with the same formalities as are required in the execution of wills, a defectively
executed will does not revoke a prior will, since it cannot be said that there is a writing
which complies with the statute. Moreover, a will or codicil which, on account of the manner

in which it is executed, is sufficient to pass only personally does not affect dispositions of
real estate made by a former will, even though it may expressly purport to do so. The intent
of the testator to revoke is immaterial, if he has not complied with the statute." (57 Am.
Jur., 328, 329.)

We find the same opinion in the American Law Reports, Annotated, edited in 1939.
On page 1400, Volume 123, there appear many authorities on the "application of
rules where second will is invalid", among which a typical one is the following:
"It is universally agreed that where the second will is invalid on account of not being
executed in accordance with the provisions of the statute, or where the testator has not
sufficient mental capacity to make a will or the will is procured through undue influence, or
the such, in other words, where the second will is really no will, it does not revoke the first
will or affect it in any manner." Mortvs. Baker University (1935) 229 Mo. App., 632, 78 S. W.
(2d), 498."

These treaties cannot be mistaken. They uphold the view on which the ruling in the
Samson case is predicated. They reflect the opinion that this ruling is sound and
good and for this reason we see no justification for abandoning it as now suggested
by counsel for the oppositors.
It is true that our law on the matter (sec. 623, Code of Civil Procedure) provides
that a will may be revoked "by some will, codicil, or other writing executed as
provided in case of wills"; but it cannot be said that the 1939 will should be
regarded, not as a will within the meaning of said word, but as "other writing
executed as provided in the case of wills", simply because it was denied probate. And
even if it be regarded as any other writing within the meaning of said clause, there
is authority for holding that unless said writing is admitted to probate, it cannot
have the effect of revocation. (See 57 Am. Jur. pp. 329-330).
But counsel for oppositors contend that, regardless of said revocatory clause, said
will of 1918 cannot still be given effect because of the presumption that it was
deliberately revoked by the testator himself. The oppositors contend that the
testator, after executing the 1939 will, and with full knowledge of the revocatory
clause contained in said will, himself deliberately destroyed the original of the 1918
will, and that for this reason the will submitted by petitioner for probate in these
proceedings is only a duplicate of said original.

There is no evidence which may directly indicate that the testator deliberately
destroyed the original of the 1918 will because of his knowledge of the revocatory
clause contained in the will he executed in 1939. The only evidence we have is that
when the first will was executed in 1918, Juan Salcedo, who prepared it, gave the
original and copies to the testator himself and apparently they remained inhis
possession until he executed his second will in 1939. And when the 1939 will was
denied probate on November 29, 1943, and petitioner was asked by her attorney to
look for another will, she found the duplicate copy (Exhibit A) among the papers or
files of the testator. She did not find the original.
If it can be inferred that the testator deliberately destroyed the 1918 will because
of his knowledge of the revocatory clause of the 1939 will, and it is true that he gave
a duplicate copy thereof to his wife, the herein petitioner, the most logical step for
the testator to take is to recall said duplicate copy in order that it may likewise be
destroyed. But this was not done as shown by the fact that said duplicate copy
remained in the possession of petitioner. It is possible that because of the long lapse
of twenty-one (21) years since the first will was executed, the original of the will had
been misplaced or lost, and forgetting that there was a copy, the testator deemed it
wise to execute another will containing exactly the same testamentary dispositions.
Whatever may be the conclusion we may draw from this chain of circumstances, the
stubborn fact is that there is no direct evidence of voluntary or deliberate
destruction of the first will by the testator. This matter cannot be left to mere
inference or conjecture.
Granting for the sake of argument that the earlier will was voluntarily destroyed
by the testator after the execution of the second will, which revoked the first, could
there be any doubt, under this theory, that said earlier will was destroyed by the
testator in the honest belief that it was no longer necessary because he had
expressly revoked it in his will of 1939? In other words, can we not say that the
destruction of the earlier will was but the necessary consequence of the testator's
belief that the revocatory clause contained in the subsequent will was valid and the
latter would be given effect? If such is the case, then it is our opinion that the earlier
will can still be admitted to probate under the principle of "dependent relative
revocation".
"This doctrine is known as that of dependent relative revocation, and is usually applied
where the testator cancels or destroys a will or executes an instrument intended to revoke a

will with a present intention to make a new testamentary disposition as a substitute for the
old, and the new disposition is not made or, if made, fails of effect for some reason. The
doctrine is not limited to the existence of some other document, however, and has been
applied where a will was destroyed as a consequence of a mistake of law * * *." (68 C. J. p.
799).
"The rule is established that where the act of destruction is connected with the making
of another will so as fairly to raise the inference that the testator meant the revocation of
the old to depend upon the efficacy of the new disposition intended to be substituted, the
revocation will be conditional and dependent upon the efficacy of the new disposition; and if,
for any reason, the new will intended to be made as a substitute is inoperative, the
revocation fails and the original will remains in full force." (Gardner, pp. 232, 233.)
"This is the doctrine of dependent relative revocation. The failure of the new
testamentary disposition, upon whose validity the revocation depends, is equivalent to the
non-fulfillment of a suspensive condition, and hence prevents the revocation of the original
will. But a mere intent to make at some time a will in place of that destroyed will not
render the destruction conditional. It must appear that the revocation is dependent upon
the valid execution of a new will." (1 Alexander, p. 751; Gardner, p. 233.)

We hold, therefore, that even in the supposition that the destruction of the original
will by the testator could be presumed from the failure of the petitioner to produce it
in court, such destruction cannot have the effect of defeating the prior will of 1918
because of the fact that it is founded on the mistaken belief that the will of 1939 has
been validly executed and would be given due effect. The theory on which this
principle is predicated is that the testator did not intend to die intestate. And this
intention is clearly manifest when he executed two wills on. two different occasions
and instituted his wife as his universal heir. There can therefore be no mistake as to
his intention of dying testate.
The remaining question to be determined refers to the sufficiency of the evidence
to prove the due execution of the will.
The will in question was attested, as required by law, by three witnesses, Lorenzo
Morales, Rufino Enriquez, and Angel Cuenca. The first two witnesses died before
the commencement of the present proceedings. So the only instrumental witness
available was Angel Cuenca and under our law and precedents, his testimony is
sufficient to prove the due execution of the will. However, petitioner presented not
only the testimony of Cuenca but placed on the witness stand Juan Salcedo, the

notary public who prepared and notarized the will upon the express desire and
instruction of the testator. The testimony of these witnesses shows that the will had
been executed in the manner required by law. We have read their testimony and we
were impressed by their readiness and sincerity. We are convinced that they told the
truth.
Wherefore, the order appealed from is hereby affirmed, with costs against the
appellants.
Pars, C. J., Feria, Pablo, Bengzon, Tuason, and Jugo, JJ., concur.
Reyes, J., concurs in the result.
Order affirmed.

[No. 17714. May 31, 1922]

In the matter of the estate of Jesus de Leon. IGNACIA DIAZ, petitioner and
appellant, vs. ANA DE LEON, opponent and appellee.
WILLS; REVOCATION; "ANIMO REVOCANDI."According to the statute
governing the subject in this jurisdiction the destruction animo revocandi of a will
constitutes, in itself, a sufficient revocation. (Sec. 623, Code of Civil Procedure.) The
original will herein presented for probate having been destroyed animo revocandi, cannot
be declared the will and last testament of the testator.

APPEAL from a judgment of the Court of First Instance of Iloilo. Camus, J.

The facts are stated in the opinion of the court.
Montinola, Montinola & Hontiveros and Jose Lopez Vito for appellant.
Francisco A. Delgado, Powell & Hill and Padilla & Trenas for appellee.
ROMUALDEZ, J.:
The only question raised in this case is whether or not the will executed by Jesus de
Leon, now deceased, was revoked by him.

The petitioner denies such revocation, while the contestant affirms the same by
alleging that the testator revoked his will by destroying it, and by executing another
will expressly revoking the former.
We find that the second will Exhibit 1 executed by the deceased is not clothed
with all the necessary rSquisites to constitute a sufficient revocation.
But according to the statute governing the subject in this jurisdiction, the
destruction of a will with animo revocandi constitutes, in itself, a sufficient
revocation. (Sec. 623, Code of Civil Procedure.)
From the evidence submitted in this case, it appears that the testator, shortly
after the execution cution of the first will in question, asked that the same be
returned to him. The instrument was returned to the testator who ordered his
servant to tear the document. This was done in his presence and before a nurse who
testified to this effect. After some time, the testator, being asked by Dr. Cornelio
Mapa about the will, said that it had been destroyed.
The intention of revoking the will is manifest from the established fact that the
testator was anxious to withdraw or change the provisions he h&d made in his first
will. This fact is disclosed by the testator's own statements to the witnesses Canto
and the Mother Superior of the Hospital where he was confined.
The original will herein presented for probate having been destroyed with animo
revocandi, cannot now be probated as the will and last testament of Jesus de Leon.
Judgment is affirmed with costs against the petitioner. So ordered.
Araullo, C. J., Malcolm, Avancea, Ostrand, andJohns, JJ., concur.
Villamor, J., did not take part.
Judgment affirmed.

[No. 38050. September 22, 1933]

In the matter of the will of Donata Manahan. TIBURCIA MANAHAN, petitioner

and appellee, vs. ENGRACIA MANAHAN, opponent and appellant.
1. 1.WILL; PROBATE OF WILL.The appellant was not entitled to notification of the
order admitting the will to probate, inasmuch as she was not an interested party,
not having filed an opposition to the petition for the probate thereof. Her allegation
that she had the status of an heir, being the decedent's sister, did not confer upon
her the right to be notified in view of the fact that the testatrix died leaving a will
in which the appellant has not been instituted heir. Furthermore, not being a forced
heir, she did not acquire any successional right.
1. 2.ID. ; ID. ; AUTHENTICATION AND PROBATE.In the phraseology of the
procedural law there is no essential difference between the authentication of a will
and the probate thereof. The words authentication and probate are synonymous in
this case. All the law requires is that the competent court declare that in the
execution of the will the essential external formalities have been complied with and
that, in view thereof, the document, as a will, is valid and effective in the eyes of the
law.
1. 3.ID. ; ID. ; CONCLUSIVE CHARACTER OF THE DECREE OF PROBATE.The
decree admitting a will to probate is conclusive -with respect to the due execution
thereof and it cannot be impugned on any of the grounds authorized by law, except
that of a fraud, in any separate or independent action or proceeding.
1. 4.ID. ; ID. ; PROCEEDINGS "!N REM".The proceedings followed in a
testamentary case being in rem, the decree admitting the will to probate was
effective and conclusive against the appellant, in accordance with section 306 of the
Code of Civil Procedure.
1. 5.ID. ; ID. ; INTERLOCUTORY ORDER.The appellant could not appeal from the
trial court's order denying her motion for reconsideration and a new trial in view of
the fact that said order was interlocutory in character.

APPEAL from an order of the Court of First Instance of Bulacan. Lesaca, J.

The facts are stated in the opinion of the court.
J. Fernando Rodrigo for appellant.
Heraclio H. del Pilar for appellee.

IMPERIAL, J.:
This is an appeal taken by the appellant herein, Engracia Manahan, from the order
of the Court of First Instance of Bulacan dated July 1, 1932, in the matter of the
will of the deceased Donata Manahan, special proceedings No. 4162, denying her
motion for reconsideration and new trial filed on May 11, 1932.
The facts in the case are as follows:
On August 29, 1930, Tiburcia Manahan instituted special proceedings No. 4162,
for the probate of the will of the deceased Donata Manahan, who died in Bulacan,
Province of Bulacan, on August 3, 1930. The petitioner herein, niece of the testatrix,
was named the executrix in said will. The court set the date for the hearing and the
necessary notice required by law was accordingly published. On the day of the
hearing of the petition, no opposition thereto was filed and, after the evidence was
presented, the court entered the decree admitting the will to probate as prayed for.
The will was probated on September 22, 1930. The trial court appointed the herein
petitioner executrix with a bond of P1,000, and likewise appointed the committee on
claims and appraisal, whereupon the testamentary proceedings followed the usual
course. One year and seven months later, that is, on May 11, 1932, to be exact, the
appellant herein filed a motion for reconsideration and a new trial, praying that the
order admitting the will to probate be vacated and the authenticated will declared
null and void ab initio. The appellee herein, naturally filed her opposition to the
petition and, after the corresponding hearing thereof, the trial court entered its
order of denial on July 1, 1932. Engracia Manahan, under the pretext of appealing
from this last order, likewise appealed from the judgment admitting the will to
probate.
In this instance, the appellant assigns seven (7) alleged errors as committed by
the trial court. Instead of discussing them one by one, we believe that, essentially,
her claim narrows down to the following: (1) That she was an interested party in the
testamentary proceedings and, as such, was entitled to and should have been
notified of the probate of the will; (2) that the court, in its order of September 22,
1930, did not really probate the will but limited itself to decreeing its
authentication; and (3) that the will is null and void ab initio on the ground that the
external formalities prescribed by the Code of Civil Procedure have not been
complied with in the execution thereof.

The appellant's first contention is obviously unfounded and untenable. She was
not entitled to notification of the probate of the will and neither had she the right to
expect it, inasmuch as she was not an interested party, not having filed an
opposition to the petition for the probate thereof.
Her allegation that she had the status of an heir, being the deceased's sister, did not
confer on her the right to be notified on the ground that the testatrix died leaving a
will in which the appellant has not been instituted heir. Furthermore, not being a
forced heir, she did not acquire any successional right.
The second contention is puerile. The court really decreed the authentication and
probate of the will in question, which is the only pronouncement required of the
trial court by the law in order that the will may be considered valid and duly
executed in accordance with the law. In the phraseology of the procedural law, there
is no essential difference between the authentication of a will and the probate
thereof. The words authentication and probate are synonymous in this case. All the
law requires is that the competent court declare that in the execution of the will the
essential external formalities have been complied with and that, in view thereof, the
document, as a will, is valid and effective in the eyes of the law.
The last contention of the appellant may be refuted merely by stating that, once a
will has been authenticated and admitted to probate, questions relative to the
validity thereof can no more be raised on appeal. The decree of probate is conclusive
with respect to the due execution thereof and it cannot be impugned on any of the
grounds authorized by law, except that of fraud, in any separate or independent
action or proceeding (sec. 625, Code of Civil Procedure; Castaeda vs. Alemany, 3
Phil., 426; Pimentelvs. Palanca, 5 Phil., 436; Sahagun vs. De Gorostiza, 7 Phil.,
347; Limjuco vs. Ganara, 11 Phil., 393; Montaano vs.Suesa, 14 Phil., 676; In
re Estate
of
Johnson, 39
Phil.,
156;Riera vs. Palmaroli, 40
Phil.,
105; Austria vs. Ventenilla,21
Phil.,
180; Ramirez vs. Gmur, 42
Phil.,
855;
and Chiong Joc-Soy vs. Vao, 8 Phil., 119).
But there is another reason which prevents the appellant herein from
successfully maintaining the present action and it is that inasmuch as the
proceedings followed in a testamentary case are in rem, the trial court's decree
admitting the will to probate was effective and conclusive against her, in accordance

with the provisions of 'section 306 of the said Code of Civil Procedure which reads as
follows:
"SEC. 306. EFFECT OF JUDGMENT.* * *.
"1. In case of a judgment or order against a specific thing, or in respect to the
probate of a will, or the administration of the estate of a deceased person, or in
respect to the personal, political, or legal condition or relation of a particular person,
the judgment or order is conclusive upon the title of the thing, the will or
administration, or the condition or relation of the person:Provided, That the probate
of a will or granting of letters of administration shall only be prima facie evidence of
the death of the testator or intestate; * * *."
On the other hand, we are at a loss to understand how it was possible for the
herein appellant to appeal from the order of the trial court denying her motion for
reconsideration and a new trial, which is interlocutory in character. In view of this
erroneous interpretation, she' succeeded in appealing indirectly from the order
admitting the will to probate which was entered one year and seven months ago.
Before closing, we wish to state that it is not timely to discuss herein the validity
and sufficiency of the execution of the will in question. As we have already said, this
question can no more be raised in this case on appeal. After due hearing, the court
found that the will in question was valid and effective and the order admitting it to
probate, thus promulgated, should be accepted and respected by all. The probate of
the will in question now constitutes res judicata.
Wherefore, the appeal taken herein is hereby dismissed, with costs against the appellant. So
ordered.
Avancea, C. J., Malcolm, Villa-Real, and Hull, JJ.,concur.
Appeal dismissed.

No. L-29300. June 21, 1978.*

PEDRO

D.

H.

GALLANOSA,

CORAZON

GRECIA-GALLONOSA

and

ADOLFO FORTAJADA, the deceased Pedro Gallanosa being substituted by

his legal heirs, namely, his above-named widow and his children, ISIDRO

GALLANOSA and LEDY GALLANOSA, and grandchildren named IMELDA

TECLA GALLANOSA and ROSARIO BRIGIDA GALLANOSA, children of

the late SIKATUNA GALLANOSA. son of Pedro D.H. GALLONOSA,

petitioners, vs. HON. UBALDO Y. ARCANGEL, Judge of Branch I of the
Court of First Instance of Sorsogon and FLORENTINO G. HITOSIS,
CASIANO G. HITOSIS, TEOTIMO G. HITOSIS, VICTORIO G. HITOSIS,
EMILIA G. HITOSIS VDA. DE CRUZ, JOAQUIN R. HITOSIS VDA. DE

CRUZ, JOAQUIN R. HITOSIS, FLORENTINO R. HITOSIS, VIRGINIA R.

HITOSIS, DEBORAH R. HITOSIS, EDILBERTO R. HITOSIS, LEONOR R.

HITOSIS, NORMA R. HITOSIS-VILLANUEVA, LEONCIO R. HITOSIS,

minors ANGEL R. HITOSIS and RODOLFO R. HITOSIS, represented by

their legal guardian and mother LOURDES RELUCIO VDA. DE HITOSIS,
PETRONA

HITOSISBALBIDO,

MODESTO

HITOSIS-GACILO,

CLETO

HITOSIS, AGUSTIN HITOSIS-FORTES, TOMASA HITOSIS-BANARES VDA.

DE BORRAS, CONRADA HITOSIS-BANARES FRANCHE, RESTITUTO
HITOSISBANARES,

DAMIAN

HITOSIS-BANARES,

FIDEL

HITOSIS-

BANARES, SUSANA HITOSIS-BANARES RODRIGUEZ, JOSE HITOSIS,

LOLITA HITOSISBANEGA. minors MILAGROS HITOSIS-BANEGA, ALICIA
HITOSIS-BANEGA AND ELISA HITOSISBANEGA, represented by their
legal guardian and father ERNESTO BANEGA, FELICITAS HITOSISPENAFLOR,
PEDRO

GENOVEVA

HITOSIS,

HITOSIS-ADRIATICO,

LIBRATA

HITOSIS-BALMES,

MANUEL

HITOSIS,

JUANITA

HITOSIS-

GABITO VDA. DE GABAS, MAURA HITOSIS-GABITO VDA. DE GANOLA

and LEONAHITOSIS-GABITO GAMBA, respondents.

Settlement of Estate; Wills; Res Judicata; Prescription; An action instituted in 1967 for
the annulment of a last will and testament duly probated way back in 1939 will not prosper.
What the plaintiffs seek is the annulment of a last will and testament duly probated in
1939 by the lower court itself. The proceeding is coupled with an action to recover the lands
adjudicated to the defendants by the same court in 1943 by virtue of the probated will,
which action is a resuscitation of the complaint of the same parties that the same court
dismissed in 1952. It is evident from the allegations of the complaint and from defendants
motion to dismiss that plaintiffs 1967 action is barred by res judicata, a double-barrelled
defense, and by prescription, acquisitive and extinctive, or by what are known in the jus
civile and the jus gentium as usucapio, longi temporis possesio and praescriptio (See Ramos
vs. Ramos, L-19872, December 3, 1974 61 SCRA 284).

Same; Same; Pleadings and Practice. The Rules of Court does not sanction an action
for annulment of a will.Our procedural law does not sanction an action for the
annulment of a will. In order that a will may take effect, it has to be probated, legalized or
allowed in the proper testamentary proceeding. The probate of the will is mandatory (Art.
838, Civil Code; sec. 1, Rule 75, formerly sec. 1, Rule 76, Rules of Court; Guevara vs.
Guevara, 74 Phil. 479; Guevara vs. Guevara, 98 Phil. 249). The testamentary proceeding is
a special proceeding for settlement of the testators estate. A special proceeding is distinct
and different from an ordinary action (Secs. 1 and 2, Rule 2 and sec. 1, Rule 72. Rules of
Court).
Same; Same; Res Judicata; Consequences of due probate of a will.The 1939 decree of
probate is conclusive as to the due execution or formal validity of the will (Sec. 625, Act 190,
sec. 1, Rule 76, now sec. 1, Rule 75, Rules of Court; Last par. of art. 828, Civil Code). That
means that the testator was of sound and disposing mind at the time when he executed the
will and was not acting under duress, menace, fraud, or undue influence; that the will was
signed by him in the presence of the required number of witnesses, and that the will is
genuine and is not a forgery. Accordingly, these facts cannot again be questioned in a
subsequent proceeding, not even in a criminal action for the forgery of the will. (3 Morans
Comments on the Rules of Court, 1970 Edition, p. 395; Manahan vs. Manahan, 58 Phil.
448). After the finality of the allowance of a will, the issue as to the voluntariness of its
execution cannot be raised anymore (Santos vs. De Buenaventura, L-22797, September 22,
1966, 18 SCRA 47).
Same; Same; Same; Decree of adjudication in a testate proceeding is binding on the
whole world.On the other hand, the 1943 decree of adjudication rendered by the trial
court in the testate proceeding for the settlement of the estate of Florentino Hitosis, having
been rendered in a proceeding in rem, is, under the abovequoted section 49(a), binding upon
the whole world (Manalo vs. Paredes, 47 Phil. 938; In re Estate of Johnson, 39 Phil. 156; De
la Cerha vs. Potot, 120 Phil. 1361, 1364; McMaster vs. Henry Reissmann & Co., 68 Phil.
142).
Same; Same; Same; Judgment; Grounds for annulment of judgment after period for
filing petition for relief expires.After the period for seeking relief from a final order or
judgment under Rule 38 of the Rules of Court has expired, a final judgment or order can be
set aside only on the grounds of (a) lack of jurisdiction or lack of due process of law or (b)
that the judgment was obtained by means of extrinsic or collateral fraud. In the latter case,
the period for annulling the judgment is four years from the discovery of the fraud (2
Morans Comments on the Rules of Court, 1970 Edition, pp. 245-246; Mauricio vs.
Villanueva, 106 Phil. 1159).

Same; Same; Contracts; Prescription; The Civil Law rule that an action for declaration
of inexistence of a contract does not prescribe cannot be applied to last wills and testaments.
To hurdle over the obstacle of prescription, the trial court, naively adopting the theory of
plaintiffs counsel, held that the action for the recovery of the lands had not prescribed
because the rule in Article 1410 of the Civil Code, that the action or defense for the
declaration of the inexistence of a contract does not prescribe, applies to wills. That ruling
is a glaring error. Article 1410 cannot possibly apply to last wills and testaments.

ORIGINAL ACTION in the Supreme Court. Certiorari with preliminary injunction.

The facts are stated in the opinion of the Court.
Haile Frivaldo for petitioners.
Joaquin R. Hitosis for private respondents.
AQUINO, J.:
In this special civil action of certiorari, filed on July 29, 1968, the petitioners seek
to annul the orders of respondent Judge dated May 3 and June 17, 1968, wherein he
reconsidered his order of January 10, 1968, dismissing, on the ground of
prescription, the complaint in Civil Case No. 2233 of the Court of First Instance of
Sorsogon.
The case involves the sixty-one parcels of land in Sorsogon left by Florentino
Hitosis, with an estimated value of P50,000, and claims for damages exceeding one
million pesos. The undisputed facts are as follows:
1.Florentino Hitosis executed a will in the Bicol dialect on June 19, 1938 when he
was eighty years old. He died on May 26, 1939 at Irosin, Sorsogon. A childless
widower, he as survived by his brother, Leon Hitosis. His other brothers, named
Juan, Tito (Juancito), Leoncio (Aloncio) and Apolonio and only sister, Teodora, were
all dead.
2.On June 24, 1939 a petition for the probate of his will was filed in the Court of
First Instance of Sorsogon (Special Proceeding No. 3171). The notice of hearing was
duly published. In that will, Florentino bequeathed his one-half share in the
conjugal estate to his second wife, Tecla Dollentas, and, should Tecla predecease
him, as was the case, his one-half share would be assigned to the spouses Pedro

Gallanosa and Corazon Grecia, the reason being that Pedro, Teclas son by her first
marriage, grew up under the care of Florentino; he had treated Pedro as his foster
child, and Pedro has rendered services to Florentino and Tecla. Florentino likewise
bequeathed his separate properties consisting of three parcels of abaca land and
parcel of riceland to his protege (sasacuyang ataman), Adolfo Fortajada, a minor.
3.Opposition to the probate of the will was registered by the testators legal heirs,
namely, his surviving brother, Leon, and his nephews and nieces. After a hearing,
wherein the oppositors did not present any evidence in support of their opposition,
Judge Pablo S. Rivera, in his decision of October 27, 1939, admitted the will to
probate and appointed Gallanosa as executor. Judge Rivera specifically found that
the testator executed his last will gozando de buena salud y facultades mentales y
no obrando en virtud de amenaza, fraude o influencia indebida.
4.On October 24, 1941, the testamentary heirs, the Gallanosa spouses and Adolfo
Fortajada, submitted a project of partition covering sixty-one parcels of land located
in various parts of Sorsogon, large cattle and several pieces of personal property
which were distributed in accordance with Florentinos will. The heirs assumed the
obligations of the estate amounting to P7,129.27 in the portion of P2,376.42 for
Adolfo Fortajada and P4,752.85 for the Gallanosa spouses. The project of partition
was approved by Judge Doroteo Amador in his order of March 13, 1943, thus
confirming the heirs possession of their respective shares. The testators legal heirs
did not appeal from the decree of probate and from the order of partition and
distribution.
5.On February 20, 1952, Leon Hitosis and the heirs of Florentinos deceased
brothers and sisters instituted an action in the Court of First Instance of Sorsogon
against Pedro Gallanosa for the recovery of the said sixty-one parcels of land. They
alleged that they, by themselves or through their predecessors-in-interest, had been
in continuous possession of those lands en concepto de dueoand that Gallanosa
entered those lands in 1951 and asserted ownership over the lands. They prayed
that they be declared the owners of the lands and that they be restored to the
possession thereof. They also claimed damages (Civil Case No. 696).
6.Gallanosa moved to dismiss the above complaint for lack of cause of action and
on the ground of bar by the prior judgment in the probate proceeding. Judge

Anatolio C. Maalac dismissed the complaint on the ground of res judicata in his
order of August 14, 1952 wherein he said:
It also appears that the plaintiffs and/or their predecessors-in-interest had intervened
in the testate proceedings in Civil Case No. 3171 of this Court for the purpose of contesting
the probate of the will of (the) late Florentino Hitosis; and had their opposition prospered
and the will denied of probate, the proceedings would have been converted into one of
intestacy (Art. 960 Civil Code) and the settlement of the estate of the said deceased would
have been made in accordance with the provisions of law governing legal or intestate
succession x x x, in which case the said plaintiffs, as the nearest of kin or legal heirs of said
Florentino Hitosis, would have succeeded to the ownership and possession of the 61 parcels
of land in question forming part of his estate (art. 1003, Civil Code).
However, the decision of the Court was adverse to them, when it dismissed their
opposition and ordered the probate of his will. From this decision (Annex K) legalizing the
said will, the oppositors did not file any appeal within the period fixed by law, despite the
fact that they were duly notified thereof, so that the said decision had become final and it
now constitutes a bar to any action that the plaintiffs may institute for the purpose of
seeking a redetermination of their rights to inherit the properties of the late Florentino
Hitosis.
In other words, the said decision of this Court in Civil Case (Special Proceeding) No.
3171, in which the herein plaintiffs or their predecessors-in-interest had intervened as
parties oppositors, constitutes a final judicial determination of the issue that the said
plaintiffs, as ordinary heirs, have no legal rights to succeed to any of the properties of the
late Florentino Hitosis; consequently, their present claim to the ownership and possession
of the 61 parcels of land in question is without any legal merit or basis.

7.The plaintiffs did not appeal from that order of dismissal which should have set
the matter at rest. But the same plaintiffs or oppositors to the probate of the will,
and their heirs, with a persistence befitting a more meritorious case, filed on
September 21, 1967, or fifteen years after the dismissal of Civil Case No. 696 and
twenty-eight years after the probate of the will another action in the same court
against the Gallanosa spouses and Adolfo Fortajada for the annulment of the will
of Florentino Hitosis and for the recovery of the same sixty-one parcels of land. They
prayed for the appointment of a receiver.
8.As basis of their complaint, they alleged that the Gallanosa spouses, through
fraud and deceit, caused the execution and simulation of the document purporting

to be the last will and testament of Florentino Hitosis. While in their 1952
complaint the same plaintiffs alleged that they were in possession of the lands in
question, in their 1967 complaint they admitted that since 1939, or from the death
of FlorentinoHitosis, the defendants (now the petitioners) have been inpossession of
the disputed lands (Par. XIV of the complaint, p.70, Rollo in Civil Case No. 555,
Gubat Branch, which wastransferred to Branch I in Sorsogon town where Special
Proceeding No. 3171 and Civil Case No. 696 were decided andwhich was re-docketed
as Civil Case No. 2233).
9. As already stated, that 1967 complaint, upon motion of the defendants, now
the petitioners, was dismissed by respondent Judge. The plaintiffs filed a motion for
reconsideration Respondent Judge granted it and set aside the order of dismissal.
He denied defendants motion for the reconsideration of his order setting aside that
dismissal order.
The petitioners or the defendants below contend in this certiorari case that the
lower court has no jurisdiction to set aside the 1939 decree of probate and the 1952
order of dismissal in Civil Case No. 696 and that it acted with grave abuse of
discretion in not dismissing private respondents 1967 complaint.
The issue is whether, under the facts set forth above, the private respondents
have a cause of action for the annulment of the will of Florentino Hitosis and for
the recovery of the sixty-one parcels of land adjudicated under that will to the
petitioners.
We hold that the lower court committed a grave abuse of discretion in
reconsideration its order of dismissal and in ignoring the 1939 testamentary case
and the 1952 Civil Case No. 696 which is the same as the instant 1967 case.
A rudimentary knowledge of substantive law and procedure is sufficient for an
ordinary lawyer to conclude upon a causal perusal of the 1967 complaint that it is
baseless and unwarranted.
What the plaintiffs seek is the annulment of a last will and testament duly
probated in 1939 by the lower court itself. The proceeding is coupled with an action
to recover the lands adjudicated to the defendants by the same court in 1943 by
virtue of the probated will, which action is a resuscitation of the complaint of the
same parties that the same court dismissed in 1952.

It is evident from the allegations of the complaint and from defendants motion to
dismiss that plaintiffs 1967 action is barred by res judicata, a double-barrelled
defense, and by prescription, acquisitive and extinctive, or by what are known in
the jus civile and the jus gentium as usucapio, longi temporis possesio and
praescriptio (See Ramos vs. Ramps, L-19872, December 3, 1974, 61 SCRA 284).
Our procedural law does not sanction an action for the annulment of a will. In
order that a will may take effect, it has to be probated, legalized or allowed in the
proper testamentary proceeding. The probate of the will is mandatory (Art. 838,
Civil Code; sec. 1, Rule 75, formerly sec. 1, Rule 76, Rules of Court; Guevara vs.
Guevara, 74 Phil. 479; Guevara vs. Guevara, 98 Phil. 249).
The testamentary proceeding is a special proceeding for the settlement of the
testators estate. A special proceeding is distinct and different from an ordinary
action (Secs. 1 and 2, Rule 2 and sec. 1, Rule 72, Rules of Court).
We say that the defense of res judicata, as a ground for the dismissal of plaintiffs
1967 complaint, is a two-pronged defense because (1) the 1939 and 1943 decrees of
probate and distribution in Special Proceeding No. 3171 and (2) the 1952 order of
dismissal in Civil Case No. 696 of the lower court constitute bars by former
judgment. Rule 39 of the Rules of Court provides:
SEC. 49. Effect of judgments.The effect of a judgment or final order rendered by a
court or judge of the Philippines, having jurisdiction to pronounce the judgment or order,
may be as follows:
(a) In case of a judgment or order against a specific thing, or in respect to the probate of
a will or the administration of the estate of a deceased person, or in respect to the personal,
political, or legal condition or status of a particular person or his relationship to another,
the judgment or order is conclusive upon the title to the thing, the will or administration, or
the condition, status or relationship of the person; however, the probate of a will or granting
of letters of administration shall only be prima facie evidence of the death of the testator or
intestate;
(b) In other cases the judgment or order is, with respect to the matter directly adjudged
or as to any other matter that could have been raised in relation thereto, conclusive between
the parties and their successors in interest by title subsequent to the commencement of the
action or special proceeding, litigating of the same thing and under the same title and in
the same capacity;

(c) In any other litigation between the same parties or their successors in interest, that
only is deemed to have been adjudged in a former judgment which appears upon its face to
have been so adjudged, or which was actually and necessarily included therein or necessary
thereto.

The 1939 decree of probate is conclusive as to the due execution or formal validity
of the will (Sec. 625, Act 190; sec. 1, Rule 76, now sec. 1, Rule 75, Rules of Court;
Last par. of art. 838, Civil Code).
That means that the testator was of sound and disposing mind at the time when
he executed the will and was not acting under duress, menace, fraud, or undue
influence; that the will was signed by him in the presence of the required number of
witnesses, and that the will is genuine and is not a forgery. Accordingly, these facts
cannot again be questioned in a subsequent proceeding, not even in a criminal
action for the forgery of the will. (3 Morans Comments on the Rules of Court, 1970
Edition, p. 395; Manahan vs. Manahan, 58 Phil. 448).
After the finality of the allowance of a will, the issue as to the voluntariness of its
execution cannot be raised anymore (Santos vs. De Buenaventura, L-22797,
September 22, 1966, 18 SCRA 47).
In Austria vs. Ventenilla, 21 Phil. 180, a petition for annulment of a will was
not entertained after the decree of probate had become final. That case is
summarized as follows:
Wills; Probate; Alleged Fraudulent Will; Appeal.V. died. His will was admitted to
probate without objection. No appeal was taken from said order. It was admitted that due
and legal notice had been given to all parties. Fifteen months after the date of said order, a
motion was presented in the lower court to have said will declared null and void, for the
reason that fraud had been practiced upon the deceased in the making of his will.
Held: That under section 625 of Act No. 190, the only time given parties who are
displeased with the order admitting to probate a will, for an appeal is the time given for
appeals in ordinary actions; but without deciding whether or not an order admitting a will
to probate will be opened for fraud, after the time allowed for an appeal has expired, when
no appeal is taken from an order probating a will, the heirs can not, in subsequent litigation
in the same proceedings, raise questions relating to its due execution. The probate of a will
is conclusive as to its due execution and as to the testamentary capacity of the testator.
(See Austria vs. Heirs of Ventenilla, 99 Phil. 1069).

On the other hand, the 1943 decree of adjudication rendered by the trial court in
the testate proceeding for the settlement of the estate of Florentino Hitosis, having
been rendered in a proceeding in rem, is under the abovequoted section 49(a),
binding upon the whole world (Manalo vs. Paredes, 47 Phil. 938; In re Estate of
Johnson, 39 Phil. 156;De la Cerna vs. Potot, 120 Phil. 1361, 1364; McMaster vs.
Hentry Reissmann & Co., 68 Phil. 142).
It is not only the 1939 probate proceeding that can be interposed as res
judicata with respect to private respondents complaint. The 1952 order of dismissal
rendered by Judge Maalac in Civil Case No. 696, a judgment in personam, was an
adjudication on the merits (Sec. 4, Rule 30, old Rules of Court). It constitutes a bar
by former judgment under the aforequoted section 49(b) (Anticamara vs. Ong, L29689, April 14, 1978).
The plaintiffs or private respondents did not even bother to ask for the
annulment of the testamentary proceeding and the proceeding in Civil Case No.
696. Obviously, they realized that the final adjudications in those cases have the
binding force of res judicata and that there is no ground, nor is it timely, to ask for
the nullification of the final orders and judgments in those two cases.
It is a fundamental concept in the organization of every jural system, a principle
of public policy, that, at the risk of occasional errors, judgments of courts should
become final at some definite date fixed by law. Interest rei publicae ut finis sit litum.
The very object for which the courts were constituted was to put an end to
controversies. (Dy Cay vs. Crossfield and OBrien, 38 Phil. 521; Pealosa vs.
Tuason,22 Phil. 303; De la Cerna vs. Potot, supra).
After the period for seeking relief from a final order or judgment under Rule 38 of
the Rules of Court has expired, a final judgment or order can be set aside only on
the grounds of (a) lack of jurisdiction or lack of due process of law or (b) that the
judgment was obtained by means of extrinsic or collateral fraud. In the latter case,
the period for annulling the judgment is four years from the discovery of the fraud
(2 Morans Comments on the Rules of Court, 1970 Edition, pp. 245-246; Mauricio vs.
Villanueva, 106 Phil. 1159).
To hurdle over the obstacle of prescription, the trial court, naively adopting the
theory of plaintiffs counsel, held that the action for the recovery of the lands had

not prescribed because the rule in article 1410 of the Civil Code, that the action or
defense for the declaration of the inexistence of a contract does not prescribe,
applies towills.
That ruling is a glaring error. Article 1410 cannot possibly apply to last wills and
testaments. The trial court and plaintiffs counsel relied upon the case of Dingle vs.
Guillermo. 48 O. G. 4410, allegedly decided by this Court, which cited the ruling
in Tipton vs. Velasco, 6 Phil. 67, that mere lapse of time cannot give efficacy to
void contracts, a ruling elevated to the category of a codal provision in article 1410.
The Dingle case was decided by the Court of Appeals. Even the trial court did not
take pains to verify the misrepresentation of plaintiffs counsel that the Dinglecase
was decided by this Court. An elementary knowledge of civil law could have alerted
the trial court to the egregious error of plaintiffs counsel in arguing that article
1410 applies to wills.
WHEREFORE, the lower courts orders of May 3 and June 17, 1968 are reversed and set aside and its order
of dismissal dated January 10, 1968 is affirmed. Costs against the private respondents.
SO ORDERED.

Fernando (Chairman), Barredo, Antonio, and Santos, JJ., concur.

Concepcion Jr., J., is on leave.
Lower courts orders reversed and set aside and order of dismissal affirmed.
Notes.An intestate courts approval of the inventory of assets of the deceased is not conclusive
as to what assets really belongs to the estate and is without prejudice to a judgment in an action on
the title thereto. (Sebial vs. Sebial, 64 SCRA 385).
A statement in a last will and testament that the testator owns the southern half of the conjugal
estate is contrary to law because the spouses are pro indiviso owners thereof.
To determine whether or not a summary settlement of an estate is called for, the probate court
should ascertain the value of the estate left by the deceased by preponderance of evidence. (Sebial vs.
Sebial, 64 SCRA 385).
The probate court may approve a project of partition of a parcel of land claimed by one of the
parties as exclusively his and not part of the decedents estate. (Ermac vs. Modelo, 64 SCRA 358).

The Court, under its supervisory authority over all inferior courts may properly decree that
venue, in a case involving the settlement of the estate of a deceased, was properly assumed by the
Quezon City court, and decree, in turn, that the CFI of Laguna desist from further continuing with
the case and instead transfer all its records to the Quezon City court for the continuation of the
proceedings. (Garcia Fule vs. Court of Appeals, 74 SCRA 203 citing the doctrine laid down in Cuenco
vs. Court of Appeals, 53 SCRA 381).
Where an heir has not received his share, the better practice is for him to demand his share
through a proper motion in the same probate court or administration proceedings, or for reopening of
the probate or administration proceedings if it had already been closed. (Guilas vs. Judge of CFI, 43
SCRA 111; Macias vs. Uy Kim,45 SCRA 251).
Testate proceedings for the settlement of the estate of a deceased person take precedence over
intestate proceedings for the same purpose. (Cuenco vs. Court of Appeals, 53 SCRA 360).
The jurisdiction of a probate court becomes vested upon thedelivery thereto of the will even if no
petition for its allowance was filed until later, because, upon the will being deposited, the court could,
motu proprio have taken steps to fix the time and place of proving the will, and issued the
corresponding notices conformably to what is prescribed by Section 3, Rule 76, of the Revised Rules
of Court (Section 3, Rule 77, of the old Rules of Court; (Rodriguez vs. Borja, 17 SCRA 418.)
Although it is true that final orders in probate cases partake the nature of a judgment in rem,
binding upon the whole world, it does not follow therefrom that said final orders, like any other
judgment or final order, cannot, within the statutory period of prescription, be annulled upon the
ground of extrinsic fraud. (Vda. de Serrano vs. Court of Appeals, 33 SCRA 865.)

o0o
No. L-62952. October 9, 1985.

SOFIA J. NEPOMUCENO, petitioner, vs. THE HONORABLE COURT OF

APPEALS, RUFINA GOMEZ, OSCAR JUGO ANG CARMELITA JUGO,
respondents.
Succession; Wills; Jurisdiction; The fact that the probate court declared a devise made
in a will null and void will be sustained where no useful purpose will be served by requiring
the filing of a separate civil action and restricting the court only to the issue of extrinsic
validity of the will.We are of the opinion that in view of certain unusual provisions of the
will, which are of dubious legality, and because of the motion to withdraw the petition f or

probate (which the lower court assumed to have been filed with the petitioner's
authorization), the trial court acted correctly in passing upon the will's intrinsic validity
even before its formal validity had been established. The probate of a will might become an
idle ceremony if on its face it appears to be intrinsically void. Where practical
considerations demand that the intrinsic validity of the will be passed upon, even before it
is probated, the court should meet the issue (Nuguid v. Nuguid, 64 O.G. 1527, 17 SCRA 449.
Compare with Sumilang v. Ramagosa, L-23135, December 26, 1967, 21 SCRA 1369; Cacho
v. Udan, L-19996, April 30, 1965, 13 SCRA 693).
Same; Same; Same; Same.We pause to reflect. If the case were to be remanded for
probate of the will, nothing will be gained. On the contrary, this litigation will be
protracted. And for aught that appears in the record, in the event of probate or if the court
rejects the will, probability exists that the case will come up once again before us on the
same issue of the intrinsic validity or nullity of the will. Result: waste of time, effort,
expense, plus added anxiety. These are the practical considerations that induce us to a
belief that we might as well meet head-on the issue of the validity 01 the provisions of the
will in question. (Section 2, Rule 1, Rules of Court. Case, et al. v. Jugo, et al., 77 Phil. 517,
522). After all, there exists a justiciable controversy crying f or solution.
Same; Same; A devise given by a married man estranged from his wife for 22 years
prior to his death, to a woman with whom he has been living for said period of time is void.
Moreover, the prohibition in Article 739 of the Civil Code is against the making of
a donation between persons who are living in adultery or concubinage. It is the donation
which becomes void. The giver cannot give even assuming that the recipient may receive.
The very wordings of the Will invalidate the legacy because the testator admitted he was
disposing the properties to a person with whom he had been living in concubinage.

PETITION for certiorari to review the decision of the Court of Appeals.

The facts are stated in the opinion of the Court.
GUTIERREZ, JR., J.:
This is a petition for certiorari to set aside that portion of the decision of the
respondent Court of Appeals (now Intermediate Appellate Court) dated June 3,
1982, as amended by the resolution dated August 10, 1982, declaring as null and
void the devise in favor of the petitioner and the resolution dated December 28, 1982
denying petitioner's motion for reconsideration.

Martin Jugo died on July 16, 1974 in Malabon, Rizal. He left a last Will and
Testament duly signed by him at the end of the Will on page three and on the left
margin of pages 1, 2 and 4 thereof in the presence of Celestina Alejandro, Myrna C.
Cortez, and Leandro Leao, who in turn, affixed their signatures below the
attestation clause and on the left margin of pages 1, 2 and 4 of the Will in the
presence of the testator and of each other and the Notary Public. The Will was
acknowledged before the Notary Public Romeo Escareal by the testator and his
three attesting witnesses.
In the said Will, the testator named and appointed herein petitioner Sofia J.
Nepomuceno as his sole and only executor of his estate. It is clearly stated in the
Will that the testator was legally married to a certain Rufina Gomez by whom he
had two legitimate children, Oscar and Carmelita, but since 1952, he had been
estranged from his lawfully wedded wife and had been living with petitioner as
husband and wife. In fact, on December 5, 1952, the testator Martin Jugo and the
petitioner herein, Sofia J. Nepomuceno were married in Victoria, Tarlac before the
Justice of the Peace. The testator devised to his forced heirs, namely, his legal wife
Rufina Gomez and his children Oscar and Carmelita his entire estate and the free
portion thereof to herein petitioner. The Will reads in part:
"Art. III. That I have the following legal heirs, namely: my aforementioned legal wife,
Rufina Gomez, and our son, Oscar, and daughter Carmelita, both surnamed Jugo, whom I
declare and admit to be legally and properly entitled to inherit from me; that while I have
been estranged from my above-named wife for so many years, I cannot deny that I was
legally married to her or that we have been separated up to the present for reasons and
justifications known fully well by them;
"Art. IV. That since 1952, I have been living, as man and wife,with one Sofia J.
Nepomuceno, whom I declare and avow to be entitled to my love and affection, for all the
things which she has done for me, now and in the past; that while Sofia J. Nepomuceno has
with my full knowledge and consent, did comport and represent myself as her own husband,
in truth and in fact, as well as in the eyes of the law, I could not bind her to me in the holy
bonds of matrimony because of my aforementioned previous marriage;"

On August 21, 1974, the petitioner filed a petition for the probate of the last Will
and Testament of the deceased Martin Jugo in the Court of First Instance of Rizal,
Branch XXXIV, Caloocan City and asked for the issuance to her of letters
testamentary.

On May 13, 1975, the legal wife of the testator, Rufina Gomez and her children
filed an opposition alleging inter alia that the execution of the Will was procured by
undue and improper influence on the part of the petitioner; that at the time of the
execution of the Will, the testator was already very sick and that petitioner having
admitted her living in concubinage with the testator, she is wanting in integrity and
thus letters testamentary should not be issued to her.
On January 6, 1976, the lower court denied the probate of the Will on the ground
that as the testator admitted in his Will to cohabiting with the petitioner from
December 1952 until his death on July 16, 1974, the Will's admission to probate will
be an idle exercise because on the face of the Wills the invalidity of its intrinsic
provisions is evident.
The petitioner appealed to the respondent-appellate court.
On June 2, 1982, the respondent court set aside the decision of the Court of First
Instance of Rizal denying the probate of the Will. The respondent court declared the
Will to be valid except that the devise in favor of the petitioner is null and void
pursuant to Article 739 in relation with Article 1028 of the Civil Code of the
Philippines. The dispositive portion of the decision reads:
"WHEREFORE, the decision a quo is hereby set aside, the will in question declared valid
except the devise in favor of the appellant which is declared null and void. The properties so
devised are instead passed on in intestacy to the appellant in equal shares, without
pronouncement as to costs."

On June 15, 1982, oppositors Rufina Gomez and her children filed a "Motion for
Correction of Clerical Error" praying that the word "appellant" in the last sentence
of the dispositive portion of the decision be changed to "appellees" so as to read:
"The properties so devised are instead passed on intestacy to the appellees in equal
shares, without pronouncement as to costs." The motion was granted by the
respondent court on August 10,1982.
On August 23, 1982, the petitioner filed a motion for reconsideration. This was
denied by the respondent court in a resolution dated December 28,1982.
The main issue raised by the petitioner is whether or not the respondent court
acted in excess of its jurisdiction when after declaring the last Will and Testament

of the deceased Martin Jugo validly drawn, it went on to pass upon the intrinsic
validity of the testamentary provision in favor of herein petitioner,
The petitioner submits that the validity of the testamentary provision in her
favor cannot be passed upon and decided in the probate proceedings but in some
other proceedings because the only purpose of the probate of a Will is to establish
conclusively as against everyone that a Will was executed with the formalities
required by law and that the testator has the mental capacity to execute the same.
The petitioner further contends that even if the provisions of paragraph 1 of Article
739 of the Civil Code of the Philippines were applicable, the declaration of its nullity
could only be made by the proper court in a separate action brought by the legal
wife for the specific purpose of obtaining a declaration of the nullity of the
testamentary provision in the Will in favor of the person with whom the testator
was allegedly guilty of adultery or concubinage.
The respondents on the other hand contend that the fact that the last Will and
Testament itself expressly admits indubitably on its face the meretricious
relationship between the testator and the petitioner and the fact that petitioner
herself initiated the presentation of evidence on her alleged ignorance of the true
civil status of the testator, which led private respondents to present contrary
evidence, merits the application of the doctrine enunciated in Nuguid v. Felix
Nuguid, et al (17 SCRA 449) and Felix Balanay, Jr. v. Hon. Antonio Martinez, et
al (G.R. No. L-39247, June 27, 1975). Respondents also submit that the admission of
the testator of the illicit relationship between him and the petitioner put in issue
the legality of the devise.
We agree with the respondents.
The respondent court acted within its jurisdiction when after declaring the Will
to be validly drawn, it went on to pass upon the intrinsic validity of the Will and
declared the devise in f avor of the petitioner null and void.
The general rule is that in probate proceedings, the court's area of inquiry is
limited to an examination and resolution of the extrinsic validity of the Will. The
rule is expressed thus:
xxx

xxx

xxx

' 'x x x It is elementary that a probate decree finally and definitively settles all questions
concerning capacity of the testator and the proper execution and witnessing of his last Will
and testament, irrespective of whether its provisions are valid and enforceable or
otherwise." (Fernandez v. Dimagiba, 21 SCRA 428)
"The petition below being for the probate of a Will, the court's area of inquiry is limited
to the extrinsic validity thereof. The testator s testamentary capacity and the compliance
with the formal requisites or solemnities prescribed by law are the only questions presented
for the resolution of the court. Any inquiry into the intrinsic validity or efficacy of the
provisions of the will or the legality of any devise or legacy is premature.
xxx

xxx

xxx

"True or not, the alleged sale is no ground for the dismissal of the petition for probate.
Probate is one thing; the validity of the testamentary provisions is another, The first decides
the execution of the document and the testamentary capacity of the testator; the second
relates to descent and distribution."(Sumilang v. Ramagosa, 21 SCRA 1369)
xxx

xxx

xxx

"To establish conclusively as against everyone, and once for all, the f acts that a will was
executed with the formalities required by law and that the testator was in a condition to
make a will, is the only purpose of the proceedings under the new code for the probate of a
will. (Sec. 625). The judgment in such proceedings determines and can determine nothing
more. In them the court has no power to pass upon the validity of any provisions made in
the will. It can not decide, for example, that a certain legacy is void and another one valid. x
x x" (Castaeda v. Alemany, 3 Phil. 426)

The rule, however, is not inflexible and absolute. Given exceptional circumstances,
the probate court is not powerless to do what the situation constrains it to do and
pass upon certain provisions of the Will.
In Nuguid v. Nuguid (17 SCRA 449) cited by the trial court, the testator
instituted the petitioner as universal heir and completely preterited her surviving
forced heirs. A will of this nature, no matter how valid it may appear extrinsically,
would be null and void. Separate or latter proceedings to determine the intrinsic
validity of the testamentary provisions would be superfluous.
Even before establishing the formal validity of the will, the Court in Balanay, Jr.
v. Martinez (64 SCRA 452) passed upon the validity of its intrinsic provisions.

Invoking "practical considerations", we stated:

"The basic issue is whether the probate court erred in passing upon the intrinsic validity of
the will, bef ore ruling on its allowance or formal validity, and in declaring it void.
"We are of the opinion that in view of certain unusual provisions of the will, which are of
dubious legality, and because of the motion to withdraw the petition for probate (which the
lower court assumed to have been filed with the petitioner's authorization), the trial court
acted correctly in passing upon the will's intrinsic validity even before its formal validity
had been established. The probate of a will might become an idle ceremony if on its face it
appears to be intrinsically void. Where practical considerations demand that the intrinsic
validity of the will be passed upon, even before it is probated, the court should meet the
issue (Nuguid v. Nuguid, 64 O.G. 1527, 17 SCRA 449. Compare with Sumilang v.
Ramagosa, L-23135, December 26, 1967, 21 SCRA 1369; Cacho v. Udan, L-19996, April 30,
1965, 13 SCRA 693).

There appears to be no more dispute at this time over the extrinsic validity of the
Will. Both parties are agreed that the Will of Martin Jugo was executed with all the
formalities required by law and that the testator had the mental capacity to execute
his Will. The petitioner states that she completely agrees with the respondent court
when in resolving the question of whether or not the probate court correctly denied
the probate of Martin Jugo's last Will and Testament, it ruled:
"This being so, the will is declared validly drawn." (Page 4, Decision, Annex A of Petition.)

On the other hand the respondents pray for the affirmance of the Court of Appeals'
decision in toto.
The only issue, therefore, is the jurisdiction of the respondent court to declare the
testamentary provision in favor of the petitioner as null and void.
We sustain the respondent court's jurisdiction. As stated in Nuguid v.
Nuguid, (supra):
"We pause to reflect. If the case were to be remanded for probate of the will, nothing will be
gained. On the contrary, this litigation will be protracted. And for aught that appears in the
record, in the event of probate or if the court rejects the will, probability exists that the case
will come up once again before us on the same issue of the intrinsic validity or nullity of the
will. Result. waste of time, effort, expense, plus added anxiety. These are the practical
considerations that induce us to a belief that we might as well meet head-on the issue of the

validity of the provisions of the will in question. (Section 2, Rule 1, Rules of Court. Case, et
al. v. Jugo, et al., 77 Phil. 517, 522).

After all, there exists a justiciable controversy crying for solution. We see no useful
purpose that would be served if we remand the nullified provision to the proper
court in a separate action for that purpose simply because, in the probate of a will,
the court does not ordinarily look into the intrinsic validity of its provisions.
Article 739 of the Civil Code provides:
"The following donations shall be void:
1. (1)Those made bet ween persons who were guilty of adultery or concubinage at the
time of the donation;
1. (2)Those made between persons found guilty of the same criminal offense, in
consideration thereof;
2. (3)Those made to a public officer or his wife, descendants and ascendants, by reason
of his office.
"In the case referred to in No. 1, the action for declaration of nullity may be brought by the
spouse of the donor or donee; and the guilt of the donor and donee may be proved by
preponderance of evidence in the same action.

Article 1028 of the Civil Code provides:

"The prohibitions mentioned in Article 739, concerning donationsinter vivos shall apply to
testamentary provisions."

In Article III of the disputed Will, executed on August 15, 1968, or almost six years
before the testator's death on July 16, 1974, Martin Jugo stated that respondent
Rufina Gomez was his legal wife from whom he had been estranged "for so many
years." He also declared that respondents Carmelita Jugo and Oscar Jugo were his
legitimate children. In Article IV, he stated that he had been living as man and wife
with the petitioner since 1952. Testator Jugo declared that the petitioner was
entitled to his love and affection. He stated that Nepomuceno represented Jugo as
her own husband but "in truth and in fact, as well as in the eyes of the law, l could
not bind her to me in the holy bonds of matrimony because of my af orementioned
previous marriage.''

There is no question from the records about the fact of a prior existing marriage
when Martin Jugo executed his Will. There is also no dispute that the petitioner
and Mr. Jugo lived together in an ostensible marital relationship for 22 years until
his death.
It is also a fact that on December 2, 1952, Martin Jugo and Sofia J. Nepomuceno
contracted a marriage before the Justice of the Peace of Victoria, Tarlac. The man
was then 51 years old while the woman was 48. Nepomuceno now contends that she
acted in good faith for 22 years in the belief that she was legally married to the
testator.
The records do not sustain a finding of innocence or good faith. As argued by the
private respondents:
"First. The last will and testament itself expressly admits indubitably on its face the
meretricious relationship between the testator and petitioner, the devisee.
"Second. Petitioner herself initiated the presentation of evidence on her alleged
ignorance of the true civil status of the testator, which led private respondents to present
contrary evidence,
"In short, the parties themselves dueled on the intrinsic validity of the legacy given in
the will to petitioner by the deceased testator at the start of the proceedings.
"Whether or not petitioner knew that testator Martin Jugo, the man he had lived with as
man and wife, as already married was an important and specific issue brought by the
parties before the trial court, and passed upon by the Court of Appeals.
"Instead of limiting herself to proving the extrinsic validity of the will, it was petitioner
who opted to present evidence on her alleged good faith in marrying the testator.
(Testimony of Petitioner, TSN of August 1,1982, pp. 56-57 and pp. 62-64).
"Private respondents, naturally, presented evidence that would refute the testimony of
petitioner on the point.
"Sebastian Jugo, younger brother of the deceased testator, testified at length on the
meretricious relationship of his brother and petitioner. (TSN of August 18, 1975).
"Clearly, the good faith of petitioner was by option of the parties made a decisive issue
right at the inception of the case.

- "Confronted by the situation, the trial court had to make a ruling on the question.
"When the court a quo held that the testator Martin Jugo and petitioner 'were deemed
guilty of adultery or concubinage', it was a finding that petitioner was not the innocent
woman she pretended to be."
xxx

xxx

xxx

"3 If a review of the evidence must be made nonetheless, then private respondents
respectfully offer the f ollowing analysis:
'

"FIRST:

The secrecy of the marriage of petitioner with the

deceased testator in a town in Tarlac where
neither she nor the testator ever resided. If there
was nothing to hide from, why the concealment?
Of course, it maybe argued that the marriage of
the deceased with private respondent Rufina
Gomez
was likewise done in secrecy. But it should be
remembered that Rufina Gomez was already in
the family way at that time and it would seem
that the parents of Martin Jugo were not in favor
of the marriage so much so that an action in court
wasbrought concerning the marriage. (Testimony
of Sebastian Jugo, TSN of August 18, 1975, pp.
29-30)

"SECOND
:

Petitioner was a sweetheart of the deceased

testator when they were still both single. That
would be in 1922 as Martin Jugo married
respondent Rufina Gomez on November 29,
1923 (Exh. 3). Petitioner married the testator
only on December 5, 1952. There was a space of
about 30 years inb etween. During those 30
years, could it be believed that she did not even
wonder why Martin Jugo did not marry her nor
contact her anymore after November, 1923
facts that should impel her to ask her groom
before she married him in secrecy, especially so

when she was already about 50 years old at the

time of marriage.
'THIRD:

The fact that petitioner broke off from Martin

Jugo in 1923 is by itself conclusive
demonstration that she knew that the man she
had openly lived for 22 years as man and wife
was a married man with already two children.

"FOURTH: Having admitted that she knew the children of

respondent Rufina Gomez, is it possible that she
would not have asked Martin Jugo whether or
not they were his illegitimate or legitimate
children and by whom? That is un-Filipino.
"FIFTH:

Having often gone to Pasig to the residence of

the parents of the deceased testator, is it possible
that she would not have known that the mother of
private respondent Oscar Jugo and Carmelita
Jugo was respondent Rufina Gomez, considering
that the houses of the parents of Martin Jugo
(where he had lived for many years) and that of
respondent Rufina Gomez were just a few meters
away?

"Such pretentions of petitioner Sofia Nepomuceno are unbelievable. They are, to say the least, inherently
improbable, for they are against the experience in common life and the ordinary instincts and promptings of
human nature that a woman would not bother at all to ask the man she was going to marry whether or not he
was already married to another, knowing that her groom had children. It would be a story that would strain
human credulity to the limit if petitioner did not know that Martin Jugo was already a married man in view of
the irrefutable fact that it was precisely his marriage to respondent Rufina Gomez that led petitioner to break
off with the deceased during their younger years."
Moreover, the prohibition in Article 739 of the Civil Code is against the making of a donation between persons
who are living in adultery or concubinage. It is the donation which becomes void. The giver cannot give even
assuming that the recipient may receive. The very wordings of the Will invalidate the legacy because the
testator admitted he was disposing the properties to a person with whom he had been living in concubinage.

WHEREFORE, the petition is DISMISSED for lack of merit. The decision of the Court of Appeals, now
Intermediate Appellate Court, is AFFIRMED. No costs.
SO ORDERED.
Teehankee (Chairman), Melencio-Herrera, Plana,Relova, De la Fuente and Patajo, JJ., concur.
Petition dismissed. Decision affirmed.
Notes.Where circumstances demand that intrinsic validity of testamentary provisions be passed upon
even before the extrinsic validity of will is resolved, probate court should meet the issue. (Cayetano vs.
Leonidas, 129 SCRA 522.)
Will should not be denied legality based on dubious grounds. (Maninang vs, Court of Appeals 114 SCRA
478.)
Generally, the probate of a will is mandatory. The law enjoins the probate of the will and public requires it,
because unless the will is probated and notice thereof given to the whole word, the right of a person to dispose of
his property by will maybe rendered nugatory. (Id.) The law on the formal requirements of a will should be
liberally construed. While perfection in drafting is desirable, unsubstantial departures should be ignored.(Perez
vs. Rosal, 118 SCRA 195.)

[No. 48840.December 29, 1943]

ERNESTO M. GUEVARA, petitioner and appellant, vs. ROSARIO GUEVARA and
her husband PEDRO BUISON, respondents and appellees.

1.WILLS; PRESENTATION OF WILL FOR PROBATE IS MANDATORY; SETTLEMENT OF

ESTATE ON BASIS OF INTESTACY WHEN DECEDENT LEFT A WILL, AGAINST THE
LAW.We hold that under section 1 of Rule 74, in relation to Rule 76, if the
decedent left a will and no debts and the heirs and legatees desire" to make an
extrajudicial partition of the estate, they must first present that will to the court
for probate and divide the estate in accordance with the will. They may not
disregard the provisions of the will unless those provisions are contrary to law.
Neither may they do away with the presentation of the will to the court for probate, because such suppression of the will is contrary to law and public policy.
The law enjoins the probate of the will and public policy requires it, because
unless the will is probated and notice thereof given to the whole world, the right
of a person to dispose of his property by will may be rendered nugatory, as is
attempted to be done in the instant case. Absent legatees and devisees, or such of

them as may have no knowledge of the will, could be cheated of their inheritance
thru the collusion of some of the heirs who might agree to the partition of the
estate among themselves to the exclusion of others.
2.ID.; ID.; ID.Even if the decedent left no debts and nobody raises any question as
to the authenticity and due execution of the will, none of the heirs may sue for
the partition of the estate in accordance with that will without first securing its
allowance or probate of the court: first, because the law expressly provides that
"no will shall pass either real or personal estate unless it is proved and allowed in
the proper court"; and, second, because the probate of a will, which is a
proceeding in rem, cannot be dispensed with and substituted by any other
proceeding, judicial or extrajudicial, without offending against public policy designed to effectuate the testator's right to dispose of his property by will in
accordance with law and to protect the rights of the heirs and legatees under the
will thru the means provided by law, among which are the publication and the
personal notices to each and all of said heirs and legatees. Nor may the court
approve and allow the will presented in evidence in such an an action for
partition, which is one in personam, any more than it could decree the
registration under the Torrens system of the land involved in an ordinary action
for reivindieacion or partition.
3.TORRENS REGISTRATION; REGISTRATION DOES NOT AFFECT RIGHTS OF PARTITION
BETWEEN LEGATEES. It results that the interested parties consented to the
registration of the land in question in the name of E. M. G. alone subject to the
implied trust on account of which he is under obligation to deliver and convey to
them their corresponding shares after all the debts of the original owner of said
land had been paid. Such finding does not constitute a reversal of the decision
and decree of registration, which merely confirmed the petitioner's title; and in
the absence of any intervening innocent third party, the petitioner may be
compelled to fulfil the promise by virtue of which he acquired his title. That is
authorized by section 70 of the Land Registration Act, cited by the Court of
Appeals, and by the decision of this Court in Severino vs. Severino, 44 Phil., 343,
and the cases therein cited.
PETITION to review on certiorari a decision of the Court of Appeals.
The facts are stated in the opinion of the court.
Primicias, Abad, Mencias & Castillo for appellant.
Pedro C. Quinto for appellees.

OZAETA,J.:
Ernesto M. Guevara and Rosario Guevara, legitimate son and natural daughter,
respectively, of the deceased Victorino L. Guevara, are litigating here over their
inheritance from the latter. The action was commenced on November 12, 1937, by
Rosario Guevara to recover from Ernesto Guevara what she claims to be her strict
ligitime as an acknowledged natural daughter of the deceasedto wit, a portion of
423,492 square meters of a large parcel of land described in original certificate of
title No. 51691 of the province of Pangasinan, issued in the name of Ernesto M.
Guevara and to order the latter to pay her P6,000 plus P2,000 a year as damages
for withholding such legitime from her. The defendant answered the complaint
contending that whatever right or rights the plaintiff might have had, had been
barred by the operation of law.
It appears that on August 26, 1931, Victorino L. Guevara executed a will (exhibit
A), apparently with all the formalities of the law, wherein he made the following
bequests: To his stepdaughter Candida Guevara, a pair of earrings worth P150 and
a gold chain worth P40; to his son Ernesto M. Guevara, a gold ring worth P180 and
all the furniture, pictures, statues, and other religious objects found in the residence
of the testator in Poblacion Sur, Bayambang, Pangasinan; "a mi hija Rosario
Guevara," a pair of earrings worth P120; to his stepson Pio Guevara, a ring worth
P120; and to his wife by second marriage, Angustia Posadas, various pieces of
jewelry worth P1,020.
He also made the following devises: "A mis hijos Rosario Guevara y Ernesto M.
Guevara y a mis hijastros, Vivencio, Eduviges, Dionisia, Cndida y Po, apellidados
Guevara," a residential lot with its improvements situate in the town of Bayambang,
Pangasinan, having an area of 960 square meters and assessed at P540; to his wife
Angustia Posadas he confirmed the donation propter nuptias theretofore made by
him to her of a portion of 25 hectares of the large parcel of land of 259-odd hectares
described in plan Psu-66618. He also devised to her a portion of 5 hectares of the
same parcel of land by way of complete settlement of her usufructuary right.
He set aside 100 hectares of the same parcel of land to be disposed bf either by
him during his lifetime or by his attorney-in-fact Ernesto M. Guevara in order to pay
all his pending debts and to defray his expenses and those of his family up to the
time of his death.
The remander of said parcel of land he disposed of in the following manner:

"(d).Toda la porcin restante de mi terreno arriba descrito, de la extensin

superficial aproximada de ciento veintinueve (129) hectreas setenta (70) reas, y
veinticinco (25) centareas, con todas sus mejoras existentes en la misma, dejo y
distribuyo, proindiviso, a mis siguientes herederos como sigue:
"A mi hijo legtimo Ernesto M. Guevara, ciento ocho (108) hectreas, ocho (8)
reas y cincuenta y cuatro (54) centareas, hacia la parte que colinda al Oeste de las
cien (100) hectareas referidas en el inciso (a) de este prrafo del testamento, como
su propiedad absoluta y exclusiva, en la cual extensin superficial estn includas
cuarenta y tres (43) hectreas, veintitrs (23) reas y cuarenta y dos (42) centareas
que le doy en concepto de mejora.
"A mi hija natural reconocida, Hosario Guevara, veintiun (21) hectreas, sesenta
y un (61) reas y setenta y un (71) centareas, que es la parte restante.
"Duodecimo.Nombro por la presente como Albacea Tes-tamentario a mi hi jo
Ernesto M. Guevara, con relevacin de fianza. Y una yez legalizado este testamento,
y en cuanto sea posible, es mi deseo, que los herederos y legatarios aqu nombrados
se repartan extrajudicialmente mis bienes de conformidad con mis disposiciones
arriba consignadas."
Subsequently, and on July 12, 1933, Victorino L. Guevara executed a deed of sale
(exhibit 2) in favor of Ernesto M. Guevara whereby he conveyed to him the southern
half of the large parcel of land of which he had theretofore disposed by the will
above mentioned, in consideration of the sum of P1 and other valuable
considerations, among which were the payment of all his debts and obligations
amounting to not less than P16,500, his maintenance up to his death, and the
expenses of his last illness and funeral expenses. As to the northern half of the same
parcel of land, he declared : "Hago constar tambin que reconozco a mi referido hi jo
Ernesto M. Guevara como dueo de la mitad norte de la totalidad y con junto de los
referidos terrenos por haberlos comprado de su propio peculio del Sr. Rafael T.
Puzon a quien haba vendido con anterioridad."
On September 27, 1933, final decree of registration was issued in land
registration case No. 15174 of the Court of First Instance of Pangasinan, and
pursuant thereto original certificate of title No. 51691 of the same province was
issued on October 12 of the same year in favor of Ernesto M. Guevara over the whole
parcel of land described in the deed of sale above referred to. The registration
proceeding had been commenced on November 1, 1932, by Victorino L. Guevara and
Ernesto M. Guevara as applicants, with Rosario, among others, as oppositor; but

before the trial of the case Victorino L. Guevara withdrew as applicant and Ros-ario
Guevara and her co-oppositors also withdrew their opposition, .thereby facilitating
the issuance of the title in the name of Ernesto M. Guevara alone.
On September 27, 1933, Victorino L. Guevara died. His last will and testament,
however, was never presented to the court for probate, nor has any administration
proceeding ever been instituted for the settlement of his estate. Whether the various
legatees mentioned in the will have received their respective legacies or have even
been given due notice of the execution of said will and of the dispositions therein
made in their favor, does not affirmatively appear from the record of this case. Ever
since the death of Victorino L. Guevara, his only legitimate son Ernesto M. Guevara
appears to have possessed the land adjudicated to him in the registration
proceeding and to have disposed of various portions thereof for the purpose of
paying the debts left by his father.
In the meantime Rosario Guevara, who appears to have had her father's last will
and testament in her custody, did nothing judicially to invoke the testamentary
dispositions made therein in her favor, whereby the testator acknowledged her as
his natural daughter and, aside from certain legacies and bequests, devised to her a
portion of 21.6171 hectares of the large parcel of land described in the will. But a
little over four years after the testator's demise, she (assisted by her husband)
commenced the present action against Ernesto M. Guevara alone for the purpose
hereinbefore indicated; and it was only during the trial of this case that she
presented the will to the court, not for the purpose of having it probated but only to
prove that the deceased Victorino L. Guevara had acknowledged her as his natural
daughter. Upon that proof of acknowledgment she claimed her share of the
inheritance from him, but on the theory or assumption that he died intestate,
because the will had not been probated, for which reason, she asserted, the
betterment therein made by the testator in favor of his legitimate son Ernesto M.
Guevara should be disregarded. Both the trial court and the Court of Appeals
sustained that theory.
Two principal questions are before us for determination: (1) the legality of the
procedure adopted by the plaintiff (respondent herein) Rosario Guevara; and (2) the
efficacy of the deed of sale exhibit 2 and the effect of the certificate of title issued to
the defendant (petitioner herein) Ernesto M. Guevara.
I
We cannot sanction the procedure adopted by the respondent Rosario Gueyara, it
being in our opinion in violation of procedural law and an attempt to circumvent and

disregard the last will and testament of the decedent. The Code of Civil Procedure,
which was in force up to the time this case was decided by the trial court, contains
the following pertinent provisions:

"Sec. 625. Allotvance 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.
"Sec. 626. Custodian of Will to Deliver.The person who has the custody of a will shall,
within thirty days after he knows of the death of the testator, deliver the will into the court
which has jurisdiction, or to the executor named in the will.
"Sec. 627. Executor to Present Will and Accept or Refuse Trust.A person named as
executor in a will, shall within thirty days after he knows of the death of the testa tor, or
within thirty days after he knows that he is named executor, if he obtained such knowledge
after knowing of the death of the testator, present such will to the court which has
jurisdiction, unless the will has been otherwise returned to said court, and shall, within
such period, signify to the court his acceptance of the trust, or make known in writing his
refusal to accept it.
"Sec. 628. Penalty.A person who neglects any of the duties required in the two
preceding sections, unless he gives a satisfactory excuse to the court) shall be subject to a
fine not exceeding one thousand dollars.
"Sec. 629. Person Retaining Will may be Committed.If 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 jurisdiction, 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 kept in close confinement
until he delivers the will."

The foregoing provisions are now embodied in Rule 76 of the new Rules of Court,
which took effect on July 1, 1940.
The proceeding for the probate of a will is one in rem,with notice by publication to
the whole world and with personal notice to each of the known heirs, legatees, and
devisees of the testator (section 630, C. C. P., and sections 3 and 4, Rule 77). Altho
not contested (section 5, Rule 77), the due execution of the will and the fact that the
testator at the time of its execution was of sound and disposing mind and not acting
under duress, menace, and undue influence or fraud, must be proved to the
satisfaction of the court, and only then may the will be legalized and given effect by
means of a certificate of its allowance, signed by the judge and attested by the seal,
of the court; and when the will devises real property, attested copies thereof and of

the certificate of allowance must be recorded in the register of deeds of the province
in which the land lies. (Section 12, Rule 77, and section 624, C. C. P.)
It will readily be seen from the above provisions of the law that the presentation
of a will to the court for probate is mandatory and its allowance by the court is
essential and indispensable to its efficacy. To assure and compel the probate of a
will, the law punishes a person who neglects his duty to present it to the court with
a fine not exceeding P2,000, and if he should persist in not presenting it, he may be
committed to prison and kept there until he delivers the will.
The Court of Appeals took express notice of these requirements of the law and
held that a will, unless probated, is ineffective. Nevertheless it sanctioned the
procedure adopted by the respondent for the following reasons :
"The majority of the Court is of the opinion that if this case is dismissed ordering
the filing of testate proceedings, it would cause injustice, inconvenience, delay, and
much expense to the parties, and that therefore, it is preferable to leave them in the
very status which they themselves have chosen, and to decide their controversy once
and for all, since, in a similar case, the Supreme Court applied that same criterion
(Leao vs. Leao, supra), which is now sanctioned by section 1 of Rule 74 of the
Rules of Court. Besides, section 6 of Rule 124 provides that, if the procedure which
the court ought to follow in the exercise of its jurisdiction is not specifically pointed
out by the Rules of Court, any suitable process or mode of procedure may be adopted
which appears most consistent to the spirit of the said Rules. Hence, we declare the
action instituted by the plaintiff to be in accordance with law."
Let us look into the validity of these considerations. Section 1 of Rule 74 provides
as follows:

"Section 1. Extrajudicial settlement by agreement between heirs.If the decedent left no

debts and the heirs and legatees are all of age, or the minors are represented by their
judicial guardians, the parties may, without securing letters of administration, divide the
estate among themselves as they see fit by means of a public instrument filed in the office of
the register of deeds, and should they disagree, they may do so in an ordinary action of
partition. If there is only one heir or one legatee, he may adjudicate to himself the entire
estate by means of an affidavit filed in the office of the register of deeds. It shall be
presumed that the decedent left no debts if no creditor files a petition for letters of
administration within two years after the death of the decedent."

That is a modification of section 596 of the Code of Civil Procedure, which reads
as follows:

"Sec. 596. Settlement of Certain Intestates Without Legal Proceedings.Whenever all the
heirs of a person who died intestate are of lawful age and legal capacity and there are no
debts due from the estate, or all the debts have been paid the heirs may, by agreement duly
executed in writing by all of them, and not otherwise, apportion and divide the estate
among themselves, as they may see fit, without proceedings in court."

The implication is that by the omission of the word "intestate" and the use of the
word "legatees" in section 1 of Rule 74, a summary extrajudicial settlement of a
deceased person's estate, whether he died testate or intestate, may be made under
the conditions specified. Even if we give retroactive effect to section 1 of Rule 74 and
apply it here, as the Court of Appeals did, we do not believe it sanctions the
nonpresentation of a will for probate and much less the nullification of such will
thru the failure of its custodian to present it to the court for probate; for such a
result is precisely what Rule 76 sedulously provides against. Section 1 of Rule 74
merely authorizes the extrajudicial or judicial partition of the estate of a decedent
"without securing letters of administration." It does not say that in case the
decedent left a will the heirs and legatees may divide the estate among themselves
without the necessity of presenting the will to the court for probate.The petition to
probate a will and the petition to issue letters of administration are two different
things, altho both may be made in the same case. The allowance of a will precedes
the issuance of letters testamentary or of administration (section 4, Rule 78). One
can have a will probated without necessarily securing letters testamentary or of
administration. We hold that under section 1 of Rule 74, in relation to Rule 76, if the
decedent left a will and no debts arid the heirs and legatees desire to make an
extrajudicial partition of the estate, they must first present that will to the court for
probate and divide the estate in accordance with the will. They may not disregard
the provisions of the will unless those provisions are contrary to law. Neither may
they do away with the presentation of the will to the court for probate, because such
suppression of the will is contrary to law and public policy. The law enjoins the
probate of the will and public policy requires it, because unless the will is probated
and notice thereof given to the whole world, the right of a person to dispose of his
property by will may be rendered nugatory, as is attempted to be done in the instant
case. Absent legatees and devisees, or such of them as may have no knowledge of the
will, could be cheated of their inheritance thru the collusion of some of the heirs who
might agree to the partition of the estate among themselves to the exclusion of
others.
In the instant case there is no showing that the various legatees other than the
present litigants had received their respective legacies or that they had knowledge

of the existence and of the provisions of the will. Their right under the will cannot
be disregarded, nor may those rights be obliterated on account of the failure or
refusal of the custodian of the will to present it to the court for probate.
Even if the decedent left no debts and nobody raises any question as to the
authenticity and due execution of the will, none of the heirs may sue for the
partition of the estate in accordance with that will without first securing its allowance or probate by the court, first, because the law expressly provides that "no will
shall pass either real or personal estate unless it is proved and allowed in the proper
court"; and, second, because the probate of a will, which is a proceeding in
rem, cannot be dispensed with and substituted by any other proceeding, judicial or
extrajudicial, without offending against public policy designed to effectuate the
testator's right to dispose of his property by will in accordance with law and to
protect the rights of the heirs and legatees under the will thru the means provided
by law, among which are the publication and the personal notices to each and all of
said heirs and legatees. Nor may the court approve and allow the will presented in
evidence in such an action for partition, which is one in personam, any more than it
could decree the registration under the Torrens system of the land involved in an
ordinary action forreivindicacion or partition.
We therefore believe and so hold that section 1 of Rule 74, relied upon by the
Court of Appeals, does not sanction the procedure adopted by the respondent.
The case of Leao vs. Leao (25 Phil., 180), cited by the Court of Appeals, like
section 1 of Rule 74, sanctions the extrajudicial partition by the heirs of the
properties left by a decedent, but not the nonpresentation of a will for probate. In
that case one Paulina Ver executed a will on October 11, 1902, and died on
November 1, 1902. Her will was presented for probate on November 10, 1902, and
was approved and allowed by the Court on August 16, 1904. In the meantime, and
on November 10, 1902, the heir 3 went ahead and divided the properties among
themselves and some of them subsequently sold and disposed of their shares to
third persons. It does not affirmatively appear in the decision in that case that the
partition made by the heirs was not in accordance with the will or that they in any
way disregarded the will. In closing the case by its order dated September 1, 1911,
the trial court validated the partition, and one of the heirs, Cunegunda Leao,
appealed. In deciding the appeal this Court said:
"The principal assignment of error is that the lower court committed an error in
deciding that the heirs and legatees of the estate of Da. Paulina Ver had

voluntarily divided the estate among themselves." In resolving that question this
Court said:
"In view of the positive finding of the judge of the lower court that there had been
a voluntary partition of the estate among the heirs and legatees, and in the absence
of positive proof to the contrary, we must conclude that the lower court had some
evidence to support its conclusion."
Thus it will be seen that as a matter of fact no question of law was raised and
decided in that case. That decision cannot be relied upon as an authority for the
unprecedented and unheard of procedure adopted by the respondent whereby she
seeks to prove her status as an acknowledged natural child of the decedent by his
will and attempts to nullify and circumvent the testamentary dispositions made by
him by not presenting the will to the court for probate and by claiming her legitime
as an acknowledged natural child on the basis of intestacy; and that in the face of
express mandatory provisions of the law requiring her to present the will to the
court for probate.
In the subsequent case of Riosa vs. Rocha (1926), 48 Phil. 737, this Court
departed from the procedure sanctioned by the trial court and impliedly approved by
this Court in the Leano case, by holding that an extrajudicial partition is not proper
in testate succession. In the Riosa case the Court, speaking thru Chief Justice
Avancena, held:
"1.Extrajudicial Partition; Not Proper in Testate Succession.Section 596 of
the Code of Civil Procedure, authorizing the heirs of a person who died intestate to
make extrajudicial partition of the property of the deceased, without going into any
court of justice, makes express reference to intestate succession, and therefore
excludes testate succession.
"2.Id.; Effects of; Testate Succession.In the instant case, which is a testate
succession, the heirs made an extrajudicial partition of the estate and at the same
time instituted proceeding for the probate of the will and the administration of the
estate. When the time came for making the partition, they submitted to the court
the extrajudicial partition previously made by them, which the court
approved. Held: That for the purposes of the reservation and the rights and
obligations created thereby, in connection with the relatives benefited, the property
must not be deemed transmitted to the heirs from the time the extrajudicial
partition was made, but from the time said partition was approved by the court."
(Syllabus.)

The Court of Appeals also cites section 6 of Rule 124, which provides that if the
procedure which the court ought to follow in the exercise of its jurisdiction is not
specifically pointed out by the Rules of Court, any suitable process or mode of
proceeding may be adopted which appears most conformable to the spirit of the said
Rules. That provision is not applicable here for the simple reason that the procedure
which the court ought to follow in the exercise of its jurisdiction is specifically
pointed out and prescribed in detail by Rules 74, 76, and 77 of the Rules of Court.
The Court of Appeals also said "that if this case is dismissed, ordering the filing
of testate proceedings, it would cause injustice, inconvenience, delay, and much
expense to the parties." We see no injustice in requiring the plaintiff not to violate
but to comply with the law. On the contrary, an injustice might be committed
against the other heirs and legatees mentioned in the will if the attempt of the
plaintiff to nullify said will by not presenting it to the court for probate should be
sanctioned. As to the inconvenience, delay, and expense, the plaintiff herself is to
blame because she was the custodian of the will and she violated the duty imposed
upon her by sections 2, 4, and 5 of Rule 76, which command her to deliver said will
to the court on pain of a fine not exceeding P2,000 and of imprisonment for contempt
of court. As for the defendant, he is not complaining of inconvenience, delay, and
expense, but on the contrary he is insisting that the procedure prescribed by law be
followed by the plaintiff.
Our conclusion is that the Court of Appeals erred in declaring the action
instituted by the plaintiff to be in accordance with law. It also erred in awarding
relief to the plaintiff in this action on the basis of intestacy of the decedent
notwithstanding the proven existence of a will left by him and solely because said
will has not been probated due to the failure of the plaintiff as custodian thereof to
comply with the duty imposed upon her by the law.
It is apparent that the defendant Ernesto M. Guevara, who was named executor
in said will, did not take any step to have it presented to the court for probate and
did not signify his acceptance of the trust or refusal to accept it as required by
section 3 of Rule 76 (formerly section 627 of the Code of Civil Procedure), because
his contention is that said will, insofar as the large parcel of land in litigation is
concerned, has been superseded by the deed of sale exhibit 2 and by the subsequent
issuance of the Torrens certificate of title in his favor.
II
This brings us to the consideration of the second question, referring to the
efficacy of the deed of sale exhibit 2 and the effect of the certificate of title issued to

the defendant Ernesto M. Guevara. So that the parties may not have litigated here
in vain insofar as that question is concerned, we deem it proper to decide it now and
obviate the necessity of a new action.
The deed of sale exhibit 2 executed by and between Victorino L. Guevara and
Ernesto M. Guevara before a notary public on July 12, 1933, may be divided into
two parts: (a) insofar as it disposes of and conveys to Ernesto M. Guevara the
sourthern half of Victorino L. Guevara's hacienda of 259-odd hectares in
consideration of P1 and other valuable considerations therein mentioned;
and (b)insofar as it declares that Ernesto M. Guevara became the owner of the
northern half of the same hacienda by repurchasing it with his own money from
Rafael T. Puzon.
A.As to the conveyance of the southern half of the hacienda to Ernesto M.
Guevara in consideration of the latter's assumption of the obligation to pay all the
debts of the deceased, the Court of Appeals found it to be valid and efficacious
because: " (a) it has not been proven that the charges imposed as a condition is [are]
less than the value of the property; and (b) neither has it been proven that the defendant did not comply with the conditions imposed upon him in the deed of
transfer." As a matter of fact the Court of Appeals found: "It appears that the
defendant has been paying the debts left by his father. To accomplish this, he had to
alienate considerable portions of the abovementioned land. And we cannot brand
such alienation as anomalous unless it is proven that they have exceeded the value
of what he has acquired by virtue of the deed of July 12, 1933, and that of his
corresponding share in the inheritance." The finding of the Court of Appeals on this
aspect of the case is final and conclusive upon the respondent, who did not appeal
therefrom.
B.With regard to the northern half of the hacienda, the findings of fact and of
law made by the Court of Appeals are as follows:
"The defendant has tried to prove that with his own money, he bought from
Rafael Puzon one-half of the land in question, but the Court a quo,after considering
the evidence, found it not proven; we hold that such conclusion is well founded. The
acknowledgment by the deceased, Victorino L. Guevara, of the said transactions,
which was inserted incidentally in the document of July 12, 1933, is clearly belied
by the fact that the money paid to Rafael Puzon came from Silvestre P. Coquia, to
whom Victorino L. Guevara had sold a parcel of land with the right of repurchase.
The defendant, acting for his father, received the money and delivered it to Rafael
Puzon to redeem the land in question, and instead of executing a deed of redemption

in favor of Victorino L. Guevara, the latter executed a deed of sale in favor of the
defendant.
"The plaintiff avers that she withdrew her opposition to the registration of the
land in the name of the defendant, because of the latter's promise that after paying
all the debts of their father, he would deliver to her and to the widow their
corresponding shares. As their father then was still alive, there was no reason to
require the delivery of her share and that was why she did not insist on her
opposition, trusting on the reliability and sincerity of her brother's promise. The
evidence shows that such promise was really made. The registration of land under
the Torrens system does not have the effect of altering the laws of succession, or the
rights of partition between coparceners, joint tenants, and other cotenants nor does
it change or affect in any other way any other rights and liabilities created by law
and applicable to unregistered land (sec. 70, Land Registration Law). The plaintiff
is not, then, in estoppel, nor can the doctrine of res judicata be invoked against her
claim. Under these circumstances, she has the right to compel the defendant to
deliver her corresponding share in the estate left by the deceased, Victorino L.
Guevara."
In his tenth to fourteenth assignments of error the petitioner assails the
foregoing findings of the Court of Appeals. But the findings of fact made by said
court are final and not reviewable by us on certiorari. The Court of Appeals found
that the money with which the petitioner repurchased the northern half of the land
in question from Rafael Puzon was not his own but his father's, it being the proceeds
of the sale of a parcel of land made by the latter to Silvestre P. Coquia. Said court
also found that the respondent withdrew her opposition to the registration of the
land in the name of the petitioner upon the latter's promise that after paying all the
debts of their father he would deliver to her and to the widow their corresponding
shares. From these facts, it results that the interested parties consented to the
registration of the land in question in the name of Ernesto M. Guevara alone subject
to the implied trust on account of which he is under obligation to deliver and convey
to them their corresponding shares after all the debts of the original owner of said
land had been paid. Such finding does not constitute a reversal of the decision and
decree of registration, which merely confirmed the petitioner's title; and in the
absence of any intervening innocent third party, the petitioner may be compelled to
fulfil the promise by virtue of which he acquired his title. That is authorized by
section 70 of the Land Registration Act, cited by the Court of Appeals, and by the

decision of this Court in Severino vs. Severino, 44 Phil., 343, and the cases therein
cited.
Upon this phase of the litigation, we affirm the finding of the Court of Appeals
that the northern half of the land described in the will exhibit A and in original
certificate of title No. 51691 still belongs to the estate of the deceased Victorino L.
Guevara. In the event the petitioner Ernesto M. Guevara has alienated any portion
thereof, he is under obligation to compensate the estate with an equivalent portion
from the southern half of said land that has not yet been sold. In other words, to the
estate of Victorino L. Guevara still belongs one half of the total area of the land
described in said original certificate of title, to be taken from such portions as have
not yet been sold by the petitioner, the other half having been lawfully acquired by
the latter in consideration of his assuming the obligation to pay all the debts of the
deceased.
Wherefore, that part of the decision of the Court of Appeals which declares in
effect that notwithstanding exhibit 2 and the issuance of original certificate of title
No. 51691 in the name of Ernesto M. Guevara, one half of the land described in said
certificate of title belongs to the estate of Victorino L. Guevara and the other half to
Ernesto M. Guevara in consideration of the latter's assumption of the obligation to
pay all the debts of the deceased, is hereby affirmed; but the judgment of said court
insofar as it awards any relief to the respondent Rosario Guevara in this action is
hereby reversed and set aside, and the parties herein are hereby ordered to present
the document exhibit A to the proper court for probate in accordance with law,
without prejudice to such action as the provincial fiscal of Pangasinan may take
against the responsible party or parties under section 4 of Rule 76. After the said
document is approved and allowed by the court as the last will .and testament of the
deceased Victorino L. Guevara, the heirs and legatees therein named may take such
action, judicial or extrajudicial, as may be necessary to partition the estate of the
testator, taking into consideration the pronouncements made in part II of this
opinion. No finding as to costs in any of the three instances.
Yulo, C. J., and Hontiveros,1 J., concur.
BOCOBO, J., concurring:
I concur in the result. Extrajudicial settlement by agreement among the heirs is
authorized by section 1 of Rule 74 only "if the decedent left no debts." In this case,
according to the findings of the Court of Appeals, Ernesto M. Guevara "has been
paying the debts left by his father." It is true that said Ernesto M. Guevara, in
consideration of the conveyance to him of the southern half of the hacienda, as-

sumed all the debts of the deceased, but this agreement is binding only upon the
parties to the contract but not upon the creditors who did not consent thereto. (Art.
1205, Civil Code.) There being debts when the father died, section 1 of Rule 74 is
not applicable.
MORAN,J., concurring in part and dissenting in part:
I would be agreeable to the majority decision but for a statement therein made
which in my view repeals by an erroneous interpretation the provisions of Rule 74,
section 1, of the Rules of Court, which reads as follows:
"EXTRAJUDICIAL SETTLEMENT BY AGREEMENT BETWEEN HEIRS.If the decedent
left no debts and the heirs and legatees are all of age, or the minors are represented
by their judicial guardians, the parties may, without securing letters of
administration, divide the estate among themselves as they see fit by means of a
public instrument filed in the office of the register of deeds, and should they
disagree, they may do so in an ordinary action of partition. If there is only one heir
or one legatee, he may adjudicate to himself the entire estate by means of an
affidavit filed in the office of the register of deeds. It shall be presumed that the
decedent left no debts if no creditor files a petition for letters of administration
within two years after the death of the decedent."
The majority holds that under this provision, the heirs and legatees, even if all of
them are of age, and there are no debts to be paid, cannot make an extrajudicial
settlement of the estate left by the decedent without first submitting in court for
probate the will left by the testator. This erroneous interpretation clearly overlooks
not only the letter and the spirit but more specially the whole background of the
provision.
It is admitted that the provision has been taken from section 596 of Act No. 190
but with a modification consisting in that it is made to apply in testate succession.
Said section 596 reads:
"Settlement of Certain Intestate Estates without Legal Proceedings.Whenever all the
heirs of a person who died intestate are of lawful age and legal capacity, and there are no
debts due from the estate, or all the debts have been paid the heirs may, by agreement duly
executed in writing by all of them, and not otherwise, apportion and divide the estate
among themselves, as they may see fit, without proceedings in court."

It must be observed that the procedure contemplated in this legal provision is

completely extrajudicial and the same procedure intended in section 1 of Rule 74
above quoted which is captioned "Extrajudicial Settlement by Agreement * * *".

Justice Laurel, who was one of the members of this Court when the new Rules were
promulgated, in commenting upon Rule 74, said:
"Rule 74. Summary Settlement of Estates.The corresponding provisions in the
Code of Civil Procedure are sections 596-598. There is substantial analogy between
the provisions of the Code of Civil Procedure and those of Rule 74, save that:
(1) Under section 1 of Rule 74, there may be extrajudicial settlement whether a
person died testate or intestate, while under section 596 of the Code of Civil
Procedure extrajudicial settlement can be had only when a person died intestate. (2)
Under Rule 74, section 1, extrajudicial settlement may take place 'if the decedent
left no debts,' while under section 596 of the Code of Civil Procedure it may take
place 'when there are no debts due from the estate, or all the debts have been paid.'
(3) Under section 596 of the Code of Civil Procedure, extrajudicial settlement may
take place when all the heirs are of lawful age and legal capacity, while under
section 1 of Rule 74 it may take place when 'the heirs and legatees are all of legal
age, or the minors are represented by their judicial guardians'. (4) Unlike the Code
of Civil Procedure, section 596, section 1 of Rule 74 requires the extrajudicial
agreement to be filed in the office of the register of deeds; provides that should the
heirs disagree, 'they may do so in an ordinary action of partition', and that 'if there
is only one heir or one legatee, he may adjudicate to himself the entire estate by
means of an affidavit filed in the office of the register of deeds', and that 'it shall be
presumed that the decedent left no debts if no creditor files a petition for letters of
administration within two years after the death of the decedent" [ (Italics
mine) ; Laurel, Procedural Reform in the Philippines, pp.137-138].
The phrase "extrajudicial settlement" unquestionably means liquidation and
distribution of the estate without judicial proceeding. In other words, even in cases
of testate succession, the heirs and legatees, when they are all of age or Are
represented by their judicial guardians, and there are no debts to be paid, are
allowed by section 1 of Rule 74 of the Rules of Court to liquidate and distribute
among themselves the estate left by the decedent and need not go to court even for
the probate of the will. Unless legal terms mean nothing, this is clearly what is
meant in said provision by the words "extrajudicial settlement" and by the clause "*
* * the parties may, without securing letters of administration, divide the estate
among themselves as they see fit" * * *. When judicial administration is made
unnecessary by the provision, the inevitable implication is that the probate of the
will is also unnecessary, the probate having no other object than administration for

purposes of distribution according to the provisions of the will. That is why section 4
of Rule 78 provides :
"Estate, How Administered.When a will is thus allowed, the court shall grant
letters testamentary, or letters of administration with the will annexed, and such
letters testamentary or of administration shall extend to all the estate of the
testator in the Philippines. Such estate, after the payment of just debts and
expenses of administration, shall be disposed of according to such will, so far as such
will may operate upon it; and the residue, if any, shall be disposed of as is provided
by law in cases of estates in the Philippines belonging to persons who are
inhabitants of another state or country."
If judicial administration and distribution is made unnecessary by section 1 of
Rule 74, then, I repeat, the probate of the will being purposeless, becomes
unnecessary. If the parties have already divided the estate in accordance with the
will, the probate of the will is a useless ceremony. If they have divided the estate in
a different manner, the probate of the will is worse than useless; it is ridiculous. The
following words of this Court in a previous case may well be here reiterated:
"These sections provide for the voluntary division of the whole property of the
decedent without proceedings in court. The provisions which they contain are
extremely important. The wisdom which underlies them is apparent. It is the
undisputed policy of every people which maintains the principle of private
ownership of property that he who owns a thing shall not be deprived of its
possession or use except for the most urgent and imperative reasons and then only
so long as is necessary to make the rights which underlie those reasons effective. It
is a principle of universal acceptance which declares that one has the instant right
to occupy and use that which he owns, and it is only in the presence of reasons of the
strongest and most urgent nature that that principle is prevented from
accomplishing the purpose which underlies it. The force which gave birth to this
stern and imperious principle is the same force which destroyed. the feudal
despotism and created the democracy of private owners.
"These provisions should, therefore, be given the most liberal construction so that
the intent of the framers may be fully carried out. They should not be straitened or
narrowed but should rather be given that widenessand fullness of application
without which they cannot produce their most beneficial effects.* * * The purpose
which underlies them, as we have already intimated, is to put into one's hands the
property which belongs to him not only at the earliest possible moment but also

with the least possible expense. By permitting the partition and division without
proceedings in court no time is lost and substantially all expense and waste are
saved. This is as it should be. The State fails wretchedly in its duty to its citizens if
the machinery furnished by it for the division and distribution of the property of a
decedent is so cumbersome, unwieldly and expensive that a considerable portion of
the estate is absorbed in the process of such division."
*
*
*
(McMicking vs. Sy Conbieng, 21 Phil., 211; 219-220).
Indeed, there can be no valid reason why the probate of a will may not be
dispensed with by agreement of all the parties interested and the estate left by the
decedent settled extrajudicially among all the heirs and legatees, as is now provided
in section 1 of Rule 74. It is well recognized that the allowance of a will gives
conclusiveness merely to its due execution, but not to the intrinsic validity of its
provisions which are governed by the substantive law regarding descent and
distribution. If so, why cannot all the parties interested agree, without going to
court, that the will of the decedent is in form valid (this being the only point to be
litigated in a probate proceeding), and that they will divide the inheritance in the
manner acceptable to them? The procedure would not be against public policy or the
law placing in the hands of the courts the probate of wills, because what the courts
are enjoined to do for the benefit of the parties, the latter have already done. As long
as the extrajudicial partition of the estate does not affect the rights of third parties
and is not rendered invalid by any provision of the substantive law, no possible
objection can be raised thereto. On practical considerations, it would be useless to
force the parties, at their expense, to go thru the formality of probating a will and
dividing the estate in accordance therewith, because as soon as the routine is over,
they are of course free to make such transfers to one another as will be necessary to
effect a partition which they would have made if they were allowed to settle the
estate extrajudicially. It is true that there are provisions in the Rules of Court
compelling the delivery of a will to the competent court and punishing omissions to
do so, but said provisions are calculated to protect the interests of the persons
entitled to share in the inheritance. The latter may waive such benefit. This waiver
cannot be said to be a withdrawal or diminution of the jurisdiction of the court,
since it only implies a desire of the parties not to litigate. The fear that "absent
legatees and devisees, or such of them as may have no knowledge of the will, could
be cheated of their inheritance thru the collusion of some of the heirs who might
agree to the partition of the estate among themselves to the exclusion of others", is
wisely provided against in the requirement of the Rule that all the parties

interested and all the beneficiaries under the will should be parties to the extrajudicial settlement. The participation of all the interested parties excludes the
probability of fraud or collusion and, even in that eventuality, the aggrieved
beneficiaries are not without adequate remedy for the voidance of the partition
under the Civil Code.
And this is in accordance with the weight of authority in this and other
jurisdictions. In Leao vs. Leao (25 Phil., 180), all the heirs and legatees have
made an extrajudicial partition of the estate left by the decedent and then filed the
will in court which was probated. Nine years of costly probate proceedings have
followed after which the extrajudicial partition was made known to court. Such
extrajudicial partition was objected to by one party upon the ground that it was not
in conformity with the provisions of the will. But the trial Court held:
"Naturally the partition made by the heirs voluntarily and spontaneously must produce
and has produced a legal status, which cannot be annulled merely for the caprice of one
person. And it cannot be said that, because the partition was not made in accordance with
the will, if such be the case, the latter has to be annulled, for by voluntarily and
spontaneously concurring therein they implicitly renounced the effects of said will, of which
they were'aware."On appeal, this Court affirmed the ruling with the following

pronouncement:

"In view of the positive finding of the judge of the lower court that there had been a
voluntary partition of the estate among the heirs and legatees and in the absence of positive
proof to the contrary, we must conclude that the lower court had some evidence to support
his conclusion. If the heirs and legatees had voluntarily divided the estate among themselves, then their division is conclusive, unless and until it is shown that there were debts
existing against the estate which had not been paid. No claim is made whatever by third
parties nor objections of any character are made by others than the heirs against said
partition. We see no reason why the heirs and legatees should not be bound by their
voluntary acts." (Pages 183-184).

This case furnishes precisely a valuable experience as to the practical wisdom

underlying the procedure established in section 1 of Rule 74. After the will was
probated and after nine years of costly administration proceedings, nothing
absolutely nothingwas accomplished by the court except to make the belated
pronouncement that the extrajudicial partition made by the parties prior to the
institution of the proceedings was proper and binding upon them. Thus, the whole
proceedings for nine years have proved no more than a futile chronicle of wasted
time and money for the. parties and the court. This disgraceful experience could not

and did not pass unnoticed to the members of this Court wljo drafted the new Rules
of Court. The solemn admonition made by this Court in a previous case
(McMicking vs. Sy Conbieng, supra) when it said that "the State fails wretchedly in
its duty to its citizens if the machinery furnished by it for the division and
distribution of the property of a decedent is so cumbersome, unwieldly aiid
expensive that a considerable portion of the estate is absorbed in the process of such
division", rang with re-echoing insistence and was heeded to when the new Rules of
Court was drafted and promulgated. The fundamental policy pervading the whole
system of procedure adopted in said Rules is speed, economy and justice. Thus,
features of procedure were done away with when, without them, the same purpose
may be achieved. The result is brevity and simplicity of procedure with, such
guarantees as are necessary to assure due process. And to remedy such evil as is
disclosed in the Leafio case, a completely extrajudicial settlement is allowed even in
testate succession with the probate of the will dispensed with, when the heirs and
legatees who are all of age or represented by their judicial guardians, so agree, and
there are no debts to be paid. Thus, the scope of section 596 of Act No. 190 was
amplified and with it the ruling of this Court in Riosa vs. Rocha (48 Phil. 737). The
procedure is in consonance with the almost unanimous weight of authority in other
jurisdictions:

"The complaint, to which a demurrer was sustained, shows that all the persons
interested in a decedent's estate, as widow, heirs, distributees, legatees, or devisees, includ ing the person appointed executrix by the will, and the husbands of femes covert,(all being
adults), by agreement divided among themselves all the property of the estate according to
the direction of the will, paid off all debts against the estate, and delivered the note
described to the plaintiff, as a part of her share; and all this was done without probate of
the will, or administration of the estate. The effect of such a division was to invest the
plaintiff with an equitable title to the note. In the absence' of the will, the decisions of this
court, heretofore made, would meet every argument in favor of an opposite conclusion.
(Anderson vs. Anderson,
37
Ala.,
683;
Marshall vs. Crow,
29
Ala.,
278;
Vanderveer vs. Alston, 16 Ala., 494; Miller vs. Eatman, 11 Ala., 609). Does the presence of
an unprobated will, as a feature of this case, take it out of the principle of those de cisions?
We can perceive no sufficient reason why it should. All the parties interested, or to be
affected, may as well by agreement divide property, where there is a will, without employing
the agency of courts, as in case of intestacy. Parties, competent to act, ought to do that,
without the agency of courts, which the courts would ultimately accomplish.

To deny them the privilege of so doing, would manifest a judicial abhorrence of

harmony. By the probate of the will, the claims of heirs and distributees and of the

widow, would have been subordinated to the directions of the will. This has been
accomplished by agreement. There being no debts, the executrix would have had no
other duty to perform, than to divide the property according to the will. This, too,
has been done by agreement of competent parties. All the ends and objects of
judicial proceedings have been accomplished, by agreement of the parties; and that
agreement must be effective." (Carter vs. Owens, 41 Ala., 215; 216-217).
"The absence of sound objection on this ground, to a contract having for its sole
purpose the disposition of property in a manner different from that proposed by a
testator, even where the contract contemplates the rejection of the will when offered
for probate or its setting aside when admitted to probate, when it is entirely free
from fraud, and is made by all the parties in interest, may be freely conceded. As
has often been substantially said, the public generally has no interest in the matter
of the probate of. a will; and only those interested in the estate under the will or
otherwise are affected by such a contract. If they all agree upon some course to be
followed, and their contract is otherwise free from contemplated fraud or violation of
any law, no one else has any such interest as warrants complaint. Such was the
character of contract involved in Spangenberg vs. Spangenberg (App.), 126 Pac, 379,
especially relied on by plaintiff here, where the contract purported to affect only
such property of the deceased as should in fact be received by the parties thereto. In
Estate of Garcelon, 104 Cal., 570; 38 Pac, 414; 32 L. R. A., 595; 43'Am. St. Rep., 134,
another case much relied on by plaintiff, a contract by an heir to refrain from
contesting a will was involved. It was said that the contract was one that concerned
the parties alone, and one that did not appear to be against public policy."
(Gugolz vs. Gehrkens, 130 Pac. Rep., 8, 10; 164 Cal., 596).
"The question of public policy is introduced. The disposition of one's property
after death is controlled by statute. One of the next of kin has no vested interest in
such property. In cases of intestacy, a next of kin has such interest as the statute
declares. In case there is a will, he has an interest which gives him a standing and
right to contest the will. This right is his alone; in it the public has no interest; he
may refrain from exercising it, or he may dispose of it as he wishes, by release or
assignment or settlement, and the law of public policy is not offended."(In re Cook's
Will, 217 N. Y. S., 176, 180-181).
"Agreement.'It has been definitely decided by the courts of this state, and of
many other states, that the beneficiaries under a will have a right to agree among
themselves upon any distribution they see proper of the property bequeathed to

them. * * * That holding is based upon the proposition that the property is theirs.
No one else is interested in its disposition, and they may, with propriety, make any
distribution of it that suits them, so long as they do not invade the rights of other
parties or infringe some rule of public policy'." (Fore vs. McFadden, 276 N. W., 327;
329).
"The first assignment of error presented by appellants complains of the action of
the court in sustaining exceptions to averments asking the enforcement of the
agreement that the will should not be probated, and that the estate should be
divided among the parties as they would be entitled as heirs at law of the deceased,
the proponent of the will surrendering thereby his rights as principal legatee. This
assignment must be sustained. It cannot be seen that the agreement is contrary to
public policy. Parties may make any contract with reference to their property rights
that is not illegal, may adjust by compromise their differences and disputes
concerning the same and, as they bind themselves, so shall they be bound. It is
difficult to understand why this cannot be effected by an agreement not to probate a
will, or how it interferes with public policy. The power to litigate and to establish a
right by appeal to the courts is as much the subject of contract as any other right in
property. Such adjustments by contract are favored by the law and the courts, and
are not deemed to be an unwarranted interference with the jurisdiction of the
courts, or against public policy. On the contrary, public policy favors them.
"Appellants have cited a case in point,the case of Phillips v. Phillips, 8 Watts,
197, in which it is held competent for devisees and legatees to bind themselves by a
written or parol agreement to destroy a will before probate, and that a party to the
agreement would be estopped from claiming any interest under the will. The court
says: 'It cannot admit of doubt that before probate the parties in interest under a
will would have the right to set aside a will, and such an act would be favored, when
the object was to avert a family controversy'. The agreement that the will should not
be probated, and that the parties would take the property as heirs at law of the
deceased, destroyed the legal effect of the will; and it could not thereafter have legal
existence in conferring rights upon the legatees." (String-fellow vs. Early, 40 SW.
871, 873-874; 15 Tex. Civ. App., 597).
"The contention that the complaint does not state a cause of action, because the
contract sued on is against public policy, and therefore void, is made here for the
first time. It is to the interest of the public generally that the right to make contract
should not be unduly restricted, and no agreement will be pronounced void, as being
against public policy, unless it clearly contravenes that which has been declared by

statutory enactment or by judicial decisions to be public policy, or unless the

agreement manifestly tends in some way to injure the public. Whether or not a
contract in any given case is contrary to public policy is a question of law, to be
determined from the circumstances of each particular. case. Smith vs. Du Bose, 78
Ga., 413; 3 SE., 309-316; 6 Am. St. Rep., 260; Weber vs. Shay, 56 Ohio St., 116; 46
NE., 377; 37 L. R. A., 230; 60 Am. St. Rep., 743; Pierce vs. Randolph, 12 Tex., 290;
Printing Numerical Registering Co. vs. Sampson, 19 L. R. Eq. Cas., 465.
"The contract in controversy is in effect but an agreement whereby the parties
thereto, 'because of their love and affection for one another' and 'being desirous of
avoiding litigation over the estate' of their father 'in case of his death,' agreed to
ignore his will in the event that he made one, and then share his estate equally as if
he had died intestate. In other words, the contract was but an agreement of heirs
apparent not to contest the will of an ancestor. There is nothing to be found in our
code or statutory law prohibiting the making and enforcement of such a contract,
and it has been held in this state that a contract, made after the death of the
deceased, not to contest his will, is purely personal to the parties making it, that it
is not against public policy, and that, when fairly made, it will be enforced."
(Spangenberg vs. Spangenberg, 126 Pac. Rep., 379, 382; 19 Cal. App., 439).
"Probate Dispensed With.Probate of a will may be dis-pened with by an
agreement between the persons interested ; or it may be dispensed with where the
testator, before his death, conveyed to the devisees all the property which he had
devised to them, or where the will makes no other disposition of the testator's
property than the law would have done had he died intestate, and the rights sought
to be established are admitted by all concerned. But where the language of the will
expressly invokes the jurisdiction of the probate court the fact that no
administration is necessary does not affect the power of the court to probate the
will." (68 C. J., pp. 877-878).
"Agreement between Persons Interested: a. Requisites and Validity. (1) In General.
It has been held that, since the nature of a probate proceeding is one in rem, the
parties cannot submit a controversy arising therein to arbitration. The law, however,
favors the settlement, in good faith, of will contests, by a so-called 'family
settlement', although it changes the mode of disposition of the estate; and, therefore,
subject to the limitation that a contestant cannot compromise anything beyond his
own personal interest in the contest, persons, such as devisees, legatee, heirs, or
next of kin, having interests in the will or estate, sufficient to entitle them to oppose

probate or contest the will, may enter into an agreement which, in the absence of
fraud or misrepresentation, is valid and binding on all the parties thereto, whereby
they waive probate of the will and bind themselves to abide by its provisions, or
whereby they agree that the will is not to be probated or is to be superseded or
destroyed; or whereby any controversy relative to the probate or contest of the will is
compromised or settled, and a contest is avoided, whether or not there were, in fact,
valid grounds for the contest. Such an agreement, in order to be valid, must not
exclude anyone entitled under the will, must be entered into by all the persons
affected thereby, and all the parties thereto must be competent to make the
agreement, and either they or their representative must fully execute it, and, under
some statutes, it must be properly approved by the court." ([Italics supplied] 68 C.
J., pp. 909-910).
"As to Probate.The operation and effect of the agreement may be not to
supersede the provisions of the will, but to carry out its provisions without a
probate, and under such an agreement the parties are precluded from denying the
probate, or insisting on the invalidating of the will for want of probate. So, also, a
person who agrees not to contest the will is precluded from opposing probate; or the
probate of a will may be dispensed with, and the persons interested in the estate
under the will given at least an equitable interest in the property, where they, being
under no disability, divide the estate, pursuant to an agreement among themselves.
Where the effect of the agreement of all interested parties is to repudiate or renounce
the will, it will not be probated, especially where the agreement expressly so
provides; but it has been held that, where the executor, defending a torn will,
agrees, for a consideration, not to probate it, the court should not refuse probate
without notifying other beneficiaries and requiring testimony as to the tearing of the
will by the testator. Probate, however, is not prevented by an agreement executed by
a part only of the beneficiaries, and the parties to such agreement are not prevented
thereby from taking under the will which is probated by another interested person."
([Italics supplied] 68 C. J., pp 914-915).
"Thus, where the parties, being in doubt as to the instrument being construed as
a will, and for the purpose of saving a family controversy and for the purpose of dividing the estate, enter into a compromise and settlement agreement, under the
terms of which the entire estate is to be, and has in part been, divided, and agree
that the instrument shall not be offered for probate, it is sufficient to prevent a
probate." (Brownvs. Burk, 26 NW [2d ed.], 415).

"Validity of Agreements to Dispense with Probate or to Modify, or Set Aside Will.

Though in some jurisdictions an agreement to dispense with the probate of a will
has been declared to be against public policy and void, in a majority of the decisions
on the point it has been held that all the persons interested in a decedent's estate
may by agreement divide the estate among themselves, without probating such
decedent's will or administering the estate, and the validity of a contract having for
its sole purpose the disposition of property in a manner different from that proposed
by a testator, even where the contract contemplates the rejection of the will when
offered for probate or its setting aside when admitted to probate, when it is entirely
free from fraud, and is made by all the parties in interest, would seem to be freely
conceded. Thus it has been held that all the parties in interest may agree to
eliminate from a will a clause providing for survivorship among them. But an
agreement to resist the probate of a will and procure it to be set aside so as to cut off
the interest of one who is not a party to such agreement is against public policy, Nor
does the right of all the parties in interest to set aside or disregard a will extend to
the case of an active trust, for a definite term, created by a testator as he deems
proper for the protection of his beneficiaries. A contract between the next of kin of a
decedent, that they will each have a certain portion of the estate, does not amount
to an agreement to divide the estate without probating the will." (28 R. C. L., pp.
357-358).
The minority decision pointed out in the last quotation from the Ruling Case Law
(Vol. 28, pp. 357-358) is from the Supreme Court of only one Statethat of
Wisconsin, in re Will of Dardis (135 Wis., 457; 115 NW., 332). All the other States
held the contrary doctrine that is now embodied in section 1 of Kiile 74.
Commenting upon the Wisconsin rule, the Editor of the L. R. A. says the following:
"No case has been found other than Re Dardis wherein any court passed upon the
validity of a stipulation to secure the denial to probate of a will theretofore offered
for probate, on the ground that the testator was mentally incompetent to make a
will at the time of its execution. The decision of the court is based upon the doctrine
therein enunciated, that proceedings to probate a will are proceedings in rem,which
public interest demands should be pursued to a final adjudication, regardless of the
wishes of the interested parties. In this connection and with reference to this
broader question, it is of interest to note that courts of other jurisdictions, although
generally recognizing that proceedings to probate a will are proceedings in rem, hold
that the proceeding is inter partes to the extent that all the parties in interest may

control the probate proceedings, even to the extent of doing away with the probate."
(23 L. R. A. [N.S.],p. 783).

For the sake of fixity in judicial policy, this Court in the exercise of its constitutional powers, has
solemnly given a form of a rulesection 1, Rule 74to what was merely the consensus of judicial
opinion. We cannot now repudiate the procedure outlined in said provision unless we amend it by
another rule.
The majority, however, expresses fear that abuses may easily be committed under the Rules. Such
fears have always been the bugbear set up against all task of procedural reforms. To be sure, there
has never been any provision of law that is not liable to abuses. If by a mere possibility of abuse we
are to disregard clear provisions of a procedural law, the result would be not only the abrogation of
all laws but also the abolition of all courts. When a procedural law is calculated to remedy an evil
under a specific situation therein contemplated, it must be deemed good even if other situations may
be simulated or falsified and placed within its purview. And when that law is duly enacted, it is no
concern of the courts to pass upon its wisdom, their dutybeing to apply its provisions in a manner
which shall notdefeat the intention underlying it. Laws are promulgated to be obeyed and when they
are abused there are the courts to check up the abuse. Courts must deal with the specific
circumstances of each case and construe the provisions in such a manner as to make it impregnable
if possible to further abuses. This is constructive, not destructive, jurisprudence. This explains why
laws are more often worded so broadly as to lay merely general principlesa skeleton the flesh to
be supplied with judicial decisions. Judicial statemanship requires that courts in deciding judicial
controversies should be careful not to advance opinions which are not necessary to a proper
disposition of the case. Judicial experience has shown that such advanced opinions may not
infrequently place the court in an embarrassing position when a proper case with the proper factual
environment is properly presented with all its angles before the court. Jurisprudence must be
carefully progressive and not impetuously aggressive. For instance, the majority, impressed by the
awful circumstances of the present case, has found it dangerous to hold that the probate of the will
may be dispensed with. While this conclusion is constructive under the peculiar facts of the case, to
generalize it is to make destructive. If a proper case is presented to the court wherein all the heirs
and legatees who are all of age have agreed to dispense with the probate of a will and have actually
made an extrajudicial partition, and if it appears further that each of the recipients is in peaceful
enjoyment of his share in the estate, I am sure that the majority, with the practical wisdom they have
shown in other cases, would not dare disturb the peace enjoyed by such heirs and legatees and
compel them to go into court and litigate.
The majority, without the necessity of holding whether the probate of a will may or may not be
dispensed with under Rule 74, section 1, could have decided this case by stating that said provision is
not applicable, its requirements not being present. And I would be wholly agreeable to this
conclusion because the beneficiaries under the will do not appear to have made an extrajudicial
settlement of the estate left by the deceased Victorino L. Guevara, nor the action brought by the
natural daughter, Rosario Guevara, is one for partition against all such beneficiaries founded either
on an extrajudicial settlement or on the provisions of the will as accepted by all parties to be valid
anol binding. Upon the contrary, Rosario Guevara appears to be wishing to take advantage of the will
in so far as it is favorable to her, and repudiate it in so far as it is favorable to others. Apparently,
Rosario Guevara was in possession of the will and the other heirs and legatees were not aware of its

contents. The situation not being the one contemplated by section 1 of Rule 74, plaintiff may not
invoke its provisions.
Judgment modified.

G.R. No. 168156. December 6, 2006.

HEIRS OF ROSENDO LASAM, Represented by Rogelio Lasam and Atty. Edward P.

Llonillo, petitioners, vs.VICENTA UMENGAN, respondent.
Appeals; The technical requirements for filing an appeal are not sacrosanct.The
technical requirements for filing an appeal are not sacrosanct. It has been held that while
the requirements for perfecting an appeal must be strictly followed as they are considered
indispensable interdictions against needless delays and for orderly discharge of judicial
business, the law does admit of exceptions when warranted by circumstances.
Ejectment; It is well-settled that in ejectment suits, the only issue for resolution is the
physical or material possession of the property involved, independent of any claim of
ownership by any of the party litigants.It is well-settled that in ejectment suits, the only
issue for resolution is the physical or material possession of the property involved,
independent of any claim of ownership by any of the party litigants. However, the issue of
ownership may be provisionally ruled upon for the sole purpose of determining who is
entitled to possession de facto.
Wills; Probate Proceedings; The purported last will and testament of Isabel Cuntapay
could not properly be relied upon to establish petitioners right to possess the subject lot
because, without having been probated, the said last will and testament could not be the
source of any right.The purported last will and testament of Isabel Cuntapay could not
properly be relied upon to establish petitioners right to possess the subject lot because,
without having been probated, the said last will and testament could not be the source of
any right.

Same; Same; A will is essentially ambulatoryat any time prior to the testators death,
it may be changed or revokedand until admitted to probate, it has no effect whatever and
no right can be claimed thereunder.In Caiza v. Court of Appeals, 268 SCRA 640 (1997),
the Court ruled that: [a] will is essentially ambulatory; at any time prior to the testators
death, it may be changed or revoked; and until admitted to probate, it has no effect
whatever and no right can be claimed thereunder, the law being quite explicit: No
will shall pass either real or personal property unless it is proved and allowed in accordance
with the Rules of Court.
Same; Same; The presentation of the will for probate is mandatory and is a matter of
public policy.Dr. Tolentino, an eminent authority on civil law, also explained that
[b]efore any will can have force or validity it must be probated. To probate a will
means to prove before some officer or tribunal, vested by law with authority for that
purpose, that the instrument offered to be proved is the last will and testament of the
deceased person whose testamentary act it is alleged to be, and that it has been executed,
attested and published as required by law, and that the testator was of sound and disposing
mind. It is a proceeding to establish the validity of the will. Moreover, the presentation of
the will for probate is mandatory and is a matter of public policy.
Same; Same; Ownership; The conveyances made by the children of Isabel Cuntapay by
her first marriage of their respective pro indiviso shares in the subject lot to respondent are
valid because the law recognizes the substantive right of heirs to dispose of their ideal share
in the co-heirship and co-ownership among the heirs.Considering that her purported last
will and testament has, as yet, no force and effect for not having been probated, her six
children are deemed to be co-owners of the subject lot having their respective pro
indiviso shares. The conveyances made by the children of Isabel Cuntapay by her first
marriage of their respective pro indiviso shares in the subject lot to respondent are valid
because the law recognizes the substantive right of heirs to dispose of their ideal share in
the coheirship and/co-ownership among the heirs.

PETITION for review on certiorari of the decision and resolution of the Court of
Appeals.
The facts are stated in the opinion of the Court.
Edward P. Llonillo for petitioners.
Romeo C. Calubaquib for respondent.
CALLEJO, SR., J.:

Before the Court is the petition for review on certiorarifiled by the Heirs of Rosendo
Lasam, represented by Rogelio M. Lasam and Atty. Edward P. Llonillo, seeking the
reversal of the Decision dated February 16, 2005 of the Court of Appeals (CA) in
CA-G.R. SP No. 80032. The assailed decision reversed and set aside the decision of
the Regional Trial Court (RTC) of Tuguegarao City, Cagayan and dismissed, for lack
of merit, the complaint for unlawful detainer file by the said heirs against
respondent Vicenta Umengan.
1

The RTC decision affirmed that of the Municipal Trial Court in Cities (MTCC) of
the same city, Branch III, which had rendered judgment in favor of the heirs of
Rosendo Lasam and directed the ejectment of respondent Vicenta Umengan from
the lot subject of litigation.
The present petition likewise seeks the reversal of the CA Resolution dated May
17, 2005 denying the motion for reconsideration filed by the heirs of Rosendo Lasam.
As culled from the records, the backdrop of the present case is as follows
The lot subject of the unlawful detainer case is situated in Tuguegarao City,
Cagayan. It is the eastern half portion of Lot No. 5427 and Lot No. 990. The first lot,
Lot No. 5427 containing an area of 1,037 square meters, is covered by Original
Certificate of Title (OCT) No. 196. The second lot, Lot No. 990 containing an area of
118 sq m, is covered by OCT No. 1032. These lots are registered in the names of the
original owners, spouses Pedro Cuntapay and Leona Bunagan.
In an instrument denominated as Deed of Confirmation and acknowledged before
a notary public on June 14, 1979, the heirs of the said spouses conveyed the
ownership of Lots Nos. 990 and 5427 in favor of their two children, Irene Cuntapay
and Isabel Cuntapay. In another instrument entitled Partition Agreement and
acknowledged before a notary public on December 28, 1979, it was agreed that the
eastern half portion (subject lot) of Lots Nos. 990 and 5427 shall belong to the heirs
of Isabel Cuntapay. On the other hand, the remaining portion thereof (the west
portion) shall belong to the heirs of Irene Cuntapay. The subject lot (eastern half
portion) has an area of 554 sq. m.
Isabel Cuntapay had four children by her first husband, Domingo Turingan,
namely: Abdon, Sado (deceased), Rufo and Maria. When Domingo Turingan passed

away, Isabel Cuntapay remarried Mariano Lasam. She had two other children by
him, namely: Trinidad and Rosendo.
Sometime in January 2001, the heirs of Rosendo Lasam (son of Isabel Cuntapay
by her second husband) filed with the MTCC a complaint for unlawful detainer
against Vicenta Umengan, who was then occupying the subject lot. Vicenta
Umengan is the daughter of Abdon Turingan (son of Isabel Cuntapay by her first
husband).
In their complaint, the heirs of Rosendo Lasam alleged that they are the owners
of the subject lot, having inherited it from their father. Rosendo Lasam was
allegedly the sole heir of the deceased Pedro Cuntapay through Isabel Cuntapay.
During his lifetime, Rosendo Lasam allegedly temporarily allowed Vicenta
Umengan to occupy the subject lot sometime in 1955. The latter and her husband
allegedly promised that they would vacate the subject lot upon demand. However,
despite written notice and demand by the heirs of Rosendo Lasam, Vicenta
Umengan allegedly unlawfully refused to vacate the subject lot and continued to
possess the same. Accordingly, the heirs of Rosendo Lasam were constrained to
institute the action for ejectment.
In her Answer with Counterclaim, Vicenta Umengan specifically denied the
material allegations in the complaint. She countered that when Isabel Cuntapay
passed away, the subject lot was inherited by her six children by her first and second
marriages through intestate succession. Each of the six children allegedly had a pro
indiviso share of 1/6 of the subject lot.
It was further alleged by Vicenta Umengan that her father, Abdon Turingan,
purchased the respective 1/6 shares in the subject lot of his siblings Maria and Sado.
These conveyances were allegedly evidenced by the Deed of Sale dated March 3,
1975, appearing as Doc. No. 88, Page No. 36, Book No. XIV, series of 1975 of the
notarial book of Atty. Pedro Lagui.
Prior thereto, Rufo already sold his 1/6 share in the subject lot to Vicenta
Umengan and her husband as evidenced by the Deed of Sale dated June 14, 1961,
appearing as Doc. No. 539, Page No. 41, Book No. V, series of 1961 of the notarial
book of Atty. Pedro Lagui. Also on June 14, 1961, Abdon donated his 1/6 share in the
subject lot to her daughter Vicenta Umengan as evidenced by the Deed of Donation

appearing as Doc. No. 538, Page No. 41, Book No. V, series of 1961 of the notarial
book of the same notary public.
According to Vicenta Umengan, the children of Isabel Cuntapay by her second
husband (Rosendo and Trinidad Lasam) own only 2/6 portion of the subject lot. She
thus prayed that the complaint for ejectment be dismissed and that the heirs of
Rosendo Lasam be ordered to pay her damages.
The MTCC rendered judgment in favor of the heirs of Rosendo Lasam and
directed the ejectment of Vicenta Umengan. In so ruling, the MTCC gave credence
to the newly discovered last will and testament (entitledTestamento Abierto)
purportedly executed by Isabel Cuntapay where she bequeathed the subject lot to
her son, Rosendo Lasam, thus:
x x x my share 1/5th (one-fifth) of the Cuntapay heirs, bordered on the North by Sr. Elia
Canapi; to the South, by Calle Aguinaldo; to the East, by Calle P. Burgos and the West, by
the late Don Luis Alonso; on the property which is my share stands a house of light
materials where I presently reside; this 1/5th (one-fifth) share of my inheritance from the
Cuntapays I leave to my son Rosendo Lasam and also the aforementioned house of light
material x x x
2

The MTCC reasoned that the heirs of Rosendo Lasam anchored their claim over the
subject lot on the last will and testament of Isabel Cuntapay while Vicenta
Umengan hinged hers on intestate succession and legal conveyances. Citing
jurisprudence and Article 1080 of the Civil Code, the MTCC opined that testacy
was favored and that intestacy should be avoided and the wishes of the testator
should prevail. It observed that the last will and testament of Isabel Cuntapay was
not yet probated as required by law; nonetheless, the institution of a probate
proceeding was not barred by prescription.
3

With the finding that the subject lot was already bequeathed by Isabel Cuntapay
to Rosendo Lasam, the MTCC held that the siblings Abdon, Sado, Rufo and Maria
Turingan no longer had any share therein. Consequently, they could not convey to
Vicenta Umengan what they did not own. On the issue then of who was entitled to
possession of the subject lot, the MTCC ruled in favor of the heirs of Rosendo Lasam
as it found that Vicenta Umengans possession thereof was by mere tolerance. The
dispositive portion of the MTCC decision reads:

WHEREFORE, in the light of the foregoing considerations, this Court Resolve[d] to order
the EJECTMENT of VICENTA T. UMENGAN and in her place INSTITUTE THE HEIRS
OF ROSENDO LASAM.
It is further ordered the defendant shall pay the Heirs of Rosendo Lasam the sum of
P500.00 pesos representing the monthly rental of the land from August 2000 to the time
this case shall have been terminated.
Ordering the defendant to pay the plaintiffs the amount of P20,000.00 attorneys fees
plus cost of this litigation.
So Ordered.

On appeal, the RTC affirmed in toto the decision of the MTCC. The RTC echoed the
reasoning of the MTCC that the testamentary disposition of the property of Isabel
Cuntapay should be respected, and that the heirs of Rosendo Lasam have a better
right to possess the subject lot.
Undaunted, Vicenta Umengan filed an appeal with the CA. She argued that the
MTCC had no jurisdiction over the case as it involved the recovery of ownership of
the subject lot, not merely recovery of possession or unlawful detainer. She also
assailed the RTCs and the MTCCs holding that the purported Testamento
Abierto of Isabel Cuntapay prevails over Vicenta Umengans muniments of title and,
consequently, the heirs of Rosendo Lasam have a better right to the subject lot than
Vicenta Umengan.
In the assailed Decision dated February 16, 2005, the CA reversed and set aside
the decision of the RTC. The appellate court preliminarily upheld the jurisdiction of
the MTCC over the subject matter as it found that the allegations in the complaint
made out a case for unlawful detainer. The heirs of Rosendo Lasam in their
complaint, according to the CA, only sought for Vicenta Umengan to vacate and
surrender possession of the subject lot. The CA also rejected the contention of the
heirs of Rosendo Lasam that the issue of ownership of the subject lot had already
been settled in another case, Civil Case No. 4917, before RTC (Branch 3) of
Tuguegarao City. The CA stated that the trial courts order dismissing the said case
was not a judgment on the merits as to constitute res judicata.

However, the CA declared that the RTC, as well as the MTCC, erred in ruling
that, by virtue of the purported last will and testament of Isabel Cuntapay, the
heirs of Rosendo Lasam have a better right to the subject lot over Vicenta Umengan.
The CA explained that the said last will and testament did not comply with the
formal requirements of the law on wills.
6

Specifically, the CA found that the pages of the purported last will and testament
were not numbered in accordance with the law. Neither did it contain the requisite
attestation clause. Isabel Cuntapay as testator and the witnesses to the will did not
affix their respective signatures on the second page thereof. The said instrument
was likewise not acknowledged before a notary public by the testator and the
witnesses. The CA even raised doubts as to its authenticity, noting that while Isabel
Cuntapay died in 1947 and the heirs of Rosendo Lasam claimed that they
discovered the same only in 1997, a dateMay 19, 1956appears on the last page
of the purported will. The CA opined that if this was the date of execution, then the
will was obviously spurious. On the other hand, if this was the date of its discovery,
then the CA expressed bafflement as to why the heirs of Rosendo Lasam, through
their mother, declared in the Partition Agreement dated December 28, 1979 that
Isabel Cuntapay died intestate.
It was observed by the CA that as against these infirmities in the claim of the
heirs of Rosendo Lasam, Vicenta Umengan presented a Deed of Sale and a Deed of
Donation to justify her possession of the subject lot. The CA noted that she has also
possessed the subject property since 1955. Such prior possession, the CA held, gave
Vicente Umengan the right to remain in the subject lot until a person with a better
right lawfully ejects her. The heirs of Rosendo Lasam do not have such a better
right. The CA stressed that the ruling on the issue of physical possession does not
affect the title to the subject lot nor constitute a binding and conclusive adjudication
on the merits on the issue of ownership. The parties are not precluded from filing
the appropriate action to directly contest the ownership of or the title to the subject
lot.
The decretal portion of the assailed decision of the CA reads:
WHEREFORE, premises considered, the appeal is GRANTED. The August 29, 2003
decision of the RTC, Branch 1, Tuguegarao City, Cagayan in Civil Case No. 5924 is hereby

REVERSED and SET ASIDE. Private respondents complaint for unlawful detainer against
petitioner is dismissed for lack of merit.
SO ORDERED.

The heirs of Rosendo Lasam sought the reconsideration thereof but their motion
was denied by the CA in its Resolution dated May 17, 2005.
The heirs of Rosendo Lasam (petitioners) now come to the Court alleging that the
CA committed reversible error in setting aside the decision of the RTC, which had
affirmed that of the MTCC, and dismissing their complaint for unlawful detainer
against respondent Vicenta Umengan.
Petitioners argue that the CA erred when it held, on one hand, that the MTCC
had jurisdiction over the subject matter of the complaint as the allegations therein
make out a case for unlawful detainer but, on the other hand, proceeded to discuss
the validity of the last will and testament of Isabel Cuntapay.
Petitioners insist that respondent is holding the subject lot by mere tolerance and
that they, as the heirs of Rosendo Lasam who was the rightful owner of the subject
lot, have a better right thereto. It was allegedly error for the CA to declare the last
will and testament of Isabel Cuntapay as null and void for its non-compliance with
the formal requisites of the law on wills. The said matter cannot be resolved in an
unlawful detainer case, which only involves the issue of material or physical
possession of the disputed property. In any case, they maintain that the said will
complied with the formal requirements of the law.
It was allegedly also erroneous for the CA to consider in respondents favor the
deed of sale and deed of donation covering portions of the subject lot, when these
documents had already been passed upon by the RTC (Branch 3) of Tuguegarao City
in Civil Case No. 4917 when it dismissed the respondents complaint for partition of
the subject lot. The said order allegedly constituted res judicata and may no longer
be reviewed by the CA.
Petitioners emphasize that in an unlawful detainer case, the only issue to be
resolved is who among the parties is entitled to the physical or material possession
of the property in dispute. On this point, the MTCC held (and the same was
affirmed by the RTC) that petitioners have a better right since the merely

tolerated possession of the respondent had already expired upon the petitioners
formal demand on her to vacate. In support of this claim, they point to the affidavit
of Heliodoro Turingan, full brother of the respondent, attesting that the latters
possession of the subject lot was by mere tolerance of Rosendo Lasam who inherited
the same from Isabel Cuntapay.
According to petitioners, respondents predecessors-ininterest from whom she
derived her claim over the subject lot by donation and sale could not have conveyed
portions thereof to her, as she had claimed, because until the present, it is still
covered by OCT Nos. 196 and 1032 under the names of Pedro and Leona Cuntapay.
Their respective estates have not been settled up to now.
It is also the contention of petitioners that the CA should have dismissed outright
respondents petition filed therewith for failure to comply with the technical
requirements of the Rules of Court. Specifically, the petition was not allegedly
properly verified, lacked statement of material dates and written explanation on
why personal service was not made.
This last contention of petitioners deserves scant consideration. The technical
requirements for filing an appeal are not sacrosanct. It has been held that while the
requirements for perfecting an appeal must be strictly followed as they are
considered indispensable interdictions against needless delays and for orderly
discharge of judicial business, the law does admit of exceptions when warranted by
circumstances. In the present case, the CA cannot be faulted in choosing to overlook
the technical defects of respondents appeal. After all, technicality should not be
allowed to stand in the way of equitably and completely resolving the rights and
obligations of the parties.
8

The Court shall now resolve the substantive issues raised by petitioners.
It is well-settled that in ejectment suits, the only issue for resolution is the
physical or material possession of the property involved, independent of any claim of
ownership by any of the party litigants. However, the issue of ownership may be
provisionally ruled upon for the sole purpose of determining who is entitled to
possession de facto.
10

In the present case, petitioners base their claim of right to possession on the
theory that their father, Rosendo Lasam, was the sole owner of the subject lot by

virtue of the newly discovered last will and testament of Isabel Cuntapay
bequeathing the same to him. Respondent is allegedly holding the subject lot by
mere tolerance of Rosendo Lasam and, upon the petitioners formal demand on her
to vacate the same, respondents right to possess it has expired.
On the other hand, respondent hinges her claim of possession on the legal
conveyances made to her by the children of Isabel Cuntapay by her first husband,
namely, Maria, Rufo, Sado and Abdon. These conveyances were made through the
sale and donation by the said siblings of their respective portions in the subject lot
to respondent as evidenced by the pertinent deeds.
The CA correctly held that, as between the respective claims of petitioners and
respondent, the latter has a better right to possess the subject lot.
As earlier stated, petitioners rely on the last will and testament of Isabel
Cuntapay that they had allegedly newly discovered. On the basis of this instrument,
the MTCC and RTC ruled that petitioners have a better right to the possession of
the subject lot because, following the law on succession, it should be respected and
should prevail over intestate succession.
However, contrary to the ruling of the MTCC and RTC, the purported last will
and testament of Isabel Cuntapay could not properly be relied upon to establish
petitioners right to possess the subject lot because, without having been probated,
the said last will and testament could not be the source of any right.
Article 838 of the Civil Code is instructive:
Art. 838. No will shall pass either real or personal property unless it is proved and allowed
in accordance with the Rules of Court.
The testator himself may, during his lifetime, petition the court having jurisdiction for
the allowance of his will. In such case, the pertinent provisions of the Rules of Court for the
allowance of wills after the testators death shall govern.
The Supreme Court shall formulate such additional Rules of Court as may be necessary
for the allowance of wills on petition of the testator.
Subject to the right of appeal, the allowance of the will, either during the lifetime of the
testator or after his death, shall be conclusive as to its due execution.

In Caiza v. Court of Appeals, the Court ruled that: [a] will is essentially
ambulatory; at any time prior to the testators death, it may be changed or
revoked; and until admitted to probate, it has no effect whatever and no
11

right can be claimed thereunder, the law being quite explicit: No will shall pass
either real or personal property unless it is proved and allowed in accordance with
the Rules of Court.
12

Dr. Tolentino, an eminent authority on civil law, also explained that [b]efore any
will can have force or validity it must be probated. To probate a will means to
prove before some officer or tribunal, vested by law with authority for that purpose,
that the instrument offered to be proved is the last will and testament of the
deceased person whose testamentary act it is alleged to be, and that it has been
executed, attested and published as required by law, and that the testator was of
sound and disposing mind. It is a proceeding to establish the validity of the
will. Moreover, the presentation of the will for probate is mandatory and is a
matter of public policy.
13

14

Following the above truisms, the MTCC and RTC, therefore, erroneously ruled
that petitioners have a better right to possess the subject lot on the basis of the
purported last will and testament of Isabel Cuntapay, which, to date, has not been
probated. Stated in another manner, Isabel Cuntapays last will and testament,
which has not been probated, has no effect whatever and petitioners cannot claim
any right thereunder.
Hence, the CA correctly held that, as against petitioners claim, respondent has
shown a better right of possession over the subject lot as evidenced by the deeds of
conveyances executed in her favor by the children of Isabel Cuntapay by her first
marriage.
Contrary to the claim of petitioners, the dismissal of respondents action for
partition in Civil Case No. 4917 before the RTC (Branch 3) of Tuguegarao City does
not constitute res judicata on the matter of the validity of the said conveyances or
even as to the issue of the ownership of the subject lot. The order dismissing
respondents action for partition in Civil Case No. 4917 stated thus:

For resolution is a motion to dismiss based on defendants [referring to the petitioners

herein] affirmative defenses consisting inter alia in the discovery of a last will and
testament of Isabel Cuntapay, the original owner of the land in dispute.
xxx
It appears, however, that the last will and testament of the late Isabel Cuntapay has not
yet been allowed in probate, hence, there is an imperative need to petition the court for the
allowance of said will to determine once and for all the proper legitimes of legatees and
devisees before any partition of the property may be judicially adjudicated.
It is an elementary rule in law that testate proceedings take precedence over any other
action especially where the will evinces the intent of the testator to dispose of his whole
estate.
With the discovery of the will of the late Isabel Cuntapay in favor of the defendants, the
Court can order the filing of a petition for the probate of the same by the interested party.
WHEREFORE, in light of the foregoing considerations, let the above-entitled case be as
it is hereby DISMISSED.
SO ORDERED.

15

For there to be res judicata, the following elements must be present: (1) finality of
the former judgment; (2) the court which rendered it had jurisdiction over the
subject matter and the parties; (3) it must be a judgment on the merits; and (4)
there must be, between the first and second actions, identity of parties, subject
matter and causes of action. The third requisite, i.e., that the former judgment must
be a judgment on the merits, is not present between the action for partition and the
complaint a quo for unlawful detainer. As aptly observed by the CA:
16

Our reading of the Orders (dated June 16, 1997 and October 13, 1997) in Civil Case No.
4917 reveals that the RTC, Branch 3, Tuguegarao, Cagayan, dismissed the complaint for
partition because of the discovery of the alleged last will and testament of Isabel Cuntapay.
The court did not declare respondents [referring to the petitioners herein] the owners of the
disputed property. It 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. Instead of filing the
appropriate petition for the probate of Isabel Cuntapays will, the respondents filed the
present complaint for unlawful detainer. Viewed from this perspective, we have no doubt
that the courts Orders cited by the respondents are not judgments on the merits that

would result in the application of the principle of res judicata. Where the trial court merely
refrained from proceeding with the case and granted the motion to dismiss with some
clarification without conducting a trial on the merits, there is no res judicata.
17

Further, it is not quite correct for petitioners to contend that the children of Isabel
Cuntapay by her first marriage could not have conveyed portions of the subject lot to
respondent, as she had claimed, because until the present, it is still covered by OCT
Nos. 196 and 1032 under the names of Pedro and Leona Cuntapay. To recall, it was
already agreed by the heirs of the said spouses in a Partition Agreement dated
December 28, 1979 that the subject lot would belong to Isabel Cuntapay. The latter
died leaving her six children by both marriages as heirs. Considering that her
purported last will and testament has, as yet, no force and effect for not having been
probated, her six children are deemed to be co-owners of the subject lot having their
respective pro indiviso shares. The conveyances made by the children of Isabel
Cuntapay by her first marriage of their respective pro indiviso shares in the subject
lot to respondent are valid because the law recognizes the substantive right of heirs
to dispose of theirideal share in the co-heirship and/co-ownership among the heirs.
The Court had expounded the principle in this wise:
This Court had the occasion to rule that there is no doubt that an heir can sell whatever
right, interest, or participation he may have in the property under administration. This is a
matter which comes under the jurisdiction of the probate court.
The right of an heir to dispose of the decedents property, even if the same is under
administration, is based on the Civil Code provision stating that the possession of
hereditary property is deemed transmitted to the heir without interruption and from the
moment of the death of the decedent, in case the inheritance is accepted. Where there are
however, two or more heirs, the whole estate of the decedent is, before its partition, owned
in common by such heirs.
The Civil Code, under the provisions of co-ownership, further qualifies this right.
Although it is mandated that each co-owner shall have the full ownership of his part and of
the fruits and benefits pertaining thereto, and thus may alienate, assign or mortgage it,
and even substitute another person in its enjoyment, the effect of the alienation or the
mortgage, with respect to the co-owners, shall be limited to the portion which may be
allotted to him in the division upon the termination of the co-ownership. In other words, the
law does not prohibit a co-owner from selling, alienating or mortgaging his ideal share in
the property held in common.

As early as 1942, this Court has recognized said right of an heir to dispose of property
under administration. In the case ofTeves de Jakosalem vs. Rafols, et al., it was said that
the sale made by an heir of his share in an inheritance, subject to the result of the pending
administration, in no wise, stands in the way of such administration. The Court then relied
on the provision of the old Civil Code, Article 440 and Article 399 which are still in force as
Article 533 and Article 493, respectively, in the new Civil Code. The Court also cited the
words of a noted civilist, Manresa: Upon the death of a person, each of his heirs becomes
the undivided owner of the whole estate left with respect to the part or portion which might
be adjudicated to him, a community of ownership being thus formed among the coowners of
the estate which remains undivided.
18

Contrary to the assertion of petitioners, therefore, the conveyances made by the

children of Isabel Cuntapay by her first marriage to respondent are valid insofar as
their pro indiviso shares are concerned. Moreover, the CA justifiably held that these
conveyances, as evidenced by the deed of donation and deed of sale presented by
respondent, coupled with the fact that she has been in possession of the subject lot
since 1955, establish that respondent has a better right to possess the same as
against petitioners whose claim is largely based on Isabel Cuntapays last will and
testament which, to date, has not been probated; hence, has no force and effect and
under which no right can be claimed by petitioners. Significantly, the probative
value of the other evidence relied upon by petitioners to support their claim, which
was the affidavit of Heliodoro Turingan, was not passed upon by the MTCC and the
RTC. Their respective decisions did not even mention the same.
In conclusion, it is well to stress the CAs admonition that
x x x our ruling on the issue of physical possession does not affect title to the property nor
constitute a binding and conclusive adjudication on the merits on the issue of ownership.
The parties are not precluded from filing the appropriate action directly contesting the
ownership of or the title to the property.
19

Likewise, it is therefore in this context that the CAs finding on the validity of Isabel
Cuntapays last will and testament must be considered. Such is merely a provisional
ruling thereon for the sole purpose of determining who is entitled to possession de
facto.

WHEREFORE, premises considered, the petition is DENIED. The assailed

Decision dated February 16, 2005 and the Resolution dated May 17, 2005 of the
Court of Appeals in CAG.R. SP No. 80032 are AFFIRMED.
SO ORDERED.
Panganiban (C.J.,
Martinez and Chico-Nazario, JJ., concur.

Chairperson), Ynares-Santiago,Austria-

Petition denied, assailed decision and resolution affirmed.

Notes.Until admitted to probate, a will has no effect and no right can be
claimed thereunder. (Arbolario vs. Court of Appeals, 401 SCRA 360 [2003])
The only issue for resolution in an unlawful detainer case is physical or material
possession of the property involved independent of a claim of ownership by any of
the party litigants. (Balanon-Anicete vs. Balanon, 402 SCRA 514 [2003])
o0o

No. L-23079. February 27, 1970.

RUBEN AUSTRIA,CONSUELO AUSTRIA-BENTA and LAURO AUSTRIA Mozo,
petitioners, vs. HON.ANDRES REYES, Judge, Court of First Instance of Rizal,
PERFECTO CRUZ,BENITA CRUZ-MENEZ ISAGANI CRUZ,ALBERTO CRUZ and
Luz CRUZ-SALONGArespondents.
Civil law; Succession; Testamentary succession; Institution of heir; Requisites for
annulment of institution of heir for statement of a false cause.Before the institution of
heirs may be annulled under Article 850 of the Civil Code, the following requisites must
concur: First, the cause for the institution of heirs must be stated in the will; second, the
cause must be shown to be false; and third,it must appear from the face of the will that the
testator would not have made such institution if he had known the falsity of the cause.
Same; Same; Same; Same; Same; Where will does not state cause for institution of heir.
Where the decedents will does not state in a specific or unequivocal manner the cause for
such institution of heirs, the will cannot be annulled under Article 850 of the Civil Code.
Such institution may be annulled only when it is clear, after an examination of the will that
the testator clearly would not have made the institution if he had known the cause for it to
be false.
Same; Same; Same; Interpretation of will; Testacy favored.Testacy is favored and
doubts are resolved on its side, especially where the will evinces an intention on the part of
the testator to dispose of practically his whole estate, as was done in this case. Moreover, so
compelling is the principle that intestacy should be avoided and the wishes of the testator
allowed to prevail, that we could even vary the language of the will for the purpose of giving
it effect.
Remedial law; Courts; Inherent powers; Power to amend and control processes.Every
court has the inherent power to amend and control its processes and orders so as to make
them conformable to law and justice. In this case, the lower court had power to reverse its
order of December 22, 1959 because the subsequent orders complained of served merely to
clarify the firstan act which the court could legally do.
Same; Civil procedure; Intervention; Power of court to limit extent of intervention.The
court has the power to limit the extent of a partys intervention in a probate case within its
powers as articulated by the Rules of Court.

PETITION for certiorari to annul the orders of the Court of First Instance of Rizal.
The facts are stated in the opinion of the Court.
Salonga, Ordonez, Yap, Sicat & Associates for petitioners.
Ruben Austria for himself and co-petitioners.
De los Santos, De los Santos & De los Santos for respondent Perfecto Cruz.
Villareal, Almacen, Navarra & Amores for other respondents.
CASTRO, J.:
On July 7, 1956 Basilia Austria vda. de Cruz filed with the Court of First Instance
of Rizal (Special Proceedings 2457) a petition for probate, aatte mortem, of her last
will and testament The probate was opposed by the present petitioners Ruben
Austria, Consuelo AustriarBenta and Lauro Austria Mozo, and still others who, like
the petitioner, are nephews and nieces of Basilia. This opposition was, however,
dismissed and the probate of the will allowed after due hearing.
The bulk of the estate of Basilia, admittedly, was destined under the will to pass
on to the respondents Perfecto Cruz, Benita Cruz-Mefiez, Isagani Cruz, Alberto
Cruz, and Luz Cruz-Salonga, all of whom had been assumed and declared by Basilia
as her own legally adopted children.
On April 28, 1959, more than two years after her will was allowed to probate,
Basilia died. The respondent Perfecto Cruz was appointed executor without bond by
the same court in accordance with the provisions of the decedents will,
notwithstanding the blocking attempt pursued by the petitioner Ruben Austria.
Finally, on November 5, 1959, the present petitioners filed in the same proceedings
a petition in intervention for partition alleging in substance that they are the
nearest of kin of Basilia, and that the five respondents Perfecto Cruz, et al,, had not
in fact been adopted by the decedent in accordance with law, in effect rendering
these respondents mere strangers to the decedent and without any right to 3ucceed
as heirs.

Notwithstanding opposition by the respondent Perfecto Cruz, as executor of the

estate, the court a quo allowed the petitioners intervention by its order of December
22, 1959, couched in broad terms, as follows: The Petition in Intervention for
Partition filed by the above-named oppositors [Ruben Austria, et al.,] dated
November 5, 1959 is hereby granted.
In the meantime, the contending sideg debated the matter of authenticity or lack
of it of the several adoption papers produced and presented by the respondents. On
motion of the petitioners Ruben Austria, et al, these documents were referred to the
National Bureau of Investigation for examination and advice. N.B.L report seems to
bear out the genuineness of the documents, but the petitioners, evidently
dissatisfied with the results, managed to obtain a preliminary opinion from a
Constabulary questioned-document examiner whose views undermine the
authenticity of the said documents. The petitioners Ruben Austria, et al, thus
moved the lower court to refer the adoption papers to the Philippine Constabulary
for further study. The petitioners likewise located former personnel of the court
which appeared to have granted the questioned adoption, and obtained written
depositions from two of them denying any knowledge of the pertinent adoption
proceedings.
On February 6, 1963, more than three yars after they were allowed to intervene,
the petitioners Ruben Austria, et al., moved the lower court to set for hearing the
matter of the genuineness of the adoption of the respondents Perfecto Cruz, et al.,
by the late Basilia. Before the date set by the court for hearing arrived, however, the
respondent Benita Cruz-Menez, who entered an appearance separately from that of
her brother Perfecto Cruz, filed on February 28, 1963 a motion asking the lower
court, by way of alternative relief, to confine the petitioners intervention, should it
be permitted, to properties not disposed of in the will of the decedent.
On March 4, 1963, the lower court heard the respondent Benitas motion. Both
sides subsequently submitted their respective memoranda, and finally, the lower
court issued an order on June 4, 1963, delimiting the petitioners' intervention to the
properties of the deceased which were not disposed of in the will.
The petitioners moved the lower court to reconsider this latest order, eliciting
thereby an opposition from the respondents. On October 25, 1863 the same court
denied the petitioners motion for reconsideration.

A second motion for reconsideration which set off a long exchange of memoranda
from both sides, was summarily denied on April 21, 1964.
Hence this petition for certiorari, praying this Court to annul the orders of June 4
and October 25, 1963 and the order of April 21, 1964, all restricting petitioners'
intervention to properties that were not included in the decedents testamentary
dispositions.
The uncontested premises are clear. Two interests are locked in dispute over the
bulk of the estate of the deceased. Arrayed on one side are the petitioners Ruben
Austria, Consuelo Austria-Benta and Lauro Austria Mozo, three of a number of
nephews and nieces who are con-cededly the nearest surviving blood relatives of the
de-cedent. On the other side are the respondents brothers and sisters, Perfecto
Cruz, Benita Cruz-Menez, Isagani Cruz, Alberto Cruz and Luz Cruz-Salonga, all of
whom heirs in the will of the deceased Basilia, and all of whom claim kinship with
the decedent by virtue of legal adoption. At the heart of the controversy is Basilias
last willimmaculate in its extrinsic validity since It bears the imprimatur of duly
conducted probate proceedings.
The complaint in intervention filed in the lower court assails the legality of the
tie which the respondent Perfecto Cruz and his brothers and sisters claim to have
with the decedent. The lower court had, however, assumed, by its orders in question,
that the validity or invalidity of the adoption is not material nor decisive on the
efficacy of the institution of heirs; for, even if the adoption in question were spurious,
the respondents Perfecto Cruz, et al., will nevertheless succeed not as compulsory
heirs but as testamentary heirs instituted in Basilias will. This ruling apparently
finds support in article 842 of the Civil Code which reads:
One who has no compulsory heirs may dispose of by will all his estate or any part of it in
favor of any person having capacity to succeed.
One who has compulsory heirs may dispose of his estate provided he does not
contravene the provisions of this Code with regard to the legitime of said heirs.

The lower court must have assumed that since the petitioners nephews and niece
are not compulsory heirs, they do not possess that interest which can be prejudiced
by a free-wheeling testamentary disposition. The petitioners interest is confined to
properties, if any, that have not been disposed of in the will, for to that extent

intestate succession can take place and the question of the veracity of the adoption
acquires relevance.
The petitioners nephews and niece, upon the other hand, insist that the entire
estate should descend to them by intestacy by reason of the intrinsic nullity of the
institution of heirs embodied in the decedents will. They have thus raised squarely
the issue of whether or not such institution of heirs would retain efficacy in the
event there exists proof that the adoptionof the same heirs by the decedent is false.
The petitioners cite, as the controlling rule, article 850 of the Civil Code which
reads:
The statement of a false cause for the institution of an heir shall be considered as not
written, unless it appears from the will that the testatpr would not have made such
institution if he had known the falsity of such cause.

Coming closer to the center of the controversy, the petitioners have calted the
attention of the lower court and this Court to the following pertinent portions of the
will of the deceased which recite:
III
Ang aking mga sapilitang tagapagmana (herederos forzosos) ay ang aking itinuturing na
mga anak na tunay (Hijos legalmente adoptados) na sina Perfecto, Alberto, Luz, Benita at
Isagani, na pawang may apeiyidong Cruz.
x

V
Kung ako ay bawian ng Dios ng buhay, ay aking ipinamaraana ang aking mga ariariang maiiwan, sa kaparaanang sumusunod:
A.Aking ipinamamana sa aking nabanggit na limang anak na sina Perfecto, Alberto,
Luz, Benita at Isagani, na pawang may apeiyidong Cruz, na parepareho ang kaparti ng
bawat isa at walang lamangan (en partes iguales), bilang kanilang sapilitang mana
(legiti[ma]), ang kalahati (1/2) ng aking kaparti sa lahat ng aming ari-ariang gananciales
ng aking yumaong asawang Pedro Cruz na napapaloob sa Actuacion Especial No. 640 ng
Hukumang Unang Dulugan ng Rizal at itinutukoy sa No. 1 ng parafo IV ngtestamentong
ito, ang kalahati (1/2) ng mga lagay na lupa at palaisdaan na nasa Obando at Polo,

Bulacan, na namana ko sa aking yumaong ama na si Calixto Austria, at ang kalahati (1/2)
ng ilang lagay na lupa na nasa Tinejeros, Malabon, Rizal, na aking namana sa yumao kong
kapatid na si Fausto Austria.

The tenor of the language used, the petitioners argue, gives rise to the inference
that the late Basilia was deceived into believing that she was legally bound to
bequeath one-half of her entire estate to the respondents Perfecto Cruz, et ah as the
latters legitime. The petitioners further contend that had the deceased known the
adoption to be spurious, she would not have instituted the respondents at allthe
basis of the institution being solely her belief that they were compulsory heirs. Proof
therefore of the falsity of the adoption would cause a nullity of the institution of
heirs and the opening of the estate wide to intestacy. Did the lower court then abuse
its discretion or act in violation of the rights of the parties in barring the petitioners
nephews and niece from registering their claim even to properties adjudicated by
the decedent in her will?
Before the institution of heirs may be annulled under article 850 of the Civil
Code, the following requisites must concur: First, the cause for the institution of
heirs must be stated in the will; second, the cause must be shown to be false;
and third, it must appear from the face of the will th&t the testator would not have
made such institution if he had known the falsity of the cause.
The petitioners would have us imply, from the use of the terms, sapilitang
tagapagmana (compulsory heirs) andsapilitang mana (legitime), that the
impelling reason or cause for the institution of the respondents was the testatrixs
belief that under the law she could not do otherwise. If this were indeed what
prompted the testatrix in instituting the respondents, she did not make it known in
her will. Surely if she was aware that succession to the legitime takes place by
operation of law, independent of her own wishes, she would not have found it
convenient to name her supposed compulsory heirs to their legitimes. Her express
adoption of the rules on legitimes should very well indicate her complete agreement
with that statutory scheme. But even this, like the petitioners own proposition, is
highly speculative of what was in the mind of the testatrix when she executed her
will.

One fact prevails, however, and it is that the decedents will does not state in a
specific or unequivocal manner the cause for such institution of heirs. We cannot
annul the same on the basis of guesswork or uncertain implications.
And even if we should accept the petitioners theory that the decedent instituted
the respondents Perfecto Cruz, et al. solely because sbe believed that the law
commanded her to do so, on the false assumption that her adoption of these
respondents was valid, still such insititution must stand.
Article 850 of the Civil Code, quoted above, is a positive injunction to ignore
whatever false cause the testator may have written in his will for the institution of
heirs. Such institution may be annulled only when one is satisfied, after an
examination of the will, that the tesitator clearly would not have made the
institution if be had known the cause for it to be false. Now, would the late Basilia
have caused the revocation of the institution of heirs if she had known that she was
mistaken in treating ttiese heirs as her legally adopted children? Or would she have
instituted them nonetheless?
The decedents will, which alone should provide the an&wer, is mute on this point
or at best is vague and uncertain. The phrases, mga sapilitang
tagapagmanaand sapilitang mana were borrowed from the language of the law on
succession and were used, respectively, to describe the class of heirs instituted and
the abstract object of the inheritance. They offer no absolute indication that the
decedent would have willed her estate other than the way she did if she had known
that she was not bound by law to make allowance for legitimes. Her disposition of
the free portion of her estate (libre disposition) which largely favored the respondent
Perfecto Cruz, the latters children, and the children of the respondent Benita Cruz,
shows a perceptible inclination on her part to give to the respondents more than
what she thought the law enjoined her to give to them. Compare this with the
relatively small devise of land which the decedent had left for her blood relatives,
including the petitioners Consuelo Austria-Benta and Lauro Mozo and the children
of the petitioner Ruben Austria. Were we to exclude the respondents Perfecto Cruz,
et al. from the inheritance, then the petitioners and the other nephews and nieces
would succeed to the bulk of the estate by intestacya result which would subvert
the clear wishes of the decedent.

Whatever doubts one entertains in his mind should be swept away by these
explicit injunctions in the Civil Code: The words of a will are to receive an
interpretation which will give to every expression some effect, rather than one
which will render any of the expressions inoperative; and of two modes of
interpreting a will, that is to be preferred which will prevent intestacy.
1

Testacy is favored and doubts are resolved on its side, especially where the will
evinces an intention on the part of the testator to dispose of practically his whole
estate, as was done in thia case. Moreover, so compelling is the principle that
intestacy should be avoided and the wishes of the testator allowed to prevail, that
we could even vary the language of tihe will for the purpose of giving it effect A
probate court has found, by final judgment, that the late Basilia Austria Vda. de
Cruz was possessed of testamentary capacity and her last will executed free from
falsification, fraud, trickery or undue influence. In this situation, it becomes our
duty to give full expression to her will.
2

At all events, the legality of the adoption of ihe respondents by the testatrix can
be assailed only in a separate action brought for that purpose, and cannot be the
subject of a collateral attack.
5

To the petitioners charge that the lower court had no power to reverse its order of
December 22, 1959, suffice it to state that, as borne by the records, the subsequent
orders complained of served merely to clarify the firstan act which the court could
legally do. Every court has the inherent power to amend and control its processes
and orders so as to make them conformable to law and justice. That the court a
quo has limited the extent of the petitioners intervention is also within its powers
as articulated by the Rules of Court.
6

ACCORDINGLY, the present petition is denied, at petitioners cost.

Concepcion,
C.J., Reyes,
J.B.L., Dizon, Makalintal,Zaldivar, Fernando, Teehankee, Barredo and Villamor,
JJ.,concur.
Petition denied.
Notes.(a) Forced Heirs and their legitime.UnderArt. 808 of the old Civil Code, 2/3 of the property of a decedent constitutes the
legitime of his. legitimate heirs and descendants; one half of this 2/3 (or 1/3 of the entire estate) is disposable among the heirs and legitimate

descendants of the decedent according to his will; and the remaining 1/3 is available for free disposition by will to whomsoever the decedent
may see fit to direct its disposition, without exception. (Osorio vs. Osorio, L-1965, Dec. 29, 1949).
(b) Rights of action.One who is not a forced heir of a decedent, but merely a collateral heir, has no standing whatsoever to attack a purported
sale of land by the decedent in her lifetime on the ground that it was without consideration and in fraud of his Tights, and even forced heir has
no standing to attack such a transfer on the ground that it was made with intent to defraud creditors of his ancestor (Concepcion vs. Sta. Ana, L2277, Dec. 29, 1950).

No. L-17818. January 25, 1967.

TIRSO T. REYES, as guardian of the minors Azucena, Flordelis and Tirso, Jr., all
surnamed Reyes y Barretto, plaintiffs-appellants, vs. LUCIA MILAGROS
BARRETTODATU, defendant-appellee.
Succession; Partition, wherein an instituted heir. who was later found not to be the
decedents child, was included, is valid.Article 1081 of the Old Civil Code, which provides
that a partition made with the inclusion of a person believed to be an heir, but who is not,
shall be void, does not apply to a case where the partition was made between two persons
instituted as heirs in a will but it was found out later that one of them was not the
testators child. The reason is obvious. The heir, who was not the testators child, was
admittedly instituted as an heir in the will, and was not merely a person who was
erroneously believed to be an heir (See Reyes vs. Datu, 94 Phil. 446; Reyes vs. Barretto, 98
Phil. 996). Article 1081 does not speak of children or descendants but of heirs (without
distinction between forced, voluntary or intestate ones), and the fact that the person in
question was not the testators daughter does not preclude her from being one of the heirs
expressly named in the testament, for the testator was at liberty to assign the f ree portion
of his estate to whomsover he chose. The fact that the one-half share assigned to the said
person encroached upon the legitime of the other instituted heir, who was a real daughter of
the testator, did not preclude that person from becoming a testamentary heir of the
decedent.
Same; Diminution of legitime of forced heir does not constitute preterition.Where the
testator allotted in his will to his legitimate daughter a share less than her legitime, such
circumstance would not invalidate the institution of a stranger as an heir, since there was
no preterition or total omission of a forced heir. The ruling in Neri vs. Akutin, 72 Phil. 322
is not applicable to the case.
Same; Partition not amounting to a compromise on civil status.Where a partition was
made between two persons instituted as heirs in the will, and one of them was found out
later not to be the testators daughter, while the other was really his daughter, it cannot be
said that the partition was a void compromise on the civil status of the person who was not
the testators daughter. At the time of the partition, the civil status of that person was not

being questioned. There can be no compromise on a matter that was not in issue, While the
law outlaws a compromise over civil status, it does not forbid a settlement by the parties
regarding the share that should correspond to the claimant to the hereditary estate.
Same; When partition decreed by the court is res judicata.A project of partition is
merely a proposal for the distribution of the hereditary estate which the court may accept or
reject. It is the court alone that makes the distribution of the estate and determines the
persons entitled thereto (Camia de Reyes vs. Reyes de Ilano, 63 Phil. 629; Sec. 750, Act 190;
Rule 90, Old Rules of Court; Rule 91, Revised Rules of Court). It is that final judicial decree
of distribution that vests title in the distributees. If the decree was erroneous, it should
have been corrected by opportune appeal; but once it had become final, its binding effect is
like that of any other judgment in rem, unless properly set aside for lack of jurisdiction or
fraud. Where the court has validly issued a decree of distribution and the same has become
final, the validity or invalidity of the project of partition becomes irrelevant.
Same; When consummated partition cannot be set aside.A partition agreement that
was ratified by the courts decree of distribution and was actually consummated by delivery
of the shares to the distributees cannot be set aside after a long lapse of time. The rule in
Saminiada vs. Mata, 92 Phil. 426 does not apply to that case.
Same; Distribution according to the will should be respected;The minority of the
distributee does not affect courts jurisdiction.A distribution in the decedents will, made
according to his will, should be respected. The fact that one of the distributees was a minor
at the time the court issued the decree of distribution does not imply that the court had no
jurisdiction to enter the decree of distribution. The proceeding for the settlement of a
decedents estate is a proceeding in rem (Ramos vs. Ortuzar, 89 Phil. 741). It is binding on
the distributee who was represented by her mother as guardian.
Same; Relief on the ground of fraud.Where in a partition between two instituted
heirs, one of them did not know that she was not really the child of the testator, it cannot be
said that she def rauded the other heir who was the testators daughter. At any rate, relief
on the ground of fraud must be obtained within four years from its discovery. Where the
person allegedly defrauded was only sixteen years old in 1939, when the fraud was allegedly
perpetrated, and she became of age in 1944, and became aware of the fraud in 1946, her
action in 1956 to set aside the partition was clearly barred.
Guardianship; Guardian cannot waive rights of the ward.An abdicative waiver of
rights by a guardian is an act of disposition. It cannot bind his ward, being null and void as
to the ward unless duly authorized by the proper court (Ledesma Hermanos vs. Castro, 55
Phil. 136, 142).

APPEAL from a judgment of the Court of First Instance of Bulacan.

The facts are stated in the opinion of the Court.
Recto Law Offices for plaintiff-appellant.
Deogracias T. Reyes and Associates for defendantappellee.
REYES, J.B.L., J.:
Direct appeal from a judgment of the Court of First Instance of Bulacan, in its Civil
Case No. 1084, dismissing the complaint of appellant Tirso T. Reyes and ordering
the same to deliver to the defendant-appellee, Lucia Milagros Barretto-Datu, the
properties received by his deceased wife under the terms of the will of the late
Bibiano Barretto, consisting of lots in Manila, Rizal, Pampanga and Bulacan, valued
at more than P200,000.
The decision appealed from sets the antecedents of the case to be as follows:
This is an action to recover one-half share in the fishpond, located in the barrio of San
Roque, Hagonoy, Bulacan, covered by Transfer Certificate of Title No. T-13734 of the Land
Records of this Province, being the share of plaintiffs wards as minor heirs of the deceased
Salud Barretto, widow of plaintiff Tirso Reyes, guardian of said minors.
It appears that Bibiano Barretto was married to Maria Gerardo. During their lifetime
they acquired a vast estate, consisting of real properties in Manila, Pampanga, and
Bulacan, covered by Transfer Certificates of Title Nos. 41423, 22443, 8858, 32989, 31046,
27285, 6277, 6500, 2057, 6501, 2991, 57403 and 12507/T-337.
When Bibiano Barretto died on February 18, 1936, in the City of Manila, he left his
share of these properties in a will to Salud Barretto, mother of plaintiffs wards, and Lucia
Milagros Barretto and a small portion as legacies to his two sisters Rosa Barretto and
Felisa Barretto and his nephew and nieces. The usufruct of the fishpond situated in barrio
San Roque, Hagohoy, Bulacan, above-mentioned, however, was reserved for his widow,
Maria Gerardo. In the meantime, Maria Gerardo was appointed administratrix, By virtue
thereof, she prepared a project of partition, which was signed by her in her own behalf and
as guardian of the minor Milagros Barretto. Said project of partition was approved by the
Court of First Instance of Manila on November 22, 1939. The distribution of the estate and
the delivery of the shares of the heirs followed forthwith. As a consequence, Salud Barretto

took immediate possession of her share and secured the cancellation of the original certif
ficates of title and the issuance of new titles in her own name.
Everything went well since then. Nobody was heard to complain of any irregularity in
the distribution of the said estate until the widow, Maria Gerardo died on March 5, 1948.
Upon her death, it was discovered that she had executed two wills, in the first of which, she
instituted Salud and Milagros, both surnamed Barretto, as her heirs; and, in the second,
she revoked the same and left all her properties in favor of Milagros Barretto alone. Thus,
the later will was allowed and the first rejected. In rejecting the first will presented by
Tirso Reyes, as guardian of the children of Salud Barretto, the lower court held that Salud
was not the daughter of the decedent Maria Gerardo by her husband Bibiano Barretto. This
ruling was appealed to the Supreme Court, which affirmed the same.
1

Having thus lost this fight for a share in the estate of Maria Gerardo, as a legitimate
heir of Maria Gerardo, plaintiff now falls back upon the remnant of the estate of the
deceased Bibiano Barretto, which was given in usufruct to his widow Maria Gerardo.
Hence, this action for the recovery of onehalf portion, thereof.
This action afforded the defendant an opportunity to set up her right of ownership, not
only of the fishpond under litigation, but of all the other properties willed and delivered to
Salud Barretto, for being a spurious heir, and not entitled to any share in the estate of
Bibiano Barretto, thereby directly attacking the validity, not only of the project of partition,
but of the decision of the court based thereon as well.
The defendant contends that the Project of Partition from which Salud acquired the
fishpond in question is void ab initioand Salud Barretto did not acquire any valid title
thereto, and that the court did not acquire any jurisdiction of the person of the defendant,
who was then a minor. "

Finding for the defendant (now appellee), Milagros Barretto, the lower court
declared the project of partition submitted in the proceedings f or the settlement of
the estate of Bibiano Barretto (Civil Case No. 49629 of the Court of First Instance of
Manila) to be null and void ab initio (not merely voidable) because the distributee,
Salud Barretto, predecessor of plaintiffs (now appellants), was not a daughter of the
spouses Bibiano Barretto and Maria Gerardo. The nullity of the project of partition
was decreed on the basis of Article 1081 of the Civil Code of 1889 (then in force)
providing as follows:
A partition in which a person was believed to be an heir, without being so, has been
included, shall be null and void.

The court a quo further rejected the contention advanced by plaintiffs that since
Bibiano Barretto was free to dispose of one-third (1/3) of his estate under the old
Civil Code, his will was valid in favor of Salud Barretto (nee Lim Boco) to the extent,
at least, of such free part. And it concluded that, as defendant Milagros was the only
true heir of Bibiano Barretto, she was entitled to recover from Salud, and from the
latters children and successors, all the properties received by her from Bibianos
estate, in view of the provisions of Article 1456 of the new Civil Code of the
Philippines establishing that property acquired by fraud or mistake is held by its
acquirer in implied trust for the real owner. Hence, as stated at the beginning of this
opinion, the Court a quo not only dismissed the plaintiffs complaint but ordered
them to return the properties received under the project of partition previously
mentioned as prayed for in defendant Milagros Barrettos counterclaim. However, it
denied defendants prayer for damages. Hence, this appeal interposed by both
plaintiffs and defendant Plaintiffs-appellants correctly point out that Article 1081 of
the old Civil Code has been misapplied to the present case by the court below. The
reason is obvious: Salud Barretto admittedly had been instituted heir in the late
Bibiano Barrettos last will and testament together with defendant Milagros; hence,
the partition had between them could not be one such had with a party who was
believed to be an heir without really being one, and was not null and void under said
article. The legal precept (Article 1081) does not speak of children, or descendants,
but of heirs (without distinction between forced, voluntary or intestate ones), and
the fact that Salud happened not to be a daughter of the testator does not preclude
her being one of the heirs expressly named in his testament; for Bibiano Barretto
was at liberty to assign the free portion of his estate to whomsoever he chose. While
the share (1/2) assigned to Salud impinged on the legitime of Milagros, Salud did
not for that reason cease to be a testamentary heir of Bibiano Barretto.
Nor does the fact that Milagros was allotted in her fathers will a share smaller
than her legitime invalidate the institution of Salud as heir, since there was here no
preterition, or total omission, of a forced heir. For this reason, Neri vs. Akutin, 72
Phil. 322, invoked by appellee, is not at all applicable, that case involving an
instance of preterition or omission of children of the testators former marriage.
Appellee contends that the partition in question was void as a compromise on the
civil status of Salud in violation of Article 1814 of the old Civil Code. This view is
erroneous, since a compromise presupposes the settlement of a controversy through
mutual concessions of the parties (Civil Code of 1889, Article 1809; Civil Code of the

Philippines, Art. 2028); and the condition of Salud as daughter of the testator
Bibiano Barretto, while untrue, was at no time disputed during the settlement 01
the estate of the testator. There can be no compromise over issues not in dispute.
And while a compromise over civil status is prohibited, the law nowhere forbids a
settlement by the parties over the share that should correspond to a claimant to the
estate.
At any rate, independently of a project of partition which, as its own name implies,
is merely a proposal for distribution of the estate, that the court may accept or
reject, it is the court alone that makes the distribution of the estate and determines
the persons entitled thereto and the parts to which each is entitled (Camia vs.
Reyes, 63 Phil. 629, 643; Act 190, Section 750; Rule 90, Rules of 1940; Rule 91,
Revised Rules of Court), and it is that judicial decree of distribution, once final, that
vests title in the distributees. If the decree was erroneous or not in conformity with
law or the testament, the same should have been corrected by opportune appeal; but
once it had become final, its binding effect is like that of any other judgment in
rem, unless properly set aside for lack of jurisdiction or fraud.
It is thus apparent that where a court has validly issued a decree of distribution
of the estate, and the same has become final, the validity or invalidity of the project
of partition becomes irrelevant.
It is, however, argued for the appellee that since the courts distribution of the
estate of the late Bibiano Barretto was predicated on the project of partition
executed by Salud Barretto and the widow, Maria Gerardo (who signed for herself
and as guardian of the minor Milagros Barretto), and since no evidence was taken of
the filiation of the heirs, nor were any findings of fact or law made, the decree of
distribution can have no greater validity than that of the basic partition, and must
stand or fall with it, being in the nature of a judgment by consent, based on a
compromise. Saminiada vs. Mata, 92 Phil. 426, is invoked in support of the
proposition, That case is authority for the proposition that a judgment by
compromise may be set aside on the ground of mistake or fraud, upon petition
filedin due time, where petition for relief was filed before the compromise
agreement, a proceeding, was consummated(cas. cit. at p. 436). In the case before
us, however, the agreement of partition was not only ratified by the courts decree of
distribution, but actually consummated, so much so that the titles in the name of

the deceased were cancelled, and new certificates issued in favor of the heirs, long
before the decree was attacked. Hence, Saminiada vs. Mata does not apply.
Moreover, the defendant-appellees argument would be plausible if it were shown
that the sole basis for the decree of distribution was the project of partition. But, in
fact, even without it, the distribution could stand, since it was in conformity with
the probated will of Bibiano Barretto, against the provisions whereof no objection
had been made. In fact, it was the courts duty to do so. Act 190, section 640, in force
in 1939, provided:
SEC. 640. Estate, How Administered.When a will is thus allowed, the court shall grant
letters testamentary, or letters of administration with the will annexed, and such letters
testamentary or of administration, shall extend to all the estate of the testator in the
Philippine Islands. Such estate, after the payment of just debts and expenses of
administration, shall be disposed of according to such will, so far as such will may operate
upon it; and the residue, if any, shall be disposed of as is provided by law in cases of estates
in these Islands belonging to persons who are inhabitants of another state or country.
(Italics supplied)

That defendant Milagros Barretto was a minor at the time the probate court
distributed the estate of her father in 1939 does not imply that the said court was
without jurisdiction to enter the decree of distribution. Passing upon a like issue,
this Court ruled in Ramos vs. Ortuzar, 89 Phil. Reports, pp. 741 and 742:
If we are to assume that Richard Hill and Marvin Hill did not formally intervene, still they
would be concluded by the result of the proceedings, not only as to their civil status but as
the distribution of the estate as well. As this Court has held inManolo vs. Paredes, 47 Phil.
938, The proceeding for probate is one in rem (40 Cyc., 1265) and the court acquires
jurisdiction over all persons interested, through the publication of He notice prescribed by
section 630 C.P.C.; and any order that may be entered therein is binding against all of
them. (See also in reEstate of Johnson, 39 Phil. 156.) A final order of distribution of the
estate of a deceased person vests the title to the land of the estate in the distributees.
(Santos vs. Roman Catholic Bishop of Nueva Caceres, 45 Phil. 895.) There is no reason why,
by analogy, these salutary doctrines should not apply to intestate proceedings.
The only instance that we can think of in which a party interested
proceeding may have a final liquidation set aside is when he is left out
circumstances beyond his control or through mistake or inadvertence not
negligence. Even then, the better practice to secure relief is reopening of the

in a probate
by reason of
imputable to
same case by

proper motion within the reglementary period, instead of an independent action the effect of
which, if successful, would be, as in the instant case, for another court or judge to throw out
a decision or order already final and executed and reshuffle properties long ago distributed
and disposed of.

It is well to observe, at this juncture, as this Court expressly declared in Reyes vs.
Barretto Datu, 94 Phil. 446(Amd Rec. Appeal, pp. 158, 157), that:
x x x lt is argued that Lucia Milagros Barretto was a minor when she signed the partition,
and that Maria Gerardo was not her judicially appointed guardian. The claim is not true.
Maria Gerardo signed as guardian of the minor. (Secs. 3 and 5, Rule 97, Rules of Court.)
The mere statement in the project of partition that the guardianship proceedings of the
minor Lucia Milagros Barretto are pending in the court, does not mean that the guardian
had not yet been appointed; it meant that the guardianship proceedings had not yet been
terminated, and as a guardianship proceedings begin with the appointment of a guardian,
Maria Gerardo must have been already appointed when she signed the project of partition.
There is, therefore, no irregularity or defect or error in the project of partition, apparent on
the record of the testate proceedings, which shows that Maria Gerardo had no power or
authority to sign the project of partition as guardian of the minor Lucia Milagros Barretto,
and, consequently, no ground for the contention that the order approving the project of
partition is absolutely null and void and may be attacked collaterally in these proceedings.

So that it is now incontestable that appellee Milagros Barretto was not only made a
party by publication but actually appeared and participated in the proceedings
through her guardian: she, therefore, can not escape the jurisdiction of the Manila
Court of First Instance which settled her fathers estate.
Defendant-appellee further pleads that as her mother and guardian (Maria
Gerardo) could not have ignored that the distributee Salud was not her child, the act
of said widow in agreeing to the oft-cited partition and distribution was a fraud on
appellees rights and entitles her to relief. In the first place, there is no evidence
that when the estate of Bibiano Barretto was judicially settled and distributed
appellants predecessor, Salud Lim Boco Barretto, knew that she was not Bibianos
child: so that if fraud was committed, it was the widow, Maria Gerardo, who was
solely responsible, and neither Salud nor her minor children, appellants herein, can
be held liable therefor. In the second place, granting that there was such fraud,
relief therefrom can only be obtained within 4 years from its discovery, and the
record shows that this period had elapsed long ago.

Because at the time of the distribution Milagros Barretto was only 16 years old
(Exhibit 24), she became of age five years later, in 1944. On that year, her cause of
action accrued to contest on the ground of fraud the court decree distributing her
fathers estate and the four-year period of limitation started to run, to expire in
1948 (Section 43, Act. 190). In fact, conceding that Milagros only became aware of
the true facts in 1946 (Appellees Brief, p. 27), her action still became extinct in
1950. Clearly, therefore, the action was already barred when in August 31, 1958 she
filed her counterclaim in this case contesting the decree of distribution of Bibiano
Barrettos estate.
In order to evade the statute of limitations, Milagros Barretto introduced evidence that appellant Tirso
Reyes had induced her to delay filing action by verbally promising to reconvey the properties received by his
deceased wife, Salud. There is no reliable evidence of the alleged promise, which rests exclusively on the oral
assertions of Milagros herself and her counsel. In, fact, the trial court made no mention of such promise in the
decision under appeal. Even more: granting arguendo that the promise was made, the same can not bind the
wards, the minor children of Salud, who are the real parties in interest. An abdicative waiver of rights by a
guardian, being an act of disposition, and not of administration, can not bind his wards, being null and void as
to them unless duly authorized by the proper court (Ledesma Hermanos vs. Castro, 55 Phil. 136, 142).
In resume, we hold (1) that the partition had between Salud and Milagros Barretto in the proceedings for
the settlement of the estate of Bibiano Barretto duly approved by the Court of First Instance of Manila in 1939,
in its Civil Case No. 49629, is not void for being contrary to either Article 1081 or 1814 of the Civil Code of 1889;
(2) that Milagros Barrettos action to contest said partition and decree of distribution is barred by the statute of
limitations; and (3) that her claim that plaintiff-appellant guardian is a possessor in bad faith and should
account for the fruits received from the properties inherited by Salud Barretto (nee Lim Boco) is legally
untenable. It follows that the plaintiffs action for partition of the fishpond described in the -complaint should
have been given due course.
Wherefore, the decision of the Court of First Instance of Bulacan now under appeal is reversed and set aside
in so far as it orders plaintiff-appellant to reconvey to appellee Milagros Barretto-Datu the properties
enumeracted in said decision, and the same is affirmed in so far as it denies any right of said appellee to
accounting. Let the records be returned to the court of origin, with instructions to proceed with the action for
partition of the fishpond (Lot No. 4, Plan Psu-4709), covered by TCT No. T13734 of the Office of the Register of
Deeds of Bulacan, and for the accounting of the fruits thereof, as prayed for in the complaint. No costs.
Concepcion, C.J., Dizon, Regala, Makalintal, Bengzon, J.P., Zaldivar, Sanchez and Castro, JJ., concur.
Judgment reversed in part and affirmed in part.

No. L-24365. June 30, 1966.

IN THE MATTER OF THE INTESTATE ESTATE OF EDWARD E.
CHRISTENSEN, deceased. ADOLFO C. AZNAR, executor and appellee, vs. MARIA
LUCY CHRISTENSEN DUNCAN, oppositor and appellant. MARIA HELEN
CHRISTENSEN, oppositor and appellee.
Wills; Succession; Rights of compulsory heir; Preterition defined.Preterition is the
omission of the heir in the will, either by not naming him at all or, while mentioning him as
father, son, etc., by not instituting him as heir without disinheriting him expressly, nor
assigning to him some part of the testators estate. Whether the testator gave a legacy to a
person, whom he characterized in the testamentary provision as not related to him, but
later this person was judicially declared to be his acknowledged natural child, the case is
not a case of preterition but a case of completion of legitime. The institution in the will
would not be annulled. There would be no intestacy.
Same; Right of compulsory heir, to whom testator left property less than his legitime to
completion of legitime even if he is not referred to in will as heir.In order that the right of a
forced heir may be limited to the completion of his legitime (instead of the annulment of the
institution of heirs) it is not necessary that what has been left to him in the will by any
title, as by legacy, be granted to him in his capacity as heir. As successional rights are
vested as of the moment of death, the forced heir is entitled to the fruits and increments of
his legitime from the testators death.
Appeals; Substitution of heirs is not an issue where substitute heirs are not parties to
the case.The reference to and discussion of the rights of the substitute heirs in appellants
brief appears to be merely for the purpose of refuting the theory advanced by appellees and
not f or the purpose of having the rights of said heirs defined insofar as, under the terms of
the will, they may affect the legitime of the oppositor-appellant. This point of course was not
and could hardly have been squarely raised as an issue inasmuch as the substitute heirs are
not parties in this case.
Same; No substitution on legitime.The legitime must descend to the forced heir in fee
simple, since the testator cannot impose on it any burden, encumbrance, condition or
substitution (Arts, 864. 872 and 904. New Civil Code).

APPEAL from an order of the Court of First Instance of Davao. Cusi, Jr., J.
The facts are stated in the opinion of the Court.

J; Salonga and L.M. Abellera for oppositor and appellee.

Carlos Dominguez, Jr. for executor-appellee.
M.R. Sotelo for appellant.
MAKALINTAL, J.:
Edward E. Christensen, a citizen of California with domicile in the Philippines, died
leaving a will executed on March 5, 1951. The will was admitted to probate by the
Court of First Instance of Davao in its decision of February 28, 1954. In that same
decision the court declared that Maria Helen Christensen Garcia (hereinafter
referred to as Helen Garcia) was a natural child of the deceased. The declaration
was appealed to this Court, and was affirmed in its decision of February 14, 1958
(G.R. No. L-11484).
In another incident relative to the partition of the deceaseds estate, the trial
court approved the project submitted by the executor in accordance with the
provisions of the will, which said court found to be valid under the law of California.
Helen Garcia appealed from the order of approval, and this Court, on January 31,
1963, reversed the same on the ground that the validity of the provisions of the will
should be governed by Philippine law, and returned the case to the lower court with
instructions that the partition be made as provided by said law (G.R. No. L-16749).
On October 29, 1964, the Court of First Instance of Davao issued an order
approving the project of partition submitted by the executor, dated June 30, 1964,
wherein the properties of the estate were divided equally between Maria Lucy
Christensen Duncan (named in the will as Maria Lucy Christensen Daney, and
hereinafter referred to as merely Lucy Duncan), whom the testator had expressly
recognized in his will as his daughter (natural) and Helen Garcia, who had been
judicially declared as such after his death. The said order was based on the
proposition that since Helen Garcia had been preterited in the will the institution of
Lucy Duncan as heir was annulled, and hence the properties passed to both of them
as if the deceased had died intestate, saving only the legacies left in favor of certain
other persons, which legacies have been duly approved by the lower court and
distributed to the legatees.

The case is once more before us on appeal, this time by Lucy Duncan, on the sole
question of whether the estate, after deducting the legacies, should pertain to her
and to Helen Garcia in equal shares, or whether the inheritance of Lucy Duncan as
instituted heir should be merely reduced to the extent necessary to cover the
legitime of Helen Garcia, equivalent to 1/4 of the entire estate. The will of Edward
E. Christensen contains, among others, the following clauses which are pertinent to
the issue in this case:
1. 3.I declare x x x that I have but ONE (1) child, named MARIA LUCY
CHRISTENSEN (Now Mrs. Bernard Daney), who was born in the Philippines
about twenty-eight years ago, who is now residing at No. 665 Rodger Young Village,
Los Angeles, California, U.S.A.
2. 4.I further declare that I now have no living ascendants, and no descendants except
my above-named daughter, MARIA LUCY CHRISTENSEN DANEY.
x

1. 7.I give, devise, and bequeath unto MARIA HELEN CHRISTENSEN, now married
to Eduardo Garcia, about eighteen years of age and who, notwithstanding the fact
that she was baptized Christensen, is not in any way related to me, nor has she
been at any time adopted by me, and who, from all information I have now resides
in Egpit, Digos, Davao, Philippines, the sum of THREE THOUSAND SIX
HUNDRED PESOS (P3,600.00), Philippine Currency, the same to be deposited in
trust for the said Maria Helen Christensen with the Davao Branch of the Philippine
National Bank, and paid to her at the rate of One Hundred Pesos (P100.00),
Philippine Currency per month until the principal thereof as well as any interest
which may have accrued thereon, is exhausted.
x

1. 12,I hereby give, devise and bequeath, unto my wellbeloved daughter, the said
MARIA LUCY CHRISTENSEN DANEY (Mrs. Bernard Daney) now residing, as
aforesaid, at No. 665 Rodger Young Village, Los Angeles, California, U.S.A., all the
income from the rest, remainder, and residue of my property and estate, real,
personal and/or mixed, of whatsoever kind or character, and wheresoever situated,
of which I may be possessed at my death and which may have come to me from any
source whatsoever, during her lifetime; Provided, however, that should the said
MARIA LUCY CHRISTENSEN DANEY at anytime prior to her decease having
living issue, then and in that event, the life interest herein given shall terminate,

and if so terminated, then I give, devise, and bequeath to my daughter, the said
MARIA LUCY CHRISTENSEN DANEY the rest, remainder and residue of my
property with the same force and effect as if I had originally so given, devised and
bequeathed it to her; and provided, further, that should the said MARIA LUCY
CHRISTENSEN DANEY die without living issue, then, and in that event, I give,
devise and bequeath all the rest, remainder and residue of my property, one-half
(1/2) to my well-beloved sister, Mrs. CARRIE LOUISE C. BORTON, now residing at
No. 2124, Twentieth Street, Bakersfield California, U.S.A., and one-half (1/2) to the
children of my deceased brother, JOSEPH C. CHRISTENSEN, namely: Mrs. Carol
F. Ruggaver, of Los Angeles, California, U.S.A., and Joseph Raymond Christensen,
of Manhattan Beach, California, U.S.A., share and share alike, the share of any of
the three above named who may predecease me, to go in equal parts to the
descendants of the deceased; and, provided further, that should my sister Mrs.
Carol Louise C. Borton die before my own decease, then, and in that event, the
share of my estate devised to her herein I give, devise and bequeath to her children,
Elizabeth Borton de Trevio, of Mexico City Mexico; Barbara Borton Philips, of
Bakersfield, California U.S.A., and Richard Borton, of Bakersfield, California,
U.S.A., or to the heirs of any of them who may die before my own decease, share
and share alike.

The trial court ruled, and appellee now maintains, that there has been preterition of
Helen Garcia, a compulsory heir in the direct line, resulting in the annulment of the
institution of heir pursuant to Article 854 of the Civil Code, which provides:
ART 854 The preterition or omission of one, some, or all of the compulsory heirs in the
direct line, whether living at the time of the execution of the will or born after the death of
the testator, shall annul the institution of heir; but the devises and legacies shall be valid
insofar as they are not inofficious.

On the other hand, appellant contends that this is not a case of preterition, but is
governed by Article 906 of the Civil Code, which says: Any compulsory heir to whom
the testator has left by any title less than the legitime belonging to him may
demand that the same be fully satisfied. Appellant also suggests that considering
the provisions of the will whereby the testator expressly denied his relationship
with Helen Garcia, but left to her a legacy nevertheless, although less than the
amount of her legitime, she was in effect defectively disinherited within the
meaning of Article 918, which reads:

ART. 918. Disinheritance without a specification of the cause, or for a cause the truth of
which, if contradicted, is not proved, or which is not one of those set forth in this Code, shall
annul the institution of heirs insofar as it may prejudice the person disinherited; but the
devises and legacies and other testamentary dispositions shall be valid to such extent as
will not impair the legitime.

Thus, according to appellant, under both Articles 906 and 918, Helen Garcia is
entitled only to her legitime, and not to a share of the estate equal that of Lucy
Duncan as if the succession were intestate.
Article 854 is a reproduction of Article 814 of the Spanish Civil Code; and Article
906 of Article 815. Commenting on Article 815, Manresa explains:
Como dice Goyena, en el caso de pretericion puede presumirse ignorancia o falta de
memoria en el testador; en el de dejar algo al heredero forzoso, no. Este no se encuentra
privado totalmente de su legitima: ha, recibido por cualquier titulo una porcion de los bienes
hereditarios, porcion que no alcanza a completar la legitima, pero que influeye
poderosamente en el animo del legislador para decidirle a adoptar una solucion bien
diferente de la sealada para el caso de pretericion.
El testador no ha olvidado por completo al heredero forzoso; le ha dejado bienes; pero
haciendo un calculo equivocado, ha repartido en favor de extraos o en favor de otros
legitimarios por via de legado, donacion o mejora mayor cantidad de la que la ley de
consentia disponer. El heredero forzoso no puede perder su legitima, pero tampoco puede
pedir mas que la misma. De aqui su derecho a reclamar solamente lo que le falta; al
complemento de la porcion que forzosamente la corresponde.
x x x Dejar el testador por cualquier titulo, equivale a disponer en testamento por titulo
de herencia, legado o mejora, y en favor de legitimarios, de alguna cantidad o porcion de
bienes menos que la legitima o gual a la misma. Tal sentido, que es. el mas proprio en al
articulo 815, no pugna tampoco con la doctrina de la ley.Cuando en el testamento se deja
algo al heredero forzoso, la pretericion es incompleta: es mas formularia que real. Cuando en
el testamento nada se deja el legitimario, hay verdadera pretericion. (6 Manresa, 7th Ed.,
1951, p. 437.)

On the difference between preterition of a compulsory heir and the right to ask for
completion of his legitime, Sanchez Roman says:
La desheredacion, como expresa, es siempre voluntaria; la pretericion puede serlo, pero se
presume involuntaria la omision en que consiste, en cuanto olvida o no atiende el testador

en. su testamento a la satisfaccion del derecho a la legitima del heredero forzoso preterido,
prescindiendo absoluta y totalmente de el y nomencionandole en ninguna de sus
disposiciones testamentarias, o no instituyendole en parte alguna de la herencia, ni por
titulo de heredero ni por el de legatar o aunque le mencionara o nombrara sin dejarle mas o
menos bienes. Si le dejara algunos, por pocos que sean e insuficientes para cubrir su
legitima, ya no seria caso depretericion, sino de complemento de aquella. El primer supuesto
o de pretericion se regula por el articulo 814, y produce accion de nulidad de la institucion
de heredero; y el segundo, o de complemento de legitima por el 815 y solo origina la
accion ad suplementum, para completar la legitima. (Sanchez Roman, Tomo VI, Vol. 2, p.
1131.)

Manresa defines preterition as the omission of the heir in the will, either by not
naming him at all or, while mentioning him as father, son, etc., by not instituting
him as heir without disinheriting him expressly, nor assigning to him some part of
the properties. Manresa continues:
Se necesita, pues: (a) Que la omision se refiera a un heredero forzoso; (b) Que la omision
sea completa; que el heredero forzoso nada reciba en el testamento.
xxx

xxx

B. Que la omision sea completaEsta condicion se deduce del mismo Articulo 814 y
resulta con evidencia al relacionar este articulo con el 815. El heredero forzoso a quien el
testador deja algo por cualquier titulo en su testamento, no se halla propiamente omitido,
pues se le nombra y se le reconoce participacion en los bienes hereditarios. Podria discutirse
en el Articulo 814 si era o no necesario que se reconociese el derecho del heredero como tal
heredero, pero el articulo 815 desvanece esta duda Aquel se ocupa de privacion completa o
total, tacita, este, de la privacion parcial. Los efectos deben ser y son como veremos,
completamente distintos. (6 Manresa, p. 428.)
La privacion de la legitima puede ser total o parcial.
Privar totalmente de la legitima es negarla en absoluto al legitimario, despojarle de ella
por completo. A este caso se refiere el articulo 814. Privar parcialmente de la legitima, es
menguarla o reducirla, dejar al legitimario una porcion menor que la que le corresponde. A
este caso se ref iere el articulo 815. El 813 sienta, pues, una regla general, y las
consecuencias del que brantamiento de esta regla se determina en los articulos 814 y 815."
(6 Manresa p. 418.)

Again Sanchez Roman:

QUE LA OMISION SEA TOTAL.Aunque el articulo 814 no consigna de modo expreso

esta circumstancia de que la pretericion o falta de mencion e institucion o disposicion
testamentaria a su favor, sea total, completa y absoluta, asi se deduce de no hacer distincion
o salvedad alguna empleandola en terminos generales; pero sirve a confirmarlo de un modo
indudable el siguiente articulo 815, al decir que el heredero forzoso a quien el testador haya
dejado, por cualquier titulo, menos de la legitima que la corresponda, podria pedir el
complemento de la misma, lo cual yano son el caso ni los efectos de la pretericion, que anula
la institucion, sino simplemente los del suplemento necesario para cubrir su legitima.
(Sanchez RomanTomo VI, Vol. 2.0 p. 1133.)

The question may be posed: In order that the right of a forced heir may be limited
only to the completion of his legitime (instead of the annulment of the institution of
heirs) is it necessary that what has been left to him in the will by any title, as by
legacy, be granted to him in his capacity as heir, that is, a titulo de heredero?In
other words, should he be recognized or referred to in the will as heir? This question
is pertinent because in the will of the deceased Edward E. Christensen, Helen
Garcia is not mentioned as an heirindeed her status as such is deniedbut is
given a legacy of P3,600.00.
While the classical view, pursuant to the Roman law, gave an affirmative answer
to the question, according to both Manresa (6 Manresa 7th 3rd. 436) and Sanchez
Roman (Tomo VI, Vol. 2.0p. 937), that view was changed by Article 645 of the
Proyecto de Codigo de 1851," later on copied in Article 906 of our own Code.
Sanchez Roman, in the citation given above, comments as follows:
RESPECTO DEL COMPLEMENTO DE LA LEGITIMA.Se inspira el Codigo en esta
materia en la doctrina clasica del Derecho romano y patrio (2); pero con alguna racional
modificacion. Concedian aquellos precedentes legales al heredero forzoso, a quien no se le
dejaba por titulo de tal el completo de su legitima, la accion para invalidar la institucion
hecha en el testamento y reclamar y obtener aquella mediante el ejercicio de la querella de
inoficioso, y aun cuando resultara favorecido como donatario, por otro titulo que no fuera el
de heredero, sino al honor de que se le privaba no dandole este caracter, y solo cuando era
instituido heredero en parte o cantidad inferior a lo que le correspondiera por legitima, era
cuando bastaba el ejercicio de la accion ad suplementum para completarla, sin necesidad de
anular las otras instituciones de heredero o demas disposiciones contenidas en el testamento,

El Articulo 851 se aparta de este criterio estricto y se ajusta a la unica necesidad

que le inspira, cual es la de que secomplete la legitima del heredero forzoso, a
quien por cualquier titulo se haya dejado menos de lo que le corresponda, y se le

otorga tan solo el derecho de pedir elcomplemento de la misma sin necesidad de que
se anulen las disposiciones testamentarias, que se reduciran en lo que sean
inoficiosas, iciosas, conforme al articulo 817, cuya interpretacion y sentido tienen ya
en su apoyo la sancion de la jurisprudencia (3); siendo condicion precisa que lo que
se hubiere dejado de menos de la legitima al heredero forzoso, lo haya sido en el
testamento, o sea por disposicion del testador, segun lo revela el texto del articulo,
el heredero forzoso a quien el testador haya dejado, etc., esto es, por titulo de legado
o donacion mortis causa en el testamento y, no fuera de al. (Sanchez Roman, Tomo
VI, Vol. 2.0p. 937.)"
Manresa cites particularly three decisions of the Supreme Court of Spain dated
January 16, 1895, May 25, 1917, and April 23, 1932, respectively. In each one of
those cases the testator left to one who was a forced heir a legacy worth less than
the legitime, but without referring to the legatee as an heir or even as a relative,
and willed the rest of the estate to other persons. It was held that Article 815
applied, and the heir could not ask that the institution of heirs be annulled entirely,
but only that the legitime be completed. (6 Manresa, pp. 438, 441.)
The f oregoing solution is indeed more in consonance with the expressed wishes
of the testator in the present case as may be gathered very clearly from the
provisions of his will. He refused to acknowledge Helen Garcia as his natural
daughter, and limited her share to a legacy of P3,600.00. The fact that she was
subsequently declared judicially to possess such status is no reason to assume that
had the judicial declaration come during his lifetime his subjective attitude towards
her would have undergone any change and that he would have willed his estate
equally to her and to Lucy Duncan, who alone was expressly recognized by him.
The decision of this Court in Neri, et al. v. Akutin, 74 Phil. 185, is cited by appellees
in support of their theory of preterition. That decision is not here applicable,
because it referred to a will where the testator left all his property by universal
title to the children by his second marriage, and (that) without expressly
disinheriting the children by his first marriage, he left nothing to them or, at least,
some of them. In the case at bar the testator did not entirely omit oppositorappellee Helen Garcia, but left her a legacy of P3,600.00.
The estate of the deceased Christensen upon his death consisted of 399 shares of
stocks in the Christensen Plantation Company and a certain amount in cash. One-

fourth (1/4) of said estate descended to Helen Garcia as her legitime. Since she
became the owner of her share as of the moment of the death of the decedent (Arts.
774, 777, Civil Code), she is entitled to a corresponding portion of all the fruits or
increments thereof subsequently accruing. These include the stock dividends on the
corporate holdings. The contention of Lucy Duncan that all such dividends pertain
to her according to the terms of the will cannot be sustained, for it would in effect
impair the right of ownership of Helen Garcia with respect to her legitime.
One point deserves to be here mentioned, although no reference to it has been
made in the brief for oppositorappellant. It is the institution of substitute heirs to
the estate bequeathed to Lucy Duncan in the event she should die without living
issue. This substitution results in effect from the fact that under paragraph 12 of
the will she is entitled only to the income from said estate, unless prior to her
decease she should have living issue, in which event she would inherit in full
ownership; otherwise the property will go to the other relatives of the testator
named in the will. Without deciding this point, since it is not one of the issues raised
before us, we might call attention to the limitations imposed by law upon this kind
of substitution, particularly that which says that it can never burden the legitime
(Art. 864 Civil Code), which means that the legitime must descend to the heir
concerned in fee simple.
Wherefore, the order of the trial court dated October 29, 1964, approving the project
of partition as submitted by the executor-appellee, is hereby set aside; and the case
is remanded with instructions to partition the hereditary estate anew as indicated
in this decision, that is, by giving to oppositor-appellee Maria Helen Christensen
Garcia no more than the portion corresponding to her as legitime, equivalent to onefourth (1/4) of the hereditary estate, after deducting all debts and charges, which
shall not include those imposed in the will of the decedent, in accordance with
Article 908 of the Civil Code. Costs against appellees in this instance.
Chief Justice Concepcion and Justices J.B.L. Reyes,Barrera, Dizon, Regala, J.P.
Bengzon, Zaldivar andSanchez, concur.
RESOLUTION

ON

MOTION FOR RECONSIDERATION

July 30, 1967.

MAKALINTAL, J.:
Oppositor-appellant has filed an ex-parte petition dated July 11, 1966, making reference to
an alleged oversight and asking for the corresponding correction, in the last paragraph
before the dispositive part of our decision, which reads as follows:
One point deserves to be here mentioned, although no reference to it has been made in the brief for
oppositor-appellant. It is the institution of substituted heirs to the estate bequeathed to Lucy Duncan
in the event she should die without living issue. This substitution results in effect from the fact that
under paragraph 12 of the will she is entitled only to the income f rom said estate, unless prior to her
decease she should have living issue, in which event she would inherit in full ownership; otherwise
the property will go to the other relatives of the testator named in the will. Without deciding this
point, since it is not one of the issues raised before us, we might call attention to the limitations
imposed by law upon this kind of substitution, particularly that which says that it can never burden
the legitime (Art 864, Civil Code), which means that the legitime must descend to the heir concerned
in fee simple. (Decision, June 30, 1966, pages 1415; italics ours).

Oppositor-appellant points out that the matter of substitution of heirs was taken up and
discussed in her brief, particularly in pages 28 and 32 thereof. This is indeed quite true, but
the reference to and discussion of the rights of the substitute heirs (called American heirs in
the brief) appears to be merely for the purpose of refuting the theory advanced by appellees
and not for the purpose of having the rights of said heirs defined in so far as, under the
terms of the will, they may affect the legitime of oppositorappellant. This point of course
was not and could hardly have been squarely raised as an issue inasmuch as the substitute
heirs are not parties in this case. We have nevertheless called attention to the limitations
imposed by law upon this kind of substitution, because in the brief for oppositor-appellant,
at page 45, she makes the conclusion that the Last Will and Testament of Edward E.
Christensen are valid under Philippine Law and must be given full force and effect; and to
give them full force and effect would precisely affect the legitime of oppositorappellant.
Wherefore, the last paragraph before the dispositive part of our decision quoted above is
amended by eliminating the following phrase in the first sentence: although no reference to
it has been made in the brief for oppositorappellant.
Chief

Justice

Concepcion and Justices

J.B.L.

Reyes,Barrera, Dizon, J.P.

Bengzon, Zaldivar and Sanchez,concur. Messrs. Justices Regala and Castro took no part.

Order set aside and case remanded to lower court for further proceedings.
Note.The instant Aznar case is the third incident in the proceedings for the settlement
of the estate of Edward E. Christensen to be elevated to the Supreme Court. The two prior
cases are Aznar vs. Garcia, 102 Phil, 1055 andAznar vs. Christensen Garcia, 61 O.G. 7302.
With respect to preterition (the correct term is pretermission, Olaes vs. Tanda, L21919, May 19, 1966, 17 Supreme Court Reports Annotated), see notes underNuguid vs.
Nuguid, L-23445, June 23, 1967, per Sanchez, J.

No. L-23445. June 23, 1966.

REMEDIOS NUGUID, petitioner and appellant, vs. FELIX NuGUID and PAZ
SALONGA NUGUID, oppositors and appellees.
Wills; Succession; Probate of will; Courts area of inquiry is limited to extrinsic validity
of will; When Court may rule on intrinsic validity.In a proceeding for the probate of a will,
the courts area of inquiry is limited to an examination of, and resolution on, the extrinsic
validity of the will, the due execution thereof, the testatrixs testamentary capacity and the
compliance with the requisites or solemnities prescribed by law. The intrinsic validity of the
will normally comes only after the court has declared that the will has been duly
authenticated. However, where practical considerations demand that the intrinsic validity
of the will be passed upon, even before it is probated, the Court should meet that issue.
Same; Preterition; Omission of forced heirs in the will.Where the deceased left no
descendants, legitimate or illegitimate, but she left forced heirs in the direct ascending line
her parents, and her holographic will does not explicitly disinherit them but simply omits
their names altogether, the case is one of preterition of the parents, not a case of ineffective
disinheritance.
Same; Preterition distinguished from disinheritance.Preterition consists in the
omission in the testators will of the forced heirs or anyone of them, either because they are
not mentioned therein, or, though mentioned, they are neither instituted as heirs nor are
expressly disinherited. (Neri vs.Akutin, 72 Phil., 325). Disinheritance, in turn, is
a testamentarydisposition depriving any compulsory heir of his share in thelegitime for a
cause authorized by law. (Justice J.B.L. Reyes and R.C. Puno, An Outline of Philippine
Civil Law, 1966 ed., Vol. III, p. 8, citing cases.) Disinheritance is always voluntary;
preterition, upon the other hand, is presumed to be involuntary (Snchez Romn,
Estudios de Derecho Civil, 2nd edition, Volumen 2.o, p. 1131).

Same; Effects flowing from preterition and disinheritance.The effects flowing from
preterition are totally different from those of disinheritance. Preterition under Article 854
of the New Civil Code shall annul the institution of heir. This annulment isin toto, unless
in the will there are, in addition, testamentary dispositions in the form of devises or
legacies. In ineffective disinheritance under Article 918 of the same Code, such
disinheritance shall also annul the institution of heirs, but only insofar as it may
prejudice the person disinherited, which last phrase was omitted in the case of preterition
(III Tolentino, Civil Code of the Philippines, 1961 Edition, p. 172). Better stated yet, in
disinheritance the nullity is limited to that portion of the estate of which the disinherited
heirs have been illegally deprived.
Same; When institution of heirs is void.Where the onesentence will institutes the
petitioner as the sole, universal heir and preterits the parents of the testatrix, and it
contains no specif ic legacies or bequests, such universal institution of petitioner, by itself, is
void. And intestate succession ensues.
Same; When legacies and devises merit consideration.Legacies and devises merit
consideration only when they are so expressly given as such in a will. Nothing in Article 854
of the New Civil Code suggests that the mere institution of a universal heir in a willvoid
because of preteritionwould give the heir so instituted a share in the inheritance. As to
him, the will is inexistent. There must be, in addition to such institution, a testamentary
disposition granting him bequests or legacies apart and separate from the nullified
institution of heir.
Same; Institution of heirs cannot be considered a legacy.If every case of institution of
heirs may be made to fall into the concept of legacies and betterments reducing the bequest
accordingly, then the provisions of Articles 814 and 851 of the old Civil Code, regarding
total or partial nullity of the institution, would be absolutely meaningless and will never
have any application at all. And the remaining provisions contained in said articles
concerning the reduction of inofficious legacies or betterments would be a surplusage
because they would be absorbed by Article 817 of the same Code.

APPEAL from an order of the Court of First Instance of Rizal, San Diego, J.
The facts are stated in the opinion of the Court.
Custodio O. Partade for petitioner and appellant.
Beltran, Beltran and Beltran for oppositors and appellees.

SANCHEZ, J.:
Rosario Nuguid, a resident of Quezon City, died on December 30, 1962, single,
without descendants, legitimate or illegitimate. Surviving her were her legitimate
parents, Felix Nuguid and Paz Salonga Nuguid, and six (6) brothers and sisters,
namely: Alfredo, Federico, Remedios, Conrado, Lourdes and Alberto, all surnamed
Nuguid.
On May 18, 1963, petitioner Remedios Nuguid filed in the Court of First Instance
of Rizal a holographic will allegedly executed by Rosario Nuguid on November 17,
1951, some 11 years before her demise. Petitioner prayed that said will be admitted
to probate and that letters of administration with the will annexed be issued to her.
On June 25, 1963, Felix Nuguid and Paz Salonga Nuguid, concededly the
legitimate father and mother of the deceased Rosario Nuguid, entered their
opposition to the probate of her will. Ground therefor, inter alia, is that by the
institution of petitioner Remedios Nuguid as universal heir of the deceased,
oppositorswho are compulsory heirs of the deceased in the direct ascending line
were illegally preterited and that in consequence the institution is void.
On August 29, 1963, before a hearing was had on the petition for probate and
objection thereto, oppositors moved to dismiss on the ground of absolute preterition.
On September 6, 1963, petitioner registered her opposition to the motion to
dismiss.
The courts order of November 8, 1963, held that the will in question is a
complete nullity and will perforce create intestacy of the estate of the deceased
Rosario Nuguid and dismissed the petition without costs.
A motion to reconsider having been thwarted below, petitioner came to this Court
on appeal.
1. Right at the outset, a procedural aspect has engaged our attention. The case is
for the probate of a will. The courts area of inquiry is limitedto an examination of,
and resolution on, the extrinsic validity of the will. The due execution thereof, the
testatrixs testamentary capacity, and the compliance with the requisites or
solemnities by law prescribed, are the questions solely to be presented, and to be

acted upon, by the court Said court at this stage of the proceedingsis not called
upon to rule on theintrinsic validity or efficacy of the provisions of the will, the
legality of any devise or legacy therein.
1

A peculiar situation is here thrust upon us. The parties shunted aside the
question of whether or not the will should be allowed probate. For them, the meat of
the case is the intrinsic validity of the will. Normally, this comes only after the court
has declared that the will has been duly authenticated. But petitioner and
oppositors, in the court below and here on appeal, travelled on the issue of law, to
wit: Is the will intrinsically a nullity? We pause to reflect. If the case were to be
remanded for probate of the will, nothing will be gained. On the contrary, this
litigation will be protracted. And for aught that appears in the record, in the event
of probate or if the court rejects the will, probability exists that the case will come
up once again before us on the same issue of the intrinsic validity or nullity of the
will. Result: waste of time, effort, expense, plus added anxiety. These are the
practical considerations that induce us to a belief that we might as well meet headon the issue of the validity of the provisions of the will in question. After all, there
exists a justiciable controversy crying for solution.
2

2. Petitioners sole assignment of error challenges the correctness of the

conclusion below that the will is a complete nullity. This exacts from us a study of
the disputed will and the applicable statute.
Reproduced hereunder is the will:
Nov. 17, 1951
I, ROSARIO NUGUID, being of sound and disposing mind and memory, having amassed a
certain amount of property, do hereby give, devise, and bequeath all of the property which I
may have when I die to my beloved sister Remedios Nuguid, age 34, residing with me at 38B Iriga, Q.C. In witness whereof, I have signed my name this seventh day of November,
nineteen hundred and fifty-one.
(Sgd.) Illegible
T/ ROSARIO NUGUID"

The statute we are called upon to apply in Article 854 of the Civil Code which, in
part, provides:

ART. 854. The preterition or omission of one, some, or all of the compulsory heirs in the
direct line, whether living at the time of the execution of the will or born after the death of
the testator, shall annul the institution of heir; but the devises and legacies shall be valid
insofar as they are not inofficious. x x x

Except for inconsequential variation in terms, the foregoing is a reproduction of

Article 814 of the Civil Code of Spain of 1889, which is similarly herein copied, thus

Art. 814. The preterition of one or all of the forced heirs in the direct line, whether living at
the time of the execution of the will or born after the death of the testator, shall void the
institution of heir; but the legacies and betterments shall be valid, in so far as they are not
inofficious. x x x
4

A comprehensive understanding of the term preterition employed in the law becomes

a necessity. On this point Manresa comments:
La pretericion consiste en omitar al heredero en el testamento. O no se le nombra siquiera,
o aun nombrandole como padre, hijo, etc., no se le instituya heredero ni se le deshereda
expresamente, ni se le asigna parte alguna de los bienes, resultando privado de un modo
tacito de su derecho a legitima.
Para que exista pretericion, con arreglo al articulo 814, basta que en el testamento omita
el testador a uno cualquiera de aquellos a quienes por su muerte corresponda la herencia
forzosa.
Se necesita, pues, a) Que la omision se refiera a un heredero forzoso. b) Que la omision
sea completa; que el heredero forzoso nada reciba en el testamento."
5

It may now appear trite but nonetheless helpful in giving us a clear perspective of
the problem before us, to have on hand a clear-cut definition of the word annul:
To annul means to abrogate, to make void; x x x In re Morrows Estate, 54 A. 342, 343, 204
Pa. 484."
6

The word annul as used in statute requiring court to annul alimony provisions of
divorce decree upon wifes remarriage means to reduce to nothing; to annihilate; obliterate;
blot out; to make void or of no effect; to nullify; to abolish. N.J.S.A. 2:5038 (now N.J.S.
2A:3435). Madden vs. Madden, 40 A. 2d 611, 614, 136 N.J Eq. 132."
7

ANNUL. To reduce to nothing; annihilate; obliterate; to make void or of no effect; to

nullify; to abolish; to do away with. Ex parteMitchell, 123 W. Va. 283, 14 S.E. 2d. 771, 774."
8

And now, back to the facts and the law. The deceased Rosario Nuguid left no
descendants, legitimate or illegitimate. But she left forced heirs in the direct
ascending lineher parents, now oppositors Felix Nuguid and Paz Salonga Nuguid.
And, the will completely omits both of them: They thus received nothing by the
testament; tacitly, they were deprived of their legitime; neither were they expressly
disinherited. This is a clear case of preterition, Such preterition in the words of
Manresaanulara siempre la institucion de heredero, dando caracter absoluto a este
ordenamiento, referring to the mandate of Article 814, now 854 of the Civil
Code. The one-sentence will here institutes petitioner as the sole, universal heir
nothing more. No specific legacies or bequests are therein provided for. It is in this
posture that we say that the nullity is complete. Perforce, Rosario Nuguid died
intestate. Says Manresa:
9

En cuanto a la institucion de heredero, se anula. Lo que se anula deja de existir, en todo o

en parte? No se aade limitacion alguna, como en el articulo 851, en el que se expresa que
se anulara la institucion de heredero en cuanto perjudique a la legitima del deseheredado.
Debe, pues, entenderse que la anulacion es completa o total, y que este articulo como
especial en el caso que le motiva, rige con preferencia al 817."
10

The same view is expressed by Sanchez Roman:

La consecuencia de la anulacion o nulidad de la institucion de heredero por pretericion de
uno, varios o todos los forzosos en linea recta, es la apertura de la sucesion
intestada, total o parcial.Sera total, cuando el testador que comete la pretericion, hubiese
dispuesto de todos los bienes por titulo universal de herencia en favor de los herederos
instituidos, cuya institucion se anula, porque asi lo exige la generalidad del precepto legal
del art. 814, al determinar, como efecto de la pretericion, el de que anulara la institucion de
heredero/ x x x"
11

Really, as we analyze the word annul employed in the statute, there is no escaping
the conclusion that the universal institution of petitioner to the entire inheritance
results in totally abrogating the will. Because, the nullification of such institution of
universal heirwithout any other testamentary disposition in the willamounts to
a declaration that nothing at all was written. Carefully worded and in clear terms,
Article 854 offers no leeway for inferential interpretation. Giving it an expansive

meaning will tear up by the roots the fabric of the statute. On this point, Sanchez
Roman cites the Memoria annual del Tribunal Supremo, correspondiente a 1908",
which in our opinion expresses the rule of interpretation, viz:
x x x El art. 814, que preceptua en tales casos de pretericion la nulidad de la institucion de
heredero, no consiente interpretacion alguna favorable a la persona instituida en el sentido
antes expuesto, aun cuando parezca, y en algun caso pudiera ser, mas o menos equitativa,
porque una nulidad no significa en Derecho sino la suposicion de que el hecho o el acto no se
ha realizado, debiendo, por lo tanto, procederse sobre tal base o supuesto, y
consiguientemente, en un testamento donde falte la institucion, es obligado llamar a los
herederos f orzosos en todo caso, como habria que llamar a los de otra clase, cuando el
testador no hubiese distribudo todos sus bienes en legados, siendo tanto mas obligada esta
consecuencia legal cuanto que, en materia de testamentos, sabido es, segun tiene declarado
la jurisprudencia, con repeticion, que no basta que sea conocida la voluntad de quien testa
si esta voluntad no aparece en la forma y en las condiciones que la ley ha exigido para que
sea valido y eficaz, por lo que constituiria una interpretacion arbitraria, dentro del derecho
positivo, reputar como legatario a un heredero cuya institucion fuese anulada con pretexto
de que esto se acomodaba mejor a la voluntad del testador, pues aun cuando asi f uese, sera
esto razon para modif icar la ley, pero no autoriza a una interpretacion contraria a sus
terminos y a los principios que informan la testamentifaccion, pues no porque parezca mejor
una cosa en el terreno del Derecho constituyente, hay razon para convereste juicio en regla
de interpretacion, desvirtuando y anulando por este procedimiento lo que el legislador
quiere establecer."
12

3. We should not be led astray by the statement in Article 854 that, annullment
notwithstanding, the devises and legacies shall be valid insofar as they are not
inofficious. Legacies and devises merit consideration only when they are so
expressly given as such in a will. Nothing in Article 854 suggests that
the mere institution of a universal heir in a willvoid because of preteritionwould
give the heir so instituted a share in the inheritance. As to him, the will is
inexistent. There must be, in addition to such institution, a testamentary
disposition granting him bequests or legacies apart and separate from the nullified
institution of heir. Sanchez Roman, speaking of the two component parts of Article
814, now 854, states that preterition annuls the institution of the heir totalmente
por la pretericion; but added (in reference to legacies and bequests), pero
subsistiendo, x x x todas aquellas otras disposiciones que no se refieren a la
nstitucion de heredero x x x". As Manresa puts it, annulment throws open to
13

intestate succession the entire inheritance including la porcion libre (que) no

hubiese dispuesto en virtud de legado, mejora o donacion."
14

As aforesaid, there is no other provision in the will before us except the

institution of petitioner as universal heir. That institution, by itself, is null and void.
And, intestate succession ensues,
4. Petitioners mainstay is that the present is a case of ineffective disinheritance
rather than one of preterition From this, petitioner draws the conclusion that
Article 854 does not apply to the case at bar. This argument fails to appreciate the
distinction between preterition and disinheritance.
15

Preterition consists in the omission in the testators will of the forced heirs or
anyone of them, either because they are not mentioned therein, or, though
mentioned, they are neither instituted as heirs nor are expressly
disinherited." Disinheritance, in turn, is a testamentary disposition depriving any
compulsory heir of his share in the legitime for a cause authorized by law." In
Manresas own words: La privacion expresa de la legitima constituye
ladesheredacion. La privacion tacita de la misma se denomina pretericion." Sanchez
Roman emphasizes the distinction by stating that disinheritance es
siemprevoluntaria; preterition, upon the other hand, is presumed to
be involuntaria". Express as disinheritance should be, the same must be supported
by a legal cause specified in the will itself.
16

17

18

19

20

The will here does not explicitly disinherit the testatrixs parents, the forced
heirs. It simply omits their names altogether. Said will rather than be labeled
ineffective disinheritance is clearly one in which the said forced heirs suffer from
preterition.
On top of this is the fact that the effects flowing from preterition are totally
different from those of disinheritance. Preterition under Article 854 of the Civil
Code, we repeat, shall annul the institution of heir. This annulment is in
toto, unless in the will there are, in addition, testamentary dispositions in the form
of devises or legacies. In ineffective disinheritance under Article 918 of the same
Code, such disinheritance shall also annul the institution of heirs, put only
insofar as it may prejudice the person disinherited, which last phrase was
omitted in the case of preterition. Better stated yet, in disinheritance the nullity
21

is limited to that portion of the estate of which the disinherited heirs have been
illegally deprived. Manresas expressive language, in commenting on the rights of
the preterited heirs in the case of preterition on the one hand and legal
disinheritance on the other, runs thus: Preteridos, adquiren el derecho a
todo; desheredadossolo les corresponde un tercio o dos tercios, el caso."
22

23

5. Petitioner insists that the compulsory heirs ineffectively disinherited are

entitled to receive their legitimes, but that the institution of heir is not
invalidated, although the inheritance of the heir so instituted is reduced to the
extent of said legitimes. ,
24

This is best answered by a reference to the opinion of Mr. Chief Justice Moran in
the Neri case heretofore cited,viz:
But the theory is advanced that the bequest made by universal title in f avor of the
children by the second marriage should be treated as legado and mejora and, accordingly, it
must not be entirely annulled but merely reduced. This theory, if adopted, will result in a
complete abrogation of Articles 814 and 851 of the Civil Code. If every case of institution of
heirs may be made to fall into the concept of legacies and betterments reducing the bequest
accordingly, then the provisions of Articles 814 and 851 regarding total or partial nullity of
the institution, would be absolutely meaningless and will never have any application at all.
And the remaining provisions contained in said article concerning the reduction of
inofficious legacies or betterments would be a surplusage because they would be absorbed
by Article 817. Thus, instead of construing, we would be destroying integral provisions of
the Civil Code.
The destructive effect of the theory thus advanced is due mainly to a failure to
distinguish institution of heirs from legacies and betterments, and a general from a special
provision. With reference to article 814, which is the only provision material to the
disposition of this case, it must be observed that the institution of heirs is therein dealt
with as a thing separate and distinct from legacies or betterments. And they are separate
and distinct not only because they are distinctly and separately treated in said article but
because they are in themselves different. Institution of heirs is a bequest by universal title
of property that is undetermined. Legacy refers to specific property bequeathed by a
particular or special title. x x x But again an institution of heirs cannot be taken as a
legacy."
25

The disputed order, we observe, declares the will in question a complete nullity.
Article 854 of the Civil Code in turn merely nullifies the institution of heir.

Considering, however, that the will before us solely provides for the institution of
petitioner as universal heir, and nothing more, the result is the same. The entire
will is null.
Upon the view we take of this case, the order of November 8, 1963 under review is
hereby affirmed. No costs allowed. So ordered.
Chief
Justice
Concepcion and Justices
J.B.L.
Reyes,Barrera, Dizon, Regala, Makalintal, J.P. Bengzon andZaldivar, concur.
Order affirmed.

No. L-41971. November 29, 1983.

ZONIA ANA T. SOLANO, petitioner, vs. THE COURT OF

BIENVENIDO S. GARCIA, and EMETERIA S. GARCIA, respondents.

APPEALS,

Evidence; Succession; Parent & Child; Supreme Court bound by the factual findings of
the trial court that parties at bar are all illegitimate children of the deceased.At the outset,
we should state that we are bound by the findings of fact of both the Trial Court. and the
Appellate Court, particularly, the finding that the GARCIAS and ZONIA are, in fact,
illegitimate children of the DECEDENT. The oral testimony and the documentary evidence
of record inevitably point to that conclusion, as may be gleaned from the following
background facts: SOLANO, a resident of Tabaco, Albay, married Pilar Riosa. The latter
died. On a world tour he met a French woman, Lilly Gorand, who became his second wife in
1928. The union was short-lived as she left him in 1929. In the early part of 1930, SOLANO
started having amorous relations with Juana Garcia, out of which affair was born
Bienvenido Garcia on March 24, 1931 (Exhibits "A" & "3"); and on November 3, 1935,
Emeteria Garcia was born (Exhibits "B" & "2"). Their birth certificates and baptismal
certificates mention only the mother's name without the father's name. The facts establish,
however, that SOLANO during his lifetime recognized the GARCIAS as his children by acts
of support and provisions for their education.

Pleading & Practice; Succession; Action; Jurisdiction; Waiver;The trial court did not
err in rendering judgment, in an action for recognition, declaring the substitute defendant as
an illegitimate child of the deceased original defendant, ordering the division of the
decedent's estate and declaring the latter's institution of heirship in his probated will null
and void where substituted defendant did not merely act as representative of the deceased,
but asserted rights and defenses in her own capacity.lt is true that the action below was
basically one for recognition. However, upon notice of SOLANO's death, the Trial Court
ordered his substitution by ZONIA, "the only surviving heir x x x as of now" In her
"Appearance of Substitute Defendant Zonia Ana T. Solano x x x Sole and Universal Heir",
ZONIA specifically prayed that she be "allowed to assume her duties as executrix and
administratrix of the probated will and testament of the late Dr. Meliton Solano, under
Special Proceedings No. 842, which is already final and executory, with least interference
from the plaintiffs (GARCIAS) who may be classified for the moment as only pretenders to
be illegitimate children". In other words, ZONIA did not only rely upon SOLANO's Answer
already of record but asserted new rights in her capacity as sole and universal heir,
"executrix and administratrix," and challenged the right of the GARCIAS to recognition.
Thus, she was not defending. the case as a mere representative of the deceased but asserted
rights and defenses in her own personal capacity. So it was that the GARCIAS filed a "Reply
to Appearance of ZONIA x x x and Supplemental Cause of Action x x x" vigorously denying
that ZONIA was SOLANO's sole and universal heir; that ZONIA could not legally be
considered as SOLANO's acknowledged natural child because of a legal impediment; that
the admission to probate of SOLANO's Will was merely conclusive as to its due execution;
that the supposed recognition under a notarial instrument of ZONIA as an acknowledged
natural child was fraudulent and a product of misrepresentation; that ZONIA's recognition
in the Will as an acknowledged natural child is subject to nullification and that at most
ZONIA is, like them, an adulterous child of SOLANO with Trinidad Tuagnon.
Same; Same; Same; Same; Evidence; An action for recognition may ipso jure be
converted into a contest as to the status of the alleged daughter of the deceased defendant
who asked to be substituted on the latter's demise where the parties submitted pleadings and
evidence bearing also on the substituted defendant's status as heir.During the trial, the
GARCIAS presented evidence to prove their allegations not only in their main complaint
but also in their "Reply to Appearance and Supplemental Cause of Action". ZONIA
presented no objection to the presentation by the GARCIAS of their oral and documentary
evidence and even cross-examined their witnesses. ZONIA, for her part, presented her own
testimonial and documentary evidence, denied the relationship of the GARCIAS' to
SOLANO and presented the notarial recognition in her favor as an acknowledged natural
child by SOLANO and Trinidad Tuagnon (Exhibit "Q"). Thus, as raised by the parties in
their own pleadings and pursuant to their respective evidence during the trial, the
litigation was converted into a contest between the GARCIAS and ZONIA precisely as to

their correct status as heirs and their respective rights as such. No error was committed by
either the Trial Court or the Appellate Court, therefore, in resolving the issue of ZONIA's
status.
Same; Same; Same; Same; A trial court may, under the special circumstances of a case,
declare the institution of heir void and distribute the decedent's estate, in an action for
recognition.Normally, this would be the general rule. However, a peculiar situation is
thrust upon us here. It should be recalled that SOLANO himself instituted the petition for
probate of the Will during his lifetime. That proceeding was not one to settle the estate of a
deceased person that would be deemed terminated only upon the final distribution of the
residue of the hereditary estate. With the Will allowed to probate, the case would have
terminated except that it appears that the parties, after SOLANO's death, continued to file
pleadings therein. Secondly, upon motion of the GARCIAS, and over the objection of ZONIA,
the Trial Court ordered the impleading of the estate of SOLANO and proceeded on that
basis. In effect, therefore, the two cases were consolidated. The records further disclose that
the action for recognition (Civil Case No, 3956) and Spec. Procs. No. 842 were pending
before the same Branch of the Court and before the same Presiding Judge. Thirdly, it is
settled that the allowance of a Will is conclusive only as to its due execution. A probate
decree is not concerned with the intrinsic validity or legality of the provisions of the Will.
Succession; Preterition of compulsory heir makes institution of heirship void, but not the
legacies made in the WillAs provided in the foregoing provision, the disposition in the Will
giving the usufruct in favor of Trinidad Tuagnon over the five parcels of land in Bantayan,
Tabaco, Albay, is a legacy, recognized in Article 563 of the Civil Code, and should be
respected in so far as it is not inofficious.
Same; Same; The omission of a compulsory heir in the Will and resulting invalidity of
the institution of an heir therein would not necessarily result in an intestacy, but only to the
extent that the legitime of omitted compulsory heirs is impaired.So also did the Trial Court
have jurisdiction in resolving the issue of the hereditary shares of the GARCIAS and
ZONIA. However, contrary to the conclusions of the Courts below, holding that the entire
Will is void and intestacy ensues, the preterition of the GARCIAS should annul the
institution of ZONIA as heir only insofar as the legitime of the omitted heirs is impaired.
The Will, therefore, is valid subject to that limitation. It is plain that the intention of the
testator was to favor ZONIA with certain portions of his property, which, under the law, he
had a right to dispose of by Will, so that the disposition in her favor should be upheld as to
the one-half () portion of the property that the testator could freely dispose of. Since the
legitime of illegitimate children consists of one-half (1/2) of the hereditary estate, the
GARCIAS and ZONIA each have a right to participation therein in the proportion of onethird (1/3) each. ZONIA's hereditary share will, therefore, be 1/2 + (1/3 of 1/2) or 4/6 of the

estate, while the GARCIAS will respectively be entitled to 1/3 of 1/2 or 1/6 of the value of
the estate.
Jurisdiction; Succession; Voluntary submission to jurisdiction of court bars right to
contest same after receiving an adverse decision.Lastly, it should be pointed out that the
jurisdiction of the Trial Court and the Appellate Court was never questioned before either
Court. ZONIA herself had gone, without objection, to trial on the issues raised and as
defined by the Trial Court. Neither had ZONIA assigned lack of jurisdiction of the Trial
Court as an error before the Appellate Court. She should now be held estopped to repudiate
that jurisdiction to which she had voluntarily submitted, after she had received an
unfavorable judgment.
Teehankee, J., concurring:
Pleadings and Practice; The two cases, the action for recognition and the testate
proceedings, can be deemed to have been tried jointly as they were pending before the same
judge.The record shows that the probate proceeding (Sp. Proc. No. 842) was not one for
settlement of estate of deceased but one instituted by the testator himself, Dr. Meliton
Solano, for the allowance of the will during his lifetime under Article 838 of the Civil Code.
Such allowance was granted and this terminated the proceeding, although as noted in the
Court's opinion, the parties continued to file some pleadings therein after Dr. Solano's
death. But the issues between the parties as to their status and hereditary shares in view of
the probated will naming petitioner as sole heir were expressly delineated, tried and
determined in the action for recognition (Civil Case No. 3956) filed by respondents Garcias
against their father Dr. Solano who was substituted by petitioner as defendant (and sole
heir of the estate under the probated will) after his death. In effect, therefore, the two cases
(assuming that the probate proceeding could be deemed as having continued
notwithstanding its termination with the allowance in vitam of Dr. Solano's will) which
were pending before the same judge and the same branch of the trial court could be
correctly said to have been consolidated. Finally, petitioner is now estopped, after getting an
adverse verdict, from repudiating belatedly the jurisdiction of the trial and appellate courts
to which she had submitted without question her cause.

PETITION for certiorari to review the decision of the Court of Appeals.

The facts are stated in the opinion of the Court.
Benjamin H. Aquino for petitioner
Alfredo Kallos for respondents.

MELENCIO-HERRERA, J.:
A Petition for Review on Certiorari of the Decision of the then Court of Appeals
affirming the judgment rendered by the former Court of First Instance of Albay,
Branch II, in Civil Case No. 3956, an action for Recognition.
On July 7, 1969, Bienvenido Garcia and Emeteria Garcia (GARCIAS), claiming to
be illegitimate children of Dr. Meliton SOLANO, filed an action for recognition
against him. In his Answer, SOLANO denied paternity. On February 3, 1970,
during the pendency of the suit, SOLANO died. Petitioner ZONIA Ana Solano was
ordered substituted for the DECEDENT as the only surviving heir mentioned in his
Last Will and Testament probated on March 10, 1969, or prior to his death, in
Special Proceedings No. 842 of the same Court. ZONIA entered her formal
appearance as a "substitute defendant" on March 4, 1970 claiming additionally that
she was the sole heir of her father, SOLANO, and asking that she be allowed to
assume her duties as executrix of the probated Will with the least interference from
the GARCIAS who were "mere pretenders to be illegitimate children of SOLANO".
On April 6, 1970, the GARCIAS filed their "Reply to ZONIA's Appearance and
Supplemental Cause of Action" impugning the recognition of ZONIA as an
acknowledged natural child with the prayer that she be declared instead, like them,
as an adulterous child of the DECEDENT. ZONIA did not file any responsive
pleading and the case proceeded to trial. The GARCIAS further moved for the
impleading of the SOLANO estate in addition to ZONIA, which was opposed by the
latter, but which the Trial Court granted in its Order dated April 15, 1970.
1

In the hearing of May 13, 1970, the Trial Court specified the legal issues to be
treated in the parties' respective Memoranda as: 1) the question of recognition of the
GARCIAS; 2) the correct status of ZONIA, and 3) the hereditary share of each of
them in view of the probated Will.
2

On July 14, 1970, the Trial Court, presided by Judge Ezequiel S. Grageda,
rendered judgment the dispositive portion of which decrees:
"WHEREFORE, judgment is hereby rendered declaring the plaintiffs Bienvenido S. Garcia
and Emeteria S. Garcia and the defendant Sonia Ana Tuagnon as the illegitimate children
of the late Dr. Meliton Solano under the class of ADULTEROUS CHILDREN, with all the
rights granted them by law. The institution of Sonia Ana Solano as sole and universal heir

of the said deceased in the will is hereby declared null and void and the three (3) children
shall share equally the estate or one-third (1/3) each, without prejudice to the legacy given
to Trinidad Tuagnon and the right of any creditors of the estate. No pronouncement as to
costs."

Appealed to the Court of Appeals by ZONIA, said Court affirmed the judgment in
toto (CA-G.R. No. 49018).
ZONIA seeks a reversal of that affirmance in this petition, which was given due
course.
At the outset, we should state that we are bound by the findings of fact of both
the Trial Court and the Appellate Court, particularly, the finding that the
GARCIAS and ZONIA are, in fact, illegitimate children of the DECEDENT. The oral
testimony and the documentary evidence of record inevitably point to that
conclusion, as may be gleaned from the following background facts: SOLANO, a
resident of Tabaco, Albay, married Pilar Riosa. The latter died. On a world tour he
met a French woman, Lilly Gorand, who became his second wife in 1928. The union
was short-lived as she left him in 1929. In the early part of 1930, SOLANO started
having amorous relations with Juana Garcia, out of which affair was born
Bienvenido Garcia on March 24, 1931 (Exhibits "A'' & "3"}; and on November 3,
1935, Emeteria Garcia was born (Exhibits "B" & "2"). Their birth certificates and
baptismal certificates mention only the mother's name without the father's name.
The facts establish, however, that SOLANO during his lifetime recognized the
GARCIAS as his children by acts of support and provisions f or their education.
In 1935, SOLANO started living with Trinidad Tuagnon. Three children were
born out of this relation but only petitioner ZONIA Ana Tuagnon, born on July 26,
1941, is living. In her Birth Certificate, her status was listed as "illegitimate"; her
mother as Trinidad Tuagnon; her father as "P.N.C." (Exhibit "V"), or "padre no
conocido".
During the Japanese occupation, SOLANO obtained a divorce from Lilly Gorand
on November 29, 1943 (Exhibits "R-1" and "S-1"). On December 22, 1943, SOLANO
and Trinidad Tuagnon executed an "Escritura de Reconocimiento de Una Hija
Natural" (Exhibit "Q"; "7"), acknowledging ZONIA as a "natural child" and giving
her the right to use the name ZONIA Ana Solano y Tuagnon. The document was
registered with the Local Civil Registrar on the same data

On January 18, 1969, SOLANO executed his "Ultima Voluntad y Testamento"

(Exhibit "11"), instituting ZONIA as his universal heir to all his personal and real
properties in Camalig, Tabaco and Malinao, all in the province of Albay, except for
five parcels of land in Bantayan, Tabaco, Albay, which were given to Trinidad
Tuagnon in usufruct. Upon SOLANO's petition (Exhibit '"10"), the Will was duly
probated on March 10, 1969 in Special Proceedings No. 842 of the Court of First
Instance of Albay, Branch II, in a Decision also rendered by Judge Ezequiel S.
Grageda (Exhibit "12"),
As above stated, these facts are not in question.
'Petitioner maintains, however, that:
I.
'The Court of Appeals, as well as the trial Court, acted without jurisdiction or in excess of
jurisdiction in declaring substitute defendant Zonia Ana Solano, now petitioner, an
illegitimate child of the late Dr. Meliton Solano in an action where private respondents, as
plaintiffs in the Court below, sought recognition as natural children of Dr, Meliton Solano.
II.
'The Court of Appeals, as well as the trial Court, acted without jurisdiction or in excess
of jurisdiction in ordering the division of the estate of Dr. Meliton Solano between the
petitioner and private respondents, when said estate is under the jurisdiction and control of
the probate Court in Special Proceedings No. 842.
III.
"The Court of Appeals, as well as the trial Court, acted without jurisdiction or in excess
of jurisdiction in declaring null and void the institution of heir in the last will and
testament of Dr. Meliton Solano, which was duly probated in special proceedings No. 842 of
the Court of First Instance of Albay, and in concluding that total intestacy resulted
therefrom. "
3

Directly challenged is the jurisdiction of the lower Court, in an action for

recognition: 1) to declare ZONIA as an illegitimate child of SOLANO; 2) to order the
division of the estate in the same action despite the pendency of Special Proceedings
No. 842; and 3) to declare null and void the institution of heir in the Last Will and

Testament of SOLANO, which was duly probated in the same Special Proceedings
No. 842, and concluding that total intestacy resulted.
It is true that the action below was basically one for recognition. However, upon
notice of SOLANO's death, the Trial Court ordered his substitution by ZONIA, "the
only surviving heir x x x as of now" In her "Appearance of Substitute Defendant
Zonia Ana T, Solano x x x Sole and Universal Heir", ZONIA specifically prayed that
she be "allowed to assume her duties as executrix and administratrix of the
probated will and testament of the late Dr. Meliton Solano, under Special
Proceedings No. 842, which is already final and executory, with least interference
from the plaintiffs (GARCIAS) who may be classified for the moment as only
pretenders to be illegitimate children". In other words, ZONIA did not only rely
upon SOLANO's Answer already of record but asserted new rights in her capacity
as sole and universal heir, "executrix and administratrix,' and challenged the right
of the GARCIAS to recognition. Thus, she was not defending the case as a mere
representative of the deceased but asserted rights and defenses in her own personal
capacity. So it was that the GARCIAS filed a "Reply to Appearance of ZONIA x x x
and Supplemental Cause of Action x x x" vigorously denying that ZONIA was
SOLANO's sole and universal heir; that ZONIA could not legally be considered as
SOLANO's acknowledged natural child because of a legal impediment; that the
admission to probate of SOLANO's Will was merely conclusive as to its due
execution; that the supposed recognition under a notarial instrument of ZONIA as
an acknowledged natural child was fraudulent and a product of misrepresentation;
that ZONIA's recognition in the Will as an acknowledged natural child is subject to
nullification and that at most ZONIA is, like them, an adulterous child of SOLANO
with Trinidad Tuagnon.
4

During the trial, the GARCIAS presented evidence to prove their allegations not
only in their main complaint but also in their "Reply to Appearance and
Supplemental Cause of Action". ZONIA presented no objection to the presentation
by the GARCIAS of their oral and documentary evidence and even cross-examined
their witnesses. ZONIA, for her part, presented her own testimonial and
documentary evidence, denied the relationship of the GARCIAS' to SOLANO and
presented the notarial recognition in her favor as an acknowledged natural child by
SOLANO and Trinidad Tuagnon (Exhibit "Q"). Thus, as raised by the parties in
their own pleadings and pursuant to their respective evidence during the trial, the
litigation was converted into a contest between the GARCIAS and ZONIA precisely

as to their correct status as heirs and their respective rights as such. No error was
committed by either the Trial Court or the Appellate Court, therefore, in resolving
the issue of ZONIA 's status.
ZONIA additionally assails the jurisdiction of the Trial Court in declaring null
and void the institution of heir in SOLANO's will; in concluding that total intestacy
resulted therefrom; and distributing the shares of the parties in SOLANO's estate
when said estate was under the jurisdiction and control of the Probate Court in
Special Proceedings No. 842.
Normally, this would be the general rule. However, a peculiar situation is thrust
upon us here. It should be recalled that SOLANO himself instituted the petition for
probate of the Will during his lifetime. That proceeding was not one to settle the
estate of a deceased person that would be deemed terminated only upon the final
distribution of the residue of the hereditary estate. With the Will allowed to
probate, the case would have terminated except that it appears that the parties,
after SOLANO's death, continued to file pleadings therein. Secondly, upon motion of
the GARCIAS, and over the objection of ZONIA, the Trial Court ordered the
impleading of the estate of SOLANO and proceeded on that basis. In effect, theref
ore, the two cases were consolidated. The records further disclose that the action for
recognition (Civil Case No. 3956) and Spec. Procs. No. 842 were pending before the
same Branch of the Court and before the same Presiding Judge. Thirdly, it is settled
that the allowance of a Will is conclusive only as to its due execution. A probate
decree is not concerned with the intrinsic validity or legality of the provisions of the
Will.
5

Thus, the Trial Court and the Appellate Court had jurisdiction to conclude that,
upon the facts, the GARCIAS and ZONIA were in the same category as illegitimate
children; that ZONIA's acknowledgment as a "natural child" in a notarial document
executed by SOLANO and Trinidad Tuagnon on December 22, 1943 was erroneous
because at the time of her birth in 1941, SOLANO was still married to Lilly Gorand,
his divorce having been obtained only in 1943, and, therefore, did not have the legal
capacity to contract marriage at the time of ZONIA's conception, that being
compulsory heirs, the GARCIAS were, in fact, preterited from SOLANO's Last' Will
and Testament; and that as a result of said preterition, the institution of ZONIA as
sole heir by SOLANO is null and void pursuant to Article 854 of the Civil Code
7

'The preterition or omission of one, some, or all of the compulsory heirs in the direct line,
whether living at the time of the execution of the will or born after the death of the testator,
shall annul the institution of heir; but the devises and legacies shall be valid insofar as they
are not inofficious.
x x x"

As provided in the foregoing provision, the disposition in the Will giving the
usufruct in favor of Trinidad Tuagnon over the five parcels of land in Bantayan,
Tabaco, Albay, is a legacy, recognized in Article 563 of the Civil Code, and should be
respected in so far as it is not inofficious.
9

10

So also did the Trial Court have jurisdiction in resolving the issue of the
hereditary shares of the GARCIAS and ZONIA. However, contrary to the
conclusions of the Courts below, holding that the entire Will is void and intestacy
ensues, the preterition of the GARCIAS should annul the institution of ZONIA as
heir only insofar as the legitime of the omitted heirs is impaired. The Will,
therefore, is valid subject to that limitation. It is a plain that the intention of the
testator was to favor ZONIA with certain portions of his property, which, under the
law, he had a right to dispose of by Will, so that the disposition in her favor should
be upheld as to the one-half (1/2) portion of the property that the testator could
freely dispose of. Since the legitime of illegitimate children consists of onehalf (1/2)
of the hereditary estate, the GARCIAS and ZONIA each have a right to
participation therein in the proportion of one-third (1/3) each. ZONIA's hereditary
share will, therefore, be 1/2 + (1/3 of 1/2) or 4/6 of the estate, while the GARCIAS
will respectively be entitled to 1/3 of 1/2 or 1/6 of the value of the estate.
11

12

13

As heretofore stated, the usufruct in, favor of Trinidad Tuagnon over the
properties indicated in the Will is valid and should be respected.
The case of Nuguid vs. Nuguid, et al., reiterating the ruling in Neri, et al. vs.
Akutin, et al., which held that where the institution of a universal heir is null and
void due to preterition, the Will is a complete nullity and intestate succession
ensues, is not applicable herein because in the Nuguid case, only a one-sentence
Will was involved with no other provision except the institution of the sole and
universal heir; there was no specification of individual property; there were no
specific legacies or bequests. It was upon that factual setting that this Court
declared:
14

15

"The disputed order, we observe, declares the will in question 'a complete nullity. Article
854 of the Civil Code in turn merely nullifies 'the institution of heir'. Considering, however,
that the will before us solely provides for the institution of petitioner as universal heir, and
nothing more, the result is the same. The .entire will is null." (at p. 459)

In contrast, in the case at bar, there is a specific bequest or legacy so that Article
854 of the Civil Code, supra, applies merely annulling the "institution of heir".
Lastly, it should be pointed out that the jurisdiction of the Trial Court and the
Appellate Court was never questioned before either Court. ZONIA herself had gone,
without objection, to trial on the issues raised and as defined by the Trial Court.
Neither had ZONIA assigned lack of jurisdiction of the Trial Court as an error
before the Appellate Court. She should now be held estopped to repudiate that
jurisdiction to which she had voluntarily submitted, after she had received an
unfavorable judgment. The leading case of Tijam vs. Sibonghanoy, on this point,
declared:
16

"A party cannot invoke the jurisdiction of a court to secure affirmative relief against his opponent and after
failing to obtain such relief, repudiate or question the same jurisdiction. The question whether the court has
jurisdiction either of the subject matter of the action or of the parties is not because the judgment or order of the
court is valid and conclusive as an adjudication but for the reason that such practice cannot be tolerated
obviously for reasons of public policy. After voluntarily submitting a cause and encountering an adverse decision
on the merits, it is too late for the loser to question the jurisdiction or power of the court."

WHEREFORE, the judgment under review is hereby modified in that the hereditary share in the
estate of the decedent of petitioner Zonia Ana T. Solano is hereby declared to be (1/2 + (1/3 of 1/2) or
4/6 of said estate, while that of private respondents, Bienvenido S. Garcia and Emeteria S. Garcia,
shall each be (1/3 of 1/2) or (1/6) of the estate. The usufruct in favor of Trinidad Tuagnon shall be
respected. The judgment is affirmed in all other respects.
No costs.
SO ORDERED.
Plana, Relova and Gutierrez, Jr., JJ., concur.
Teehankee (Chairman), J., files a brief concurrence.
TEEHANKEE, J., concurring:

The record shows that the probate proceeding (Sp. Proc. No. 842) was not one for settlement of estate
of a deceased but one instituted by the testator himself, Dr. Meliton Solano, for the allowance of the
will during his lifetime under Article 838 of the Civil Code. Such allowance was granted and this
terminated the proceeding, although as noted in the Court's opinion, the parties continued to file
some pleadings therein after Dr. Solano's death. But the issues between the parties as to their status
and hereditary shares in view of the probated will naming petitioner as sole heir were expressly
delineated, tried and determined in the action for recognition (Civil Case No. 3956) filed by
respondents Garcias against their father Dr. Solano who was substituted by petitioner as defendant
(and sole heir of the estate under the probated will) after his death. In effect, therefore, the two cases
(assuming that the probate proceeding could be deemed as having continued notwithstanding its
termination with the allowance in vitam of Dr. Solano's will) which were pending before the same
judge and the same branch of the trial court could be correctly said to have been consolidated.
Finally, petitioner is now estopped, after getting an adverse verdict, from repudiating belatedly the
jurisdiction of the trial and appellate courts to which she had submitted without question her cause.
Judgment affirmed with modification.
Notes.There is no vulgar substitution where there is no provision for either (1) predecease of
the testator by the designated heir; or (2) refusal; or (3) incapacity of the latter to accept the
inheritance. (Philippine Commercial and Industrial Bank vs. Escolin, 56 SCRA 266.)
A legacy made in a will cannot be distributed without a prior liquidation of the decedent's estate
and payment of debts and taxes. (Castro, Jr. vs. Court of Appeals, 122 SCRA 885.)
The surviving spouse being a compulsory heir of the late husband is entitled to share in the
administration of the estate prior to probate of the will. (Vda. de Dayrit vs. Ramolete,117 SCRA 608.)
The fact that the issue in the ejectment case is solely a legal onewhether a person can continue
a lease by inheritancedoes not make it one incapable of pecuniary estimation and bring the case
under CFI jurisdiction.(Mabalot vs. Madela, 121 SCRA 347.)
o0o

No. L-72706. October 27,1987.

CONSTANTINO C. ACAIN, petitioner, vs. HON. INTERMEDIATE APPELLATE

COURT (Third Special Cases Division), VIRGINIA A. FERNANDEZ and ROSA
DIONGSON, respondents.

Civil Law; Succession; Preterition, meaning of; Article 854 of the Civil Code not
applicable to the surviving spouse; Adoption makes the adopted the legal heir of the adopter.
Preterition consists in the omission in the testators will of the forced heirs or anyone of
them either because they are not mentioned therein, or, though mentioned, they are neither
instituted as heirs nor are expressly disinherited (Nuguid v. Nuguid, 17 SCRA 450 [1966];
Maninang v. Court of Appeals, 114 SCRA [1982]. Insofar as the widow is concerned, Article
854 of the Civil Code may not apply as she does not ascend or descend from the testator,
although she is a compulsory heir. Stated otherwise, even if the surviving spouse is a
compulsory heir, there is no preterition even if she is omitted from the inheritance, for she
is not in the direct line. (Art. 854, Civil Code) However, the same thing cannot be said of the
other respondent Virginia A. Fernandez, whose legal adoption by the testator has not been
questioned by petitioner (Memorandum for the Petitioner, pp. 8-9). Under Article 39 of P.D.
No. 603, known as the Child and Youth Welfare Code, adoption gives to the adopted person
the same rights and duties as if he were a legitimate child of the adopter and makes the
adopted person a legal heir of the adopter. It cannot be denied that she was totally omitted
and preterited in the will of the testator and that both adopted child and the widow were
deprived of at least their legitime. Neither can it be denied that they were not expressly
disinherited. Hence, this is a clear case of preterition of the legally adopted child.
Same; Same; Same; Preterition annuls the institution of an heir and creates intestate
succession but legacies and devises are valid and respected insofar as they are not
inofficious.Preterition annuls the institution of an heir and annulment throws open to
intestate succession the entire inheritance including la portion libre (que) no hubiese
dispuesto en virtual de legado, mejora o donation (Manresa, as cited in Nuguid v.
Nuguid, supra; Maninang v. Court of Appeals, 114 SCRA [1982]). The only provisions which
do not result in intestacy are the legacies and devises made in the will for they should stand
valid and respected, except in so far as the legitimes are concerned.
Same; Same; Same; Same; Institution of petitioner and his brothers and sisters to the
entire inheritance totally abrogates the will.The universal institution of petitioner together
with his brothers and sisters to the entire inheritance of the testator results in totally
abrogating the will because the nullification of such institution of universal heirswithout
any other testamentary disposition in the willamounts to a declaration that nothing at all
was written. Carefully worded and in clear terms, Article 854 of the Civil Code offers no
leeway for inferential interpretation (Nuguid v. Nuguid), supra. No legacies nor devises
having been provided in the will the whole property of the deceased has been left by
universal title to petitioner and his brothers and sisters. The effect of annulling the
institution of heirs will be, necessarily, the opening of a total intestacy (Neri v. Akutin, 74
Phil. 185 [1943]) except that proper legacies and devises must, as already stated above, be
respected.

Same; Same; Probate of a will; Petitioner has no legal standing to petition for the
probate of the will of the deceased, hence Special Proceeding No. 591-A-CEB must be
dismissed.In order that a person may be allowed to intervene in a probate proceeding he
must have an interest in the estate, or in the will, or in the property to be affected by it
either as executor or as a claimant of the estate and an interested party is one who would
be benefited by the estate such as an heir or one who has a claim against the estate like a
creditor (Sumilang v. Ramagosa, 21 SCRA 1369/1967). Petitioner is not the appointed
executor, neither a devisee or a legatee there being no mention in the testamentary
disposition of any gift of an individual item of personal or real property he is called upon to
receive (Article 782, Civil Code). At the outset, he appears to have an interest in the will as
an heir, defined under Article 782 of the Civil Code as a person called to the succession
either by the provision of a will or by operation of law. However, intestacy having resulted
from the preterition of respondent adopted child and the universal institution of heirs,
petitioner is in effect not an heir of the testator. He has no legal standing to petition for the
probate of the will left by the deceased and Special Proceedings No. 591-A-CEB must be
dismissed.
Same; Same; Same; Rule that probate Courts authority is limited only to the extrinsic
validity of the will, not inflexible and absolute; Court may pass upon the intrinsic validity of
the will under exceptional circumstances.Special Proceedings No. 591-CEB is for the
probate of a will. As stated by respondent Court, the general rule is that the probate courts
authority is limited only to the extrinsic validity of the will, the due execution thereof, the
testators testamentary capacity and the compliance with the requisites or solemnities
prescribed by law. The intrinsic validity of the will normally come only after the Court has
declared that the will has been duly authenticated. Said court at this stage of the
proceedings is not called upon to rule on the intrinsic validity or efficacy of the provisions of
the will (Nuguid v. Nuguid, 17 SCRA 449 [1966]; Sumilang v. Ramagosa, supra; Maninang
v. Court of Appeals, 114 SCRA 478 [1982]; Cayetano v. Leonidas, 129 SCRA 522 [1984]);
and Nepomuceno v. Court of Appeals, 139 SCRA 206 [1985]). The rule, however, is not
inflexible and absolute. Under exceptional circumstances, the probate court is not powerless
to do what the situation constrains it to do and pass upon certain provisions of the will
(Nepomuceno v. Court of Appeals, supra). In Nuguid v. Nuguid the oppositors to the probate
moved to dismiss on the ground of absolute preterition. The probate court acting on the
motion held that the will in question was a complete nullity and dismissed the petition
without costs. On appeal the Supreme Court upheld the decision of the probate court,
induced by practical considerations.
Same; Same; Same; Same; Trial Court could have denied outright the probate of the
will or have passed upon its intrinsic validity where on its face it appears to be intrinsically
void.For private respondents to have tolerated the probate of the will and allowed the

case to progress when on its face the will appears to be intrinsically void as petitioner and
his brothers and sisters were instituted as universal heirs coupled with the obvious fact
that one of the private respondents had been preterited would have been an exercise in
futility. It would have meant a waste of time, effort, expense, plus added futility. The trial
court could have denied its probate outright or could have passed upon the intrinsic validity
of the testamentary provisions before the extrinsic validity of the will was resolved
(Cayetano v. Leonidas,supra; Nuguid v. Nuguid, supra). The remedies of certiorari and
prohibition were properly availed of by private respondents.
Certiorari; Remedy of Certiorari cannot be a substitute for appeal, exception.As a
general rule certiorari cannot be a substitute for appeal, except when the questioned order
is an oppressive exercise of judicial authority (People v. Villanueva, 110 SCRA 465 [1981];
Vda. de Caldito v. Segundo, 117 SCRA 573 [1982]; Co Chuan Seng v. Court of Appeals, 128
SCRA 308 [1984]; and Bautista v. Sarmiento, 138 SCRA 587 [1985]). It is axiomatic that
the remedies of certiorari and prohibition are not available where the petitioner has the
remedy of appeal or some other plain, speedy and adequate remedy in the course of law
(D.D. Comendador Construction Corporation v. Sayo (118 SCRA 590 [1982]). They are,
however, proper remedies to correct a grave abuse of discretion of the trial court in not
dismissing a case where the dismissal is founded on valid grounds (Vda. de Bacang v. Court
of Appeals, 125 SCRA 137 [1983]).
Same; Same; Certiorari may be entertained where appeal will not afford a speedy and
adequate relief.Thus, this Court ruled that where the grounds for dismissal are
indubitable, the defendants had the right to resort to the more speedy, and adequate
remedies of certiorari and prohibition to correct a grave abuse of discretion, amounting to
lack of jurisdiction, committed by the trial court in not dismissing the case, (Vda. de Bacang
v. Court of Appeals,supra) and even assuming the existence of the remedy of appeal, the
Court harkens to the rule that in the broader interests of justice, a petition for certiorari
may be entertained, particularly where appeal would not afford speedy and adequate relief.

PETITION for certiorari to review the decision of the Court of Appeals. Melo, J.
The facts are stated in the opinion of the Court.
PARAS, J.:
This is a petition for review on certiorari of the decision of respondent Court of
Appeals in AC-G.R. SP No. 05744promulgated on August 30, 1985 (Rollo, p. 108)
ordering the dismissal of the petition in Special Proceedings No. 591-A-CEB and its
**

Resolution issued on October 23, 1985 (Rollo, p. 72) denying respondents

(petitioners herein) motion for reconsideration.
The dispositive portion of the questioned decision reads as follows:
WHEREFORE, the petition is hereby granted and respondent Regional Trial Court of the
Seventh Judicial Region, Branch XIII (Cebu City), is hereby ordered to dismiss the petition
in Special Proceedings No. 591-A-CEB. No special pronouncement is made as to costs.

The antecedents of the case, based on the summary of the Intermediate Appellate
Court, now Court of Appeals, (Rollo, pp. 108-109) are as follows:
On May 29, 1984 petitioner Constantino Acain filed in the Regional Trial Court
of Cebu City Branch XIII, a petition for the probate of the will of the late Nemesio
Acain and for the issuance to the same petitioner of letters testamentary, docketed
as Special Proceedings No. 591-A-CEB (Rollo, p. 29), on the premise that Nemesio
Acain died leaving a will in which petitioner and his brothers Antonio, Flores and
Jose and his sisters Anita, Concepcion, Quirina and Laura were instituted as heirs.
The will allegedly executed by Nemesio Acain on February 17, 1960 was written in
Bisaya (Rollo, p. 27) with a translation in English (Rollo, p. 31) submitted by
petitioner without objection raised by private respondents. The will contained
provisions on burial rites, payment of debts, and the appointment of a certain Atty.
Ignacio G. Villagonzalo as the executor of the testament. On the disposition of the
testators property, the will provided:
THIRD: All my shares that I may receive from our properties, house, lands and money
which I earned jointly with my wife Rosa Diongson shall all be given by me to my brother
SEGUNDO ACAIN, Filipino, widower, of legal age and presently residing at 357-C
Sanciangko Street, Cebu City. In case my brother Segundo Acain predeceases me, all the
money properties, lands, houses there in Bantayan and here in Cebu City which constitute
my share shall be given by me to his children, namely: Anita, Constantino, Concepcion,
Quirina, Laura, Flores, Antonio and Jose, all surnamed Acain.

Obviously, Segundo pre-deceased Nemesio. Thus, it is the children of Segundo who

are claiming to be heirs, with Constantino as the petitioner in Special Proceedings
No. 591-A-CEB.
After the petition was set for hearing in the lower court on June 25, 1984 the
oppositors (respondents herein Virginia A. Fernandez, a legally adopted daughter of

the deceased and the latters widow Rosa Diongson Vda. de Acain) filed a motion to
dismiss on the following grounds: (1) the petitioner has no legal capacity to institute
these proceedings; (2) he is merely a universal heir and (3) the widow and the
adopted daughter have been preterited. (Rollo, p. 158). Said motion was denied by
the trial judge.
After the denial of their subsequent motion for reconsideration in the lower court,
respondents filed with the Supreme Court a petition for certiorari and prohibition
with preliminary injunction which was subsequently referred to the Intermediate
Appellate Court by Resolution of the Court dated March 11, 1985 (Memorandum for
Petitioner, p. 3; Rollo, p. 159).
Respondent Intermediate Appellate Court granted private respondents petition
and ordered the trial court to dismiss the petition for the probate of the will of
Nemesio Acain in Special Proceedings No. 591-A-CEB.
His motion for reconsideration having been denied, petitioner filed this present
petition for the review of respondent Courts decision on December 18, 1985 (Rollo,
p. 6). Respondents Comment was filed on June 6, 1986 (Rollo, p. 146).
On August 11, 1986 the Court resolved to give due course to the petition (Rollo, p.
153). Respondents Memorandum was filed on September 22, 1986 (Rollo, p. 157);
the Memorandum for petitioner was filed on September 29, 1986 (Rollo, p. 177).
Petitioner raises the following issues (Memorandum for Petitioner, p. 4):
1. (A)The petition filed in AC-G.R. No. 05744 for certiorari and prohibition with
preliminary injunction is not the proper remedy under the premises;
2. (B)The authority of the probate courts is limited only to inquiring into
the extrinsic validity of the will sought to be probated and it cannot pass upon the
intrinsic validity thereof before it is admitted to probate;
3. (C)The will of Nemesio Acain is valid and must therefore, be admitted to probate.
The preterition mentioned in Article 854 of the New Civil Code refers to preterition
of compulsory heirs in the direct line, and does not apply to private respondents
who are not compulsory heirs in the direct line; their omission shall not annul the
institution of heirs;

4. (D)DICAT TESTATOR ET ERIT LEX. What the testator says will be the law;
5. (E)There may be nothing in Article 854 of the New Civil Code, that suggests that
mere institution of a universal heir in the will would give the heir so instituted a
share in the inheritance but there is a definite distinct intention of the testator in
the case at bar, explicitly expressed in his will. This is what matters and should be
inviolable.

1. (F)As an instituted heir, petitioner has the legal interest and standing to file the
petition in Sp. Proc. No. 591-A-CEB for probate of the will of Nemesio Acain; and

2. (G)Article 854 of the New Civil Code is a bill of attainder. It is therefore

unconstitutional and ineffectual.

The pivotal issue in this case is whether or not private respondents have been
preterited. Article 854 of the Civil Code provides:
Art. 854. The preterition or omission of one, some, or all of the compulsory heirs in the
direct line, whether living at the time of the execution of the will or born after the death of
the testator, shall annul the institution of heir; but the devisees and legacies shall be valid
insofar as they are not inofficious.
If the omitted compulsory heirs should die before the testator, the institution shall be
effectual, without prejudice to the right of representation.

Preterition consists in the omission in the testators will of the forced heirs or
anyone of them either because they are not mentioned therein, or, though
mentioned, they are neither instituted as heirs nor are expressly disinherited
(Nuguid v. Nuguid, 17 SCRA 450 [1966]; Maninang v. Court of Appeals, 114 SCRA
478 [1982]). Insofar as the widow is concerned, Article 854 of the Civil Code may not
apply as she does not ascend or descend from the testator, although she is a
compulsory heir. Stated otherwise, even if the surviving spouse is a compulsory heir,
there is no preterition even if she is omitted from the inheritance, for she is not in
the direct line. (Art. 854, Civil Code) However, the same thing cannot be said of the
other respondent Virginia A. Fernandez, whose legal adoption by the testator has
not been questioned by petitioner (Memorandum for the Petitioner, pp. 8-9). Under
Article 39 of P.D. No. 603, known as the Child and Youth Welfare Code, adoption
gives to the adopted person the same rights and duties as if he were a legitimate
child of the adopter and makes the adopted person a legal heir of the adopter. It

cannot be denied that she was totally omitted and preterited in the will of the
testator and that both adopted child and the widow were deprived of at least their
legitime. Neither can it be denied that they were not expressly disinherited. Hence,
this is a clear case of preterition of the legally adopted child.
Preterition annuls the institution of an heir and annulment throws open to
intestate succession the entire inheritance including la portion libre (que) no
hubiese dispuesto en virtual de legado, mejora o donation (Manresa, as cited in
Nuguid v. Nuguid, supra; Maninang v. Court of Appeals, 114 SCRA [1982]). The
only provisions which do not result in intestacy are the legacies and devises made in
the will for they should stand valid and respected, except insofar as the legitimes
are concerned.
The universal institution of petitioner together with his brothers and sisters to
the entire inheritance of the testator results in totally abrogating the will because
the nullification of such institution of universal heirswithout any other
testamentary disposition in the willamounts to a declaration that nothing at all
was written. Carefully worded and in clear terms, Article 854 of the Civil Code
offers no leeway for inferential interpretation (Nuguid v. Nuguid), supra. No legacies
nor devises having been provided in the will the whole property of the deceased has
been left by universal title to petitioner and his brothers and sisters. The effect of
annulling the institution of heirs will be, necessarily, the opening of a total intestacy
(Neri v. Akutin, 74 Phil. 185 [1943]) except that proper legacies and devises must, as
already stated above, be respected.
We now deal with another matter. In order that a person may be allowed to
intervene in a probate proceeding he must have an interest in the estate, or in the
will, or in the property to be affected by it either as executor or as a claimant of the
estate and an interested party is one who would be benefited by the estate such as
an heir or one who has a claim against the estate like a creditor (Sumilang v.
Ramagosa, 21 SCRA 1369/1967). Petitioner is not the appointed executor, neither a
devisee or a legatee there being no mention in the testamentary disposition of any
gift of an individual item of personal or real property he is called upon to receive
(Article 782, Civil Code). At the outset, he appears to have an interest in the will as
an heir, defined under Article 782 of the Civil Code as a person called to the
succession either by the provision of a will or by operation of law. However, intestacy
having resulted from the preterition of respondent adopted child and the universal

institution of heirs, petitioner is in effect not an heir of the testator. He has no legal
standing to petition for the probate of the will left by the deceased and Special
Proceedings No. 591-A-CEB must be dismissed.
As a general rule certiorari cannot be a substitute for appeal, except when the
questioned order is an oppressive exercise of judicial authority (People v.
Villanueva, 110 SCRA 465 [1981]; Vda. de Caldito v. Segundo, 117 SCRA
573 [1982]; Co Chuan Seng v. Court of Appeals, 128 SCRA 308 [1984]; and Bautista
v. Sarmiento, 138 SCRA 587[1985]). It is axiomatic that the remedies of certiorari
and prohibition are not available where the petitioner has the remedy of appeal or
some other plain, speedy and adequate remedy in the course of law (D.D.
Comendador Construction Corporation v. Sayo (118 SCRA 590 [1982]). They are,
however, proper remedies to correct a grave abuse of discretion of the trial court in
not dismissing a case where the dismissal is founded on valid grounds (Vda. de
Bacang v. Court of Appeals, 125 SCRA 137 [1983]).
Special Proceedings No. 591-CEB is for the probate of a will. As stated by
respondent Court, the general rule is that the probate courts authority is limited
only to the extrinsic validity of the will, the due execution thereof, the testators
testamentary capacity and the compliance with the requisites or solemnities
prescribed by law. The intrinsic validity of the will normally comes only after the
Court has declared that the will has been duly authenticated. Said court at this
stage of the proceedings is not called upon to rule on the intrinsic validity or efficacy
of the provisions of the will (Nuguid v. Nuguid, 17 SCRA 449 [1966]; Sumilang v.
Ramagosa, supra; Maninang v. Court of Appeals, 114 SCRA 478 [1982]; Cayetano v.
Leonidas, 129 SCRA 522 [1984]; and Nepomuceno v. Court of Appeals, 139 SCRA
206 [1985]).
The rule, however, is not inflexible and absolute. Under exceptional
circumstances, the probate court is not powerless to do what the situation
constrains it to do and pass upon certain provisions of the will (Nepomuceno v.
Court of Appeals,supra). In Nuguid v. Nuguid the oppositors to the probate moved to
dismiss on the ground of absolute preterition. The probate court acting on the
motion held that the will in question was a complete nullity and dismissed the
petition without costs. On appeal the Supreme Court upheld the decision of the
probate court, induced by practical considerations. The Court said:

We pause to reflect. If the case were to be remanded for probate of the will, nothing will be
gained. On the contrary, this litigation will be protracted. And for aught that appears in the
record, in the event of probate or if the court rejects the will, probability exists that the case
will come up once again before us on the same issue of the intrinsic validity or nullity of the
will. Result: waste of time, effort, expense, plus added anxiety. These are the practical
considerations that induce us to a belief that we might as well meet head-on the issue of the
validity of the provisions of the will in question. After all there exists a justiciable
controversy crying for solution.

In Saguimsim v. Lindayag (6 SCRA 874 [1962]) the motion to dismiss the petition by
the surviving spouse was grounded on petitioners lack of legal capacity to institute
the proceedings which was fully substantiated by the evidence during the hearing
held in connection with said motion. The Court upheld the probate courts order of
dismissal.
In Cayetano v. Leonidas, supra one of the issues raised in the motion to dismiss
the petition deals with the validity of the provisions of the will. Respondent Judge
allowed the probate of the will. The Court held that as on its face the will appeared
to have preterited the petitioner the respondent judge should have denied its
probate outright. Where circumstances demand that intrinsic validity of
testamentary provisions be passed upon even before the extrinsic validity of the will
is resolved, the probate court should meet the issue. (Nepomuceno v. Court of
Appeals,supra; Nuguid v. Nuguid, supra).
In the instant case private respondents filed a motion to dismiss the petition in
Sp. Proceedings No. 591-CEB of the Regional Trial Court of Cebu on the following
grounds: (1) petitioner has no legal capacity to institute the proceedings; (2) he is
merely a universal heir; and (3) the widow and the adopted daughter have been
preterited (Rollo, p. 158). It was denied by the trial court in an order dated January
21, 1985 for the reason that the grounds for the motion to dismiss are matters
properly to be resolved after a hearing on the issues in the course of the trial on the
merits of the case (Rollo, p. 32). A subsequent motion for reconsideration was denied
by the trial court on February 15, 1985 (Rollo, p. 109).
For private respondents to have tolerated the probate of the will and allowed the
case to progress when on its face the will appears to be intrinsically void as
petitioner and his brothers and sisters were instituted as universal heirs coupled
with the obvious fact that one of the private respondents had been preterited would

have been an exercise in futility. It would have meant a waste of time, effort,
expense, plus added futility. The trial court could have denied its probate outright or
could have passed upon the intrinsic validity of the testamen-tary provisions before
the extrinsic validity of the will was resolved (Cayetano v. Leonidas, supra; Nuguid
v. Nuguid, supra). The remedies of certiorari and prohibition were properly availed
of by private respondents.
Thus, this Court ruled that where the grounds for dismissal are indubitable, the
defendants had the right to resort to the more speedy, and adequate remedies of
certiorari and prohibition to correct a grave abuse of discretion, amounting to lack of
jurisdiction, committed by the trial court in not dismissing the case, (Vda. de
Bacang v. Court of Appeals, supra) and even assuming the existence of the remedy
of appeal, the Court harkens to the rule that in the broader interests of justice, a
petition for certiorari may be entertained, particularly where appeal would not
afford speedy and adequate relief. (Maninang v. Court of Appeals, supra).
PREMISES CONSIDERED, the petition is her eby DENIED for lack of merit and
the questioned decision of respondent Court of Appeals promulgated on August 30,
1985 and its Resolution dated October 23, 1985 are hereby AFFIRMED.
SO ORDERED.
Teehankee (C.J.), Yap, Fernan, Narvasa, Gutierrez, Jr.,
Cruz, Feliciano, Gancayco, Padilla, Bidin, Sarmiento andCortes, JJ., concur.
Melencio-Herrera, J., see separate opinion.
MELENCIO-HERRERA, J., concurring in the result:
I concur in the result on the basic proposition that preterition in this case was by
mistake or inadvertence.
To my mind, an important distinction has to be made as to whether the omission
of a forced heir in the Will of a testator is by mistake or inadvertence, or voluntary
or intentional If by mistake or inadvertence, there is true preterition and total
intestacy results. The reason for this is the inability to determine how the testator

would have distributed his estate if none of the heirs had been omitted or forgotten
(An Outline of Civil Law, J.B.L. Reyes and R.C. Puno, Vol. III, p. 54).
The requisites of preterition are:
1. 1.The heir omitted is a forced heir (in the direct line);
2. 2.The omission is by mistake or thru an oversight;
3. 3.The omission is complete so that the forced heir received nothing in the will. (III
Padilla, Civil Code Annotated, 1973 Edition, pp. 224-225) (Parenthetical addendum
supplied).

On the other hand, if the omission is intentional, the effect would be a defective
disinheritance covered by Article 918 of the Civil Code in which case the institution
of heir is not wholly
void but only insofar as it prejudices the legitime of the person disinherited.
Stated otherwise, the nullity is partial unlike in true preterition where the nullity is
total.
Preterition is presumed to be only an involuntary omission; that is, that if the testator had
known of the existence of the compulsory heir at the time of the execution of the will, he
would have instituted such heir. On the other hand, if the testator attempts to disinherit a
compulsory heir, the presumption of the law is that he wants such heir to receive as little as
possible from his estate. (III Tolentino, Civil Code, 1973 Edition, pp. 174-175).

In the case at bar, there seems to have been mistake or in advertence in the
omission of the adopted daughter, hence, my concurrence in the result that total
intestacy ensued.
Petition denied.
Notes.Under Article 1056 of the Civil Code of 1899 which governs this case a
person during his lifetime may partition his property among his heirs to take effect
after his death and this deed is neither a will nor a donation. (Mang-oy vs. Court of
Appeals, 144 SCRA 33.)

Property donated inter-vivos is subject to collation after donors death, whether

the donation was made to a compulsory or a stranger. (Vda. de Tupas vs. RTC of
Negros Occidental, 144 SCRA 622.)
o0o

G.R. Nos. 14037172. November 27, 2006.

DY YIENG SEANGIO, BARBARA D. SEANGIO and VIRGINIA D. SEANGIO,

petitioners, vs. HON. AMOR A. REYES, in her capacity as Presiding Judge,
Regional Trial Court, National Capital Judicial Region, Branch 21, Manila,
ALFREDO D. SEANGIO, ALBERTO D. SEANGIO, ELISA D. SEANGIO-SANTOS,
VICTOR D. SEANGIO, ALFONSO D. SEANGIO, SHIRLEY D. SEANGIO-LIM,
BETTY D. SEANGIO-OBAS and JAMES D. SEANGIO, respondents.
Succession; Wills; Disinheritance; Maltreatment; For disinheritance to be valid, Article
916 of the Civil Code requires that the same must be effected through a will wherein the legal
cause therefor shall be specified; Maltreatment of a parent by a child presents a sufficient
cause for the disinheritance of the latter.The document, entitled Kasulatan ng Pag-Aalis
ng Mana, unmistakably showed Segundos intention of excluding his eldest son, Alfredo, as
an heir to his estate for the reasons that he cited therein. In effect, Alfredo was disinherited
by Segundo. For disinheritance to be valid, Article 916 of the Civil Code requires that the
same must be effected through a will wherein the legal cause therefor shall be specified.
With regard to the reasons for the disinheritance that were stated by Segundo in his
document, the Court believes that the incidents, taken as a whole, can be considered a form
of maltreatment of Segundo by his son, Alfredo, and that the matter presents a sufficient
cause for the disinheritance of a child or descendant under Article 919 of the Civil Code.
Same; Same; Same; Holographic Wills; A holographic will must be entirely written,
dated, and signed by the hand of the testator himselfit is subject to no other form, and may
be made in or out of the Philippines, and need not be witnessed.A holographic will, as

provided under Article 810 of the Civil Code, must be entirely written, dated, and signed by
the hand of the testator himself. It is subject to no other form, and may be made in or out of
the Philippines, and need not be witnessed. Segundos document, although it may initially
come across as a mere disinheritance instrument, conforms to the formalities of a
holographic will prescribed by law. It is written, dated and signed by the hand of Segundo
himself. An intent to dispose mortis causa can be clearly deduced from the terms of the
instrument, and while it does not make an affirmative disposition of the latters property,
the disinheritance of Alfredo, nonetheless, is an act of disposition in itself. In other words,
the disinheritance results in the disposition of the property of the testator Segundo in favor
of those who would succeed in the absence of Alfredo.
Same; Same; Same; Same; It is a fundamental principle that the intent or the will of
the testator, expressed in the form and within the limits prescribed by law, must be
recognized as the supreme law in succession; Holographic wills, being usually prepared by
one who is not learned in the law, should be construed more liberally than the ones drawn by
an expert, taking into account the circumstances surrounding the execution of the instrument
and the intention of the testator.It is a fundamental principle that the intent or the will of
the testator, expressed in the form and within the limits prescribed by law, must be
recognized as the supreme law in succession. All rules of construction are designed to
ascertain and give effect to that intention. It is only when the intention of the testator is
contrary to law, morals, or public policy that it cannot be given effect. Holographic wills,
therefore, being usually prepared by one who is not learned in the law, as illustrated in the
present case, should be construed more liberally than the ones drawn by an expert, taking
into account the circumstances surrounding the execution of the instrument and the
intention of the testator. In this regard, the Court is convinced that the document, even if
captioned asKasulatan ng Pag-Aalis ng Mana, was intended by Segundo to be his last
testamentary act and was executed by him in accordance with law in the form of a
holographic will. Unless the will is probated, the disinheritance cannot be given effect.
Same; Same; Same; Same; The law favors testacy over intestacy, and testate proceedings
for the settlement of the estate of the decedent take precedence over intestate proceedings; The
probate of a will cannot be dispensed with.Considering that the questioned document is
Segundos holographic will, and that the law favors testacy over intestacy, the probate of the
will cannot be dispensed with. Article 838 of the Civil Code provides that no will shall pass
either real or personal property unless it is proved and allowed in accordance with the
Rules of Court. Thus, unless the will is probated, the right of a person to dispose of his
property may be rendered nugatory. In view of the foregoing, the trial court, therefore,
should have allowed the holographic will to be probated. It is settled that testate
proceedings for the settlement of the estate of the decedent take precedence over intestate
proceedings for the same purpose.

SPECIAL CIVIL ACTION in the Supreme Court. Certiorari.

The facts are stated in the opinion of the Court.
Jose & Duremdes Law Offices for petitioners.
Punsalan, Lising & Punsalan for respondents.
AZCUNA, J.:
This is a petition for certiorari with application for the issuance of a writ of
preliminary injunction and/or temporary restraining order seeking the nullification
of the orders, dated August 10, 1999 and October 14, 1999, of the Regional Trial
Court of Manila, Branch 21 (the RTC), dismissing the petition for probate on the
ground of preterition, in the consolidated cases, docketed as SP. Proc. No. 9890870
and SP. Proc. No. 9993396, and entitled, In the Matter of the Intestate Estate of
Segundo C. Seangio v. Alfredo D. Seangio, et al. and In the Matter of the Probate of
the Will of Segundo C. Seangio v. Dy Yieng Seangio, Barbara D. Seangio and
Virginia Seangio.
1

The facts of the cases are as follows:

On September 21, 1988, private respondents filed a petition for the settlement of
the intestate estate of the late Segundo Seangio, docketed as Sp. Proc. No. 9890870
of the RTC, and praying for the appointment of private respondent Elisa D.
SeangioSantos as special administrator and guardian ad litem of petitioner Dy
Yieng Seangio.
Petitioners Dy Yieng, Barbara and Virginia, all surnamed Seangio, opposed the
petition. They contended that: 1) Dy Yieng is still very healthy and in full command
of her faculties; 2) the deceased Segundo executed a general power of attorney in
favor of Virginia giving her the power to manage and exercise control and
supervision over his business in the Philippines; 3) Virginia is the most competent
and qualified to serve as the administrator of the estate of Segundo because she is a
certified public accountant; and, 4) Segundo left a holographic will, dated
September 20, 1995, disinheriting one of the private respondents, Alfredo Seangio,
for cause. In view of the purported holographic will, petitioners averred that in the

event the decedent is found to have left a will, the intestate proceedings are to be
automatically suspended and replaced by the proceedings for the probate of the will.
On April 7, 1999, a petition for the probate of the holographic will of Segundo,
docketed as SP. Proc. No. 9993396, was filed by petitioners before the RTC. They
likewise reiterated that the probate proceedings should take precedence over SP.
Proc. No. 9890870 because testate proceedings take precedence and enjoy priority
over intestate proceedings.
2

The document that petitioners refer to as Segundos holographic will is quoted, as

follows:
Kasulatan sa pag-aalis ng mana
Tantunin ng sinuman
Ako si Segundo Seangio Filipino may asawa naninirahan sa 465-A Flores St., Ermita,
Manila at nagtatalay ng maiwanag na pagiisip at disposisyon ay tahasan at hayagang
inaalisan ko ng lahat at anumang mana ang paganay kong anak na si Alfredo Seangio dahil
siya ay naging lapastangan sa akin at isan beses siya ng sasalita ng masama harapan ko at
mga kapatid niya na si Virginia Seangio labis kong kinasama ng loob ko at sasabe rin ni
Alfredo sa akin na ako nasa ibabaw gayon gunit daratin ang araw na ako nasa ilalim siya at
siya nasa ibabaw.
Labis kong ikinasama ng loob ko ang gamit ni Alfredo ng akin pagalan para
makapagutang na kuarta siya at kanya asawa na si Merna de los Reyes sa China Bangking
Corporation na millon pesos at hindi ng babayad at hindi ng babayad ito ay nagdulot sa
aking ng malaking kahihiya sa mga may-ari at stockholders ng China Banking.
At ikinagalit ko pa rin ang pagkuha ni Alfredo at ng kanyang asawa na mga custome[r]
ng Travel Center of the Philippines na pinagasiwaan ko at ng anak ko si Virginia.
Dito ako nagalit din kaya gayon ayoko na bilanin si Alfredo ng anak ko at hayanan kong
inaalisan ng lahat at anoman mana na si Alfredo at si Alfredo Seangio ay hindi ko siya
anak at hindi siya makoha mana.
Nila[g]daan ko ngayon ika 20 ng Setyembre 1995 sa longsod ng Manila sa harap ng
tatlong saksi.
3

(signed)

Segundo Seangio
Nilagdaan sa harap namin
(signed)
Dy Yieng Seangio

(signed)

Unang Saksi

Ikalawang saksi
(signed)
Ikatlong saksi

On May 29, 1999, upon petitioners motion, SP. Proc. No. 9890870 and SP. Proc.
No. 9993396 were consolidated.
4

On July 1, 1999, private respondents moved for the dismissal of the probate
proceedings primarily on the ground that the document purporting to be the
holographic will of Segundo does not contain any disposition of the estate of the
deceased and thus does not meet the definition of a will under Article 783 of the
Civil Code. According to private respondents, the will only shows an alleged act of
disinheritance by the decedent of his eldest son, Alfredo, and nothing else; that all
other compulsory heirs were not named nor instituted as heir, devisee or legatee,
hence, there is preterition which would result to intestacy. Such being the case,
private respondents maintained that while procedurally the court is called upon to
rule only on the extrinsic validity of the will, it is not barred from delving into the
intrinsic validity of the same, and ordering the dismissal of the petition for probate
when on the face of the will it is clear that it contains no testamentary disposition of
the property of the decedent.
5

Petitioners filed their opposition to the motion to dismiss contending that: 1)

generally, the authority of the probate court is limited only to a determination of the
extrinsic validity of the will; 2) private respondents question the intrinsic and not
the extrinsic validity of the will; 3) disinheritance constitutes a disposition of the
estate of a decedent; and, 4) the rule on preterition does not apply because
Segundos will does not constitute a universal heir or heirs to the exclusion of one or
more compulsory heirs.
6

On August 10, 1999, the RTC issued its assailed order, dismissing the petition for
probate proceedings:
A perusal of the document termed as will by oppositors/petitioners Dy Yieng Seangio, et
al., clearly shows that there is preterition, as the only heirs mentioned thereat are Alfredo
and Virginia. [T]he other heirs being omitted, Article 854 of the New Civil Code thus
applies. However, insofar as the widow Dy Yieng Seangio is concerned, Article 854 does not
apply, she not being a compulsory heir in the direct line.
As such, this Court is bound to dismiss this petition, for to do otherwise would amount to
an abuse of discretion. The Supreme Court in the case of Acain v. Intermediate Appellate
Court [155 SCRA 100 (1987)] has made its position clear: for . . . respondents to have
tolerated the probate of the will and allowed the case to progress when, on its face, the will
appears to be intrinsically void . . . would have been an exercise in futility. It would have
meant a waste of time, effort, expense, plus added futility. The trial court could have denied
its probate outright or could have passed upon the intrinsic validity of the testamentary
provisions before the extrinsic validity of the will was resolved (italics supplied).
WHEREFORE, premises considered, the Motion to Suspend Proceedings is hereby
DENIED for lack of merit. Special Proceedings No. 9993396 is hereby DISMISSED
without pronouncement as to costs.
SO ORDERED.

Petitioners motion for reconsideration was denied by the RTC in its order dated
October 14, 1999.
Petitioners contend that:
THE RESPONDENT JUDGE ACTED IN EXCESS OF HER JURISDICTION OR WITH
GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF
JURISDICTION AND DECIDED A QUESTION OF LAW NOT IN ACCORD WITH LAW

AND JURISPRUDENCE IN ISSUING THE QUESTIONED ORDERS, DATED 10

AUGUST 1999 AND 14 OCTOBER 1999 (ATTACHMENTS A AND B HEREOF)
CONSIDERING THAT:
I
THE RESPONDENT JUDGE, WITHOUT EVEN COMPLYING WITH SECTIONS 3
AND 4 OF RULE 76 OF THE RULES OF COURT ON THE PROPER PROCEDURE FOR
SETTING THE CASE FOR INITIAL HEARING FOR THE ESTABLISHMENT OF THE
JURISDICTIONAL FACTS, DISMISSED THE TESTATE CASE ON THE ALLEGED
GROUND THAT THE TESTATORS WILL IS VOID ALLEGEDLY BECAUSE OF THE
EXISTENCE OF PRETERITION, WHICH GOES INTO THE INTRINSIC VALIDITY OF
THE WILL, DESPITE THE FACT THAT IT IS A SETTLED RULE THAT THE
AUTHORITY OF PROBATE COURTS IS LIMITED ONLY TO A DETERMINATION OF
THE EXTRINSIC VALIDITY OF THE WILL, I.E., THE DUE EXECUTION THEREOF,
THE TESTATORS TESTAMENTARY CAPACITY AND THE COMPLIANCE WITH THE
REQUISITES OR SOLEMNITIES PRESCRIBED BY LAW;
II
EVEN ASSUMING ARGUENDO THAT THE RESPONDENT JUDGE HAS THE
AUTHORITY TO RULE UPON THE INTRINSIC VALIDITY OF THE WILL OF THE
TESTATOR, IT IS INDUBITABLE FROM THE FACE OF THE TESTATORS WILL THAT
NO PRETERITION EXISTS AND THAT THE WILL IS BOTH INTRINSICALLY AND
EXTRINSICALLY VALID; AND,
III
RESPONDENT JUDGE WAS DUTY BOUND TO SUSPEND THE PROCEEDINGS IN
THE INTESTATE CASE CONSIDERING THAT IT IS A SETTLED RULE THAT
TESTATE PROCEEDINGS TAKE PRECEDENCE OVER INTESTATE PROCEEDINGS.

Petitioners argue, as follows:

First, respondent judge did not comply with Sections 3 and 4 of Rule 76 of the
Rules of Court which respectively mandate the court to: a) fix the time and place for
proving the will when all concerned may appear to contest the allowance thereof,
and cause notice of such time and place to be published three weeks successively
previous to the appointed time in a newspaper of general circulation; and, b) cause
the mailing of said notice to the heirs, legatees and devisees of the testator Segundo;

Second, the holographic will does not contain any institution of an heir, but
rather, as its title clearly states,Kasulatan ng Pag-Aalis ng Mana, simply contains a
disinheritance of a compulsory heir. Thus, there is no preterition in the decedents
will and the holographic will on its face is not intrinsically void;
Third, the testator intended all his compulsory heirs, petitioners and private
respondents alike, with the sole exception of Alfredo, to inherit his estate. None of
the compulsory heirs in the direct line of Segundo were preterited in the holographic
will since there was no institution of an heir;
Fourth, inasmuch as it clearly appears from the face of the holographic will that
it is both intrinsically and extrinsically valid, respondent judge was mandated to
proceed with the hearing of the testate case; and,
Lastly, the continuation of the proceedings in the intestate case will work
injustice to petitioners, and will render nugatory the disinheritance of Alfredo.
The purported holographic will of Segundo that was presented by petitioners was
dated, signed and written by him in his own handwriting. Except on the ground of
preterition, private respondents did not raise any issue as regards the authenticity
of the document.
The document, entitled Kasulatan ng Pag-Aalis ng Mana, unmistakably showed
Segundos intention of excluding his eldest son, Alfredo, as an heir to his estate for
the reasons that he cited therein. In effect, Alfredo was disinherited by Segundo.
For disinheritance to be valid, Article 916 of the Civil Code requires that the
same must be effected through a will wherein the legal cause therefor shall be
specified. With regard to the reasons for the disinheritance that were stated by
Segundo in his document, the Court believes that the incidents, taken as a whole,
can be considered a form of maltreatment of Segundo by his son, Alfredo, and that
the matter presents a sufficient cause for the disinheritance of a child or descendant
under Article 919 of the Civil Code:
Article 919. The following shall be sufficient causes for the disinheritance of children and
descendants, legitimate as well as illegitimate:

1. (1)When a child or descendant has been found guilty of an attempt against the life of
the testator, his or her spouse, descendants, or ascendants;

1. (2)When a child or descendant has accused the testator of a crime for which the law

prescribes imprisonment for six years or more, if the accusation has been found
groundless;

2. (3)When a child or descendant has been convicted of adultery or concubinage with

the spouse of the testator;
3. (4)When a child or descendant by fraud, violence, intimidation, or undue influence
causes the testator to make a will or to change one already made;
4. (5)A refusal without justifiable cause to support the parents or ascendant who
disinherit such child or descendant;
5. (6)Maltreatment of the testator by word or deed, by the child or descendant;

6. (7)When a child or descendant leads a dishonorable or disgraceful life;

7. (8)Conviction of a crime which carries with it the penalty of civil interdiction.

Now, the critical issue to be determined is whether the document executed by

Segundo can be considered as a holographic will.
A holographic will, as provided under Article 810 of the Civil Code, must be
entirely written, dated, and signed by the hand of the testator himself. It is subject
to no other form, and may be made in or out of the Philippines, and need not be
witnessed.
Segundos document, although it may initially come across as a mere
disinheritance instrument, conforms to the formalities of a holographic will
prescribed by law. It is written, dated and signed by the hand of Segundo himself.
An intent to dispose mortis causa can be clearly deduced from the terms of the
instrument, and while it does not make an affirmative disposition of the latters
property, the disinheritance of Alfredo, nonetheless, is an act of disposition in itself.
In other words, the disinheritance results in the disposition of the property of the
testator Segundo in favor of those who would succeed in the absence of Alfredo.
9

10

Moreover, it is a fundamental principle that the intent or the will of the testator,
expressed in the form and within the limits prescribed by law, must be recognized as
the supreme law in succession. All rules of construction are designed to ascertain
and give effect to that intention. It is only when the intention of the testator is
contrary to law, morals, or public policy that it cannot be given effect.
11

Holographic wills, therefore, being usually prepared by one who is not learned in
the law, as illustrated in the present case, should be construed more liberally than
the ones drawn by an expert, taking into account the circumstances surrounding the
execution of the instrument and the intention of the testator. In this regard, the
Court is convinced that the document, even if captioned asKasulatan ng Pag-Aalis
ng Mana, was intended by Segundo to be his last testamentary act and was
executed by him in accordance with law in the form of a holographic will. Unless the
will is probated, the disinheritance cannot be given effect.
12

13

14

With regard to the issue on preterition, the Court believes that the compulsory
heirs in the direct line were not preterited in the will. It was, in the Courts opinion,
Segundos last expression to bequeath his estate to all his compulsory heirs, with
the sole exception of Alfredo. Also, Segundo did not institute an heir to the
exclusion of his other compulsory heirs. The mere mention of the name of one of the
petitioners, Virginia, in the document did not operate to institute her as the
universal heir. Her name was included plainly as a witness to the altercation
between Segundo and his son, Alfredo.
15

16

Considering that the questioned document is Segundos holographic will, and

that the law favors testacy over intestacy, the probate of the will cannot be
dispensed with. Article 838 of the Civil Code provides that no will shall pass either
real or personal property unless it is proved and allowed in accordance with the
Rules of Court. Thus, unless the will is probated, the right of a person to dispose of
his property may be rendered nugatory.
17

In view of the foregoing, the trial court, therefore, should have allowed the
holographic will to be probated. It is settled that testate proceedings for the
settlement of the estate of the decedent take precedence over intestate proceedings
for the same purpose.
18

WHEREFORE, the petition is GRANTED. The Orders of the Regional Trial

Court of Manila, Branch 21, dated August 10, 1999 and October 14, 1999, are set
aside. Respondent judge is directed to reinstate and hear SP Proc. No. 9993396 for
the allowance of the holographic will of Segundo Seangio. The intestate case or SP.
Proc. No. 9890870 is hereby suspended until the termination of the aforesaid
testate proceedings.
No costs.
SO ORDERED.
Puno (Chairperson), Sandoval-Gutierrez, Coronaand Garcia, JJ., concur.
Petition granted.
Notes.The probate of a will is conclusive as to its due execution and extrinsic
validity and settles only the question of whether the testator, being of sound mind,
freely executed it in accordance with the formalities prescribed by lawquestions as
to intrinsic validity may still be raised even after the will has been authenticated.
(Estate of Hilario M. Ruiz vs. Court of Appeals, 252 SCRA 541 [1996])
A probate court or one in charge of proceedings whether testate or intestate cannot
adjudicate or determine title to properties claimed to be a part of the estate and
which are claimed to belong to outside parties. (Sanchez vs. Court of Appeals, 279
SCRA 647 [1997])
o0o

Nos. L-27860 & L-27896. September 30, 1975.

PHILIPPINE COMMERCIAL AND INDUSTRIAL BANK, Administrator of the

Testate Estate of Charles Newton Hodges (Sp. Proc. No. 1672 of the Court of First
Instance of Iloilo), petitioner, vs.THE HONORABLE VENICIO ESCOLIN, presiding
Judge of the Court of First Instance of Iloilo, Branch II, and AVELINA A. MAGNO,
respondents.
Nos. L-27936 & L-27937. September 30, 1975.

TESTATE ESTATE OF THE LATE LINNIE JANE HODGES (Sp. Proc. No. 1307).
TESTATE ESTATE OF THE LATE CHARLES NEWTON HODGES (Sp. Proc. No.
1672). PHILIPPINE COMMERCIAL AND INDUSTRIAL BANK, administratorappellant, vs.LORENZO CARLES, JOSE PABLICO, ALFREDO CATEDRAL,
SALVADOR GUZMAN, BELCESAR CAUSING, FLORENIA BARRIDO,
PURIFICACION CORONADO, GRACIANO LUCERO, ARITEO THOMAS JAMIR,
MELQUIADES BATISANAN, PEPITO IYULORES, ESPERIDION PARTISALA,
WINIFREDO ESPADA, ROSARIO ALINGASA, ADELFA PREMAYLON,
SANTIAGO PACAONSIS, and AVELINA A. MAGNO, the last as Administratrix in
Sp. Proc. No. 1307, appellees, WESTERN INSTITUTE OF TECHNOLOGY, INC.,
movant-appellee.
Motion for reconsideration; A motion for reconsideration which does not wake out a new
matter sufficiently persuasive to induce modification of judgment will be denied.Upon
consideration of said motions, the Court has not found any new matter wherein sufficiently
persuasive to induce a modification of its judgment, for which reason, the Court, with its
members reaffirming their previous opinions and votes, resolved unanimously to DENY as
it hereby DENIES the motions for reconsideration and modification above referred to.
Preliminary injunctions; Assessment of damages suffered as result of issuance of
preliminary injunction should be made.Anent the motion for respondent-appellee Avelina
Magno for the assessment of the damages she claims she and the Estate of Linnie Jane
Hodges have suffered by reason of the preliminary injunction in this case which was lifted
per resolution of the Court of September 8, 1972, the Court resolved to authorize the trial
court to make the assessment prayed for, subject to appeal, to this Court, if necessary.

RESOLUTION
BARREDO, J.:
Motion for reconsideration followed by a supplemental motion for reconsideration
filed by petitioner-appellant Philippine Commercial and Industrial Bank and motion
for modification filed by Joe Hodges and the other heirs of Charles Newton Hodges
in regard to the decision of this Court of March 29, 1974.
Upon consideration of said motions, the Court has not found any new matter
therein sufficiently persuasive to induce a modification of its judgment, for which
reason, the Court, with its members reaffirming their previous opinions and votes,
resolved unanimously to DENY as it hereby DENIES the motions for
reconsideration and modification above referred to.
Anent the motion of respondent-appellee Avelina Magno for the assessment of
the damages she claims she and the Estate of Linnie Jane Hodges have suffered by
reason of the preliminary injunction in this case which was lifted per resolution of
the Court of September 8, 1972, the Court resolved to authorize the trial court to
make the assessment prayed for, subject to appeal, to this Court, if necessary.
Considering the substantial value of the subject estates and the length of time
they have already been pending judicial settlement and for the reason that the
payment of the corresponding taxes thereon are being unduly delayed, and also
because the properties of said estates have to be disposed of in favor of Filipinos
before May 27, 1976, the Court enjoins the parties to exert all efforts to have the
inventories of said estates finalized without further delay, and if possible to
extrajudicially settle their remaining differences to avoid further complications,
expenses and unnecessary loss of time. The respondent court is directed to expedite
proceedings by giving due priority thereto, requiring the parties to submit the
inventories within thirty days from notice hereof, and to resolve the remaining
issues as delineated in the Courts decision and to close the proceedings upon
payment of the corresponding taxes within three months from notice hereof.
Respondent judge is further directed to report to this Court from time to time the
action taken by him hereon.

Castro, Acting C.J., Fernando,Muoz

concur.

Palma, Aquino and Martin,

JJ.,

Teehankee, J., files a separate opinion.

Makasiar, J., concurs in the separate opinion of Mr. Justice Teehankee.
Antonio, J., concurs in the denial of the motions for reconsideration and
notification and in the separate opinion of Justice Teehankee.
Makalintal, C.J., Esguerra andConcepcion, Jr., JJ., are on leave.
TEEHANKEE, J.:
I join in the resolution denying the motions for reconsideration for the reasons and
considerations already indicated in my separate concurring and dissenting opinion
of March 29, 1974.
I specially welcome the resolutions directive to respondent court to expedite and
terminate these long-drawn out proceedings (for over 18 years now since Linnie
Jane Hodges death on May 23, 1957) and to resolve the remaining issues as
delineated in the Courts decision and to cause the payment of the estate and
inheritance taxes long overdue to the Government within three months from notice
hereof. (See pp. 19-20, writers separate opinion).
I take it that the resolutions directive to respondent court to expedite and
terminate the protracted proceedings within three months supersedes pro tanto the
disposition in the original decision of March 29, 1974 for the segregation of the
minimum one-fourth of the community properties adjudged to be the estate of
Linnie Jane Hodges for delivery to and exclusive administration by respondent as
her estates administrator, with the other one-fourth to remain under the joint
administration of said respondent and petitioner and Charles Newton Hodges onehalf share to be administered by petitioner exclusively as his estates administrator,
since such physical segregation and separate administration could not possibly be
accomplished before the more pressing and indispensable matters of submittal of
the two estates inventories and determination by respondent court of the remaining
issues are attended to by respondent court within the limited three-month period
given in the Courts resolution. (See pages 7-8, writers separate opinion).

The remaining issues to be resolved by respondent court revolve on the two

questions of renvoi and renunciation. In his separate opinion (at page 7 et seq.), as
concurred in by the Chief Justice and Justice Makasiar and Antonio, the writer
urged that these two questions should be resolved preferentially and expeditiously
by respondent court, since aside from the time problem, these proceedings have
apparently degenerated into a running battle between the administrators of the
two estates to the common prejudice of all the heirs. (at page 20).
Since respondent court is now again presided by still another judge in a long line
of judges who have come and gone without even terminating the proceedings, and
since as is clear from the decision itself, no consensus on the best means of
expediting the closing of the estates was reached by a majority of the Court (see
pages 8 and 10, separate opinion), I trust that those who did not concur with the
suggested guidelines in the writers separate opinion (at pages 8-20) either
because they were not ready to express their definite opinion thereon or because
they felt that respondent court should be given a free hand, will understand that the
writer now commends anew to the new judge presiding respondent court the careful
reading of the said suggested guidelines in the hope that they may lighten his work
and help find the appropriate measures and solutions to expedite the closing of the
protracted estate proceedings below to the mutual satisfaction of the heirs and
without need of a dissatisfied party elevating his resolution of this only remaining
issue once more to this Court and dragging out indefinitely the proceedings. (page
10, separate opinion), and thus enable him to comply timely with the Courts
directive to close out the estates within three months from notice.
Makasiar and Antonio, JJ., concur.
o0o

No. L-27952. February 15, 1982.

TESTATE ESTATE OF JOSE EUGENIO RAMIREZ, MARIA LUISA PALACIOS,

Administratrix, petitioner-appellee, vs.MARCELLE D. VDA. DE RAMIREZ, ET AL.,
oppositors, JORGE and ROBERTO RAMIREZ, legatees, oppositors-appellants.
Testate Succession, The testator cannot impose any lien, substitution, or condition on
his widows legitime.The appellants do not question the legality of giving Marcelle onehalf of the estate in full ownership. They adroit that the testators dispositions impaired his
widows legitime. Indeed, under Art. 900 of the Civil Code If the only survivor is the widow
or widower, she or he shall be entitled to one-half of the hereditary estate. And since
Marcelle alone survived the deceased, she is entitled to one-half of his estate over which he
could impose no burden, encumbrance, condition or substitution of any kind whatsoever.
(Art. 904, par. 2, Civil Code.)
Same; The proposed creation by the administratrix in favor of the testators widow of a
usufruct over 113 of the free portion of the testators estate cannot be made where it will run
counter to testators express will.It is the one-third usufruct over the free portion which
the appellants question and justifiably so. It appears that the court a quo approved the
usufruct in favor of Marcelle because the testament provides for a usufruct in her favor of
one-third of the estate. The court a quoerred for Marcelle who is entitled to one-half of the
estate en pleno dominio as her legitime and which is more than what she is given under
the will is not entitled to have any additional share in the estate. To give Marcelle more
than her legitime will run counter to the testators intention for as stated above his
dispositions even impaired her legitime and tended to favor Wanda.
Same; A vulgar substitution of heirs is valid even if the heir designated survives the
testator inasmuch us vulgar substitution can take place also by refusal or incapacity to
inherit of the first heir.They allege that the substitution in its vulgar aspect is void
because Wanda survived the testator or stated differently because she did not predecease
the testator. But dying before the testator is not the only case for vulgar substitution for it
also includes refusal or incapacity to accept the inheritance as provided in Art. 859 of the
Civil Code, supra.Hence, the vulgar substitution is valid.
Same; A fideicommissary substitution is void if first heir is not related in the 1st degree
to the second heir.As regards the substitution in its fideicommissary aspect, the
appellants are correct in their claim that it is void for the following reasons: The substitutes
(Juan Pablo Jankowski and Horace V. Ramirez) are not related to Wanda, the heir
originally instituted. Art 863 of the Civil Code validates a fideicommissary substitution
provided such substitution does not go beyond one degree from the heir originally
instituted.

Same; Constitutional Law; The Constitutional provision which allows aliens to acquire
lands by succession does not apply to testamentary succession.We are of the opinion that
the Constitutional provision which enables aliens to acquire private lands does not extend
to testamentary succession for otherwise the prohibition will be for naught and
meaningless. Any alien would be able to circumvent the prohibition by paying money to a
Philippine landowner in exchange for a devise of a piece of land.
Same; Same; An alien may be bestowed usufructuary rights over a parcel of land in the
Philippines.We uphold the usufruct in favor of Wanda because a usufruct, albeit a real
right, does not vest title to the land in the usufructuary and it is the vesting of title to land
in favor of aliens which is proscribed by the Constitution.

APPEAL from the decision of the Court of First Instance of Manila, Branch X.
The facts are stated in the opinion of the Court.
ABAD SANTOS, J.:
The main issue in this appeal is the manner of partitioning the testate estate of
Jose Eugenio Ramirez among the principal beneficiaries, namely: his widow
Marcelle Demoron de Ramirez; his two grandnephews Roberto and Jorge Ramirez;
and his companion Wanda de Wrobleski.
The task is not trouble-free because the widow Marcelle is a French who lives in
Paris, while the companion Wanda is an Austrian who lives in Spain. Moreover, the
testator provided for substitutions.
Jose Eugenio Ramirez, a Filipino national, died in Spain on December 11, 1964,
with only his widow as compulsory heir. His will was admitted to probate by the
Court of First Instance of Manila, Branch X, on July 27, 1965. Maria Luisa Palacios
was appointed administratrix of the estate. In due time she submitted an inventory
of the estate as follows:

INVENTARIO
Una sexta parte (1/6) pro-indivisa
de un terreno, con sus mejoras y
edificaciones, situado en la Escolta,

P500,000.00

INVENTARIO
Manila ..............................................
.............
Una sexta parte (1/6) pro-indivisa
de dos parcelas de terreno situadas
en Antipolo, Rizal. ..............

658.34

Cuatrocientos noventa y uno

(491) acciones de la Central
Azucarera de la Carlota a P17.00
por accion .........................
Diez mil ochocientos seiz
(10,806) acciones de la Central
Luzon Milling Co., disuelta y en
liquidation, a P0.15 por
accion ..............
Cuenta de Ahorros en el
Philippine Trust Co. ..............
TOTAL .............................................
...

2,350.73

P512,976.97

MENOS:
Deuda al Banco de las Islas
Filipinas, garantizada con prenda de
las acciones de La Carlota ......
VALOR LIQUIDO ........................

P507,976.97

INVENTARIO

The testamentary dispositions are as follows:

A.En nuda propiedad, a D. Roberto y D. Jorge Ramirez, ambos menores de edad,
residentes en Manila, I.F., calle Wright, No. 1818, Malate, hijos de su sobrino D. Jose Ma.
Ramirez, con sustitucion vulgar a favor de sus respectivos descendientes, y, en su defecto,
con sustitucion vulgar reciproca entre ambos.
El precedente legado en nuda propiedad de la participation indivisa de la finca SantaCruz Building, lo ordena el testador a favor de los legatarios nombrados. en atencion a que
dicha propiedad fue creation del querido padre del otorgante y por ser aquellos
continuadores del apellido Ramirez.
B.Y en usufructo a saber:
1. aEn cuanto a una tercera parte, a favor de la esposa del testador Da. Marcelle
Ramirez, domiciliada en IE PECO, calle del General Gallieni. No. 33. Seine,
Francia. con sustitucion vulgar u fideicomisaria a favor de Da. Wanda de Wrobleski,
de Palma de Mallorca, Son Rapina, Avenida de los Reyes 13.
2. b.Y en cuanto a las dos terceras partes restantes, a favor de la nombrada Da.
Wanda de Wrobleski, con sustitucion vulgar y fideicomisaria, a saber:
En cuanto a la mitad de dichas dos terceras partes, a favor de D. Juan Pablo Jankowski,
de Son Rapina, Palma de Mallorca; y encuanto a la mitad restante, a favor de su sobrino, D.
Horace V. Ramirez, San Luis Building, Florida St. Ermita, Manila, I.F.
A pesar de las sustituciones fideicomisarias precedentemente ordinadas, las
usufructuarias nombradas conjuntamente con los nudo propietarios, podran en cualquier
momento vender a tercero los bienes objeto delegado, sin intervencion alguna de los
titulares fideicomisarios.

On June 23, 1966, the administratrix submitted a project of partition as follows: the
property of the deceased is to be divided into two parts. One part shall go to the
widow en pleno dominio in satisfaction of her legitime; the other part or free

portion shall go to Jorge and Roberto Ramirez en nuda propriedad. Furthermore,

one third (1/3) of the free portion is charged with the widows usufruct and the
remaining two-third (2/3) with a usufruct in favor of Wanda.
Jorge and Roberto opposed the project of partition on the grounds: (a) that the
provisions for vulgar substitution in favor of Wanda de Wrobleski with respect to the
widows usufruct and in favor of Juan Pablo Jankowski and Horacio V. Ramirez,
with respect to Wandas usufruct are invalid because the first heirs (Marcelle and
Wanda) survived the testator; (b) that the provisions for fideicommissary
substitutions are also invalid because the first heirs are not related to the second
heirs or substitutes within the first degree, as provided in Article 863 of the Civil
Code; (c) that the grant of a usufruct over real property in the Philippines in favor of
Wanda Wrobleski, who is an alien, violates Section 5, Article III of the Philippine
Constitution; and that (d) the proposed partition of the testators interest in the
Santa Cruz (Escolta) Building between the widow Marcelle, and the appellants,
violates the testators express will to give this property to them. Nonetheless, the
lower court approved the project of partition in its order dated May 3, 1967. It is this
order which Jorge and Roberto have appealed to this Court.
1. 1.The widows legitime.

The appellants do not question the legality of giving Marcelle one-half of the estate
in full ownership. They admit that the testators dispositions impaired his widows
legitime. Indeed, under Art. 900 of the Civil Code If the only survivor is the widow
or widower, she or he shall be entitled to one-half of the hereditary estate. And
since Marcelle alone survived the deceased, she is entitled to one-half of his estate
over which he could impose no burden, encumbrance, condition or substitution of
any kind whatsoever. (Art. 904, par. 2, Civil Code.)
It is the one-third usufruct over the free portion which the appellants question
and justifiably so. It appears that the court a quo approved the usufruct in favor of
Marcelle because the testament provides for a usufruct in her favor of one-third of
the estate. The courta quo erred for Marcelle who is entitled to one-half of the estate
en pleno dominio as her legitime and which is more than what she is given under
the will is not entitled to have any additional share in the estate. To give Marcelle
more than her legitime will run counter to the testators intention for as stated
above his dispositions even impaired her legitime and tended to favor Wanda.

1. 2.The substitutions.

It may be useful to recall that Substitution is the appointment of another heir so

that he may enter into the inheritance in default of the heir originally instituted.
(Art. 857, Civil Code.) And that there are several kinds of substitutions, namely:
simple or common, brief or compendious, reciprocal, and fideicommissary. (Art. 858,
Civil Code.) According to Tolentino, Although the Code enumerates four classes,
there are really only two principal classes of substitutions: thesimple and
the fideicommissary. The others are merely variations of these two. (III Civil Code,
p. 185 [1973].)
The simple or vulgar is that provided in Art. 859 of the Civil Code which reads:
ART. 859. The testator may designate one or more persons to substitute the heir or heirs
instituted in case such heir or heirs should die before him, or should not wish, or should be
incapacitated to accept the inheritance.
A simple substitution, without a statement of the cases to which it refers, shall comprise
the three mentioned in the preceding paragraph, unless the testator has otherwise
provided.

The fideicommissary substitution is described in the Civil Code as follows:

ART. 863. A fideicommissary substitution by virtue of which the fiduciary or first heir
instituted is entrusted with the obligation to preserve and to transmit to a second heir the
whole or part of inheritance, shall be valid and shall take effect, provided such substitution
does not go beyond one degree from the heir originally instituted, and provided further that
the fiduciary or first heir and the second heir are living at time of the death of the testator.

It will be noted that the testator provided for a vulgar substitution in respect of the
legacies of Roberto and Jorge Ramirez, the appellants, thus: con sustitucion vulgar
a favor de sus respectivos descendientes, y, en su defecto, con substitution vulgar
reciproca entre ambos. The appellants do not question the legality of the
substitution so provided.
The appellants question the sustitucion vulgar y fideicomisaria a favor de Da.
Wanda de Wrobleski in connection with the one-third usufruct over the estate given
to the widow Marcelle. However, this question has become moot because as We have
ruled above, the widow is not entitled to any usufruct.

The appellants also question the sustitucion vulgar y fideicomisaria in

connection with Wandas usufruct over two-thirds of the estate in favor of Juan
Pablo Jankowski and Horace V. Ramirez.
They allege that the substitution in its vulgar aspect as void because Wanda
survived the testator or stated differently because she did not predecease the
testator. But dying before the testator is not the only case for vulgar substitution for
it also includes refusal or incapacity to accept the inheritance as provided in Art.
859 of the Civil Code, supra. Hence, the vulgar substitution is valid.
As regards the substitution in its fideicommissary aspect, the appellants are
correct in their claim that it is void for the following reasons:
(a) The substitutes (Juan Pablo Jankowski and Horace V. Ramirez) are not related
to Wanda, the heir originally instituted. Art. 863 of the Civil Code validates a
fideicommissary substitution provided such substitution does not go beyond one
degree from the heir originally instituted.
What is meant by one degree from the first heir is explained by Tolentino as
follows:
Scaevola, Maura, and Traviesas construe degree as designation, substitution, or
transmission. The Supreme Court of Spain has decidedly adopted this construction. From
this point of view, there can be only one transmission or substitution, and the substitute
need not be related to the first heir. Manresa, Morell, and Sanchez Roman, however,
construe the word degree as generation, and the present Code has obviously followed this
interpretation, by providing that the substitution shall not go beyond one degree from the
heir originally instituted. The Code thus clearly indicates that the second heir must be
related to and be one generation from the first heir.
From this, it follows that the fideicommissary can only be either a child or a parent of
the first heir. These are the only relatives who are one generation or degree from the
fiduciary. (Op cit, pp. 193-194.)

(b) There is no absolute duty imposed on Wanda to transmit the usufruct to the
substitutes as required by Arts. 865 and 867 of the Civil Code. In fact, the appellee
admits that the testator contradicts the establishment of a fideicommissary
substitution when he permits the properties subject of the usufruct to be sold upon
mutual agreement of the usufructuaries and the naked owners. (Brief, p. 26.)

1. 3.The usufruct of Wanda.

The appellants claim that the usufruct over real properties of the estate in favor of
Wanda is void because it violates the constitutional prohibition against the
acquisition of lands by aliens.
The 1935 Constitution which is controlling provides as follows:
SEC. 5. Save in cases of hereditary succession, no private agricultural land shall be
transferred or assigned except to individuals, corporations, or associations qualified to
acquire or hold lands of the public domain in the Philippines. (Art. XIII.)

The court a quo upheld the validity of the usufruct given to Wanda on the ground
that the Constitution covers not only succession by operation of law but also
testamentary succession. We are of the opinion that the Constitutional provision
which enables aliens to acquire private lands does not extend to testamentary
succession for otherwise the prohibition will be for naught and meaningless. Any
alien would be able to circumvent the prohibition by paying money to a Philippine
landowner in exchange for a devise of a piece of land.
This opinion notwithstanding, We uphold the usufruct in favor of Wanda because
a usufruct, albeit a real right, does not vest title to the land in the usufructuary and
it is the vesting of title to land in favor of aliens which is proscribed by the
Constitution.
IN VIEW OF THE FOREGOING, the estate of Jose Eugenio Ramirez is hereby
ordered distributed as follows:
One-half (1/2) thereof to his widow as her legitime;
One-half (1/2) thereof which is the free portion to Roberto and Jorge Ramirez in
naked ownership and the usufruct to Wanda de Wrobleski with a simple
substitution in favor of Juan Pablo Jankowski and Horace V. Ramirez.
The distribution herein ordered supersedes that of the court a quo. No special
pronouncement as to costs.
SO ORDERED.

concur.

Barredo (Chairman), Concepcion, Jr., De Castro, Ericta and Escolin, JJ.,

Aquino, J., took no part.

Estate ordered distributed.
Notes.Will of testator is the first and principal law in the matter of
testaments. (Rigor vs. Rigor, 89 SCRA 493).
One canon in the interpretation of the testamentary provisions is that the
testators intention is to be ascertained from the words of the will, taking into
consideration the circumstances as to his intention. (Rigor vs. Rigor, 89 SCRA 493).
It is presumed that a witness to a will has the qualifications prescribed by law,
unless the contrary is established by the oppositor. (Gonzales vs. Court of Appeals,90
SCRA 183).
Decree of adjudication in a testate proceedings is binding on the whole world.
(Gallanosa vs. Arcangel, 83 SCRA 676).
When an order of partition of the estate of the deceased becomes final, the
appealed decision declaring that appellee as the legitimate children of the deceased
and entitled to the annulment of the institution of heirs made in the probated will of
the latter becomes final and executory likewise and hence the case on appeal is moot
and academic. (Ventura vs. Ventura, 77 SCRA 159).
Where submission of project of partition and distribution, with final accounting,
to probate court deemed substantial compliance with Civil Code provisions on
liquidation of conjugal partnership. (Divinagracia vs. Rovira, 72 SCRA 307).
The rule that a legitimate child cannot succeed to the estate of an illegitimate
child is applicable in other cases. (Corpus vs. Corpus, 85 SCRA 567). Thus, a halfbrother who is legitimate cannot succeed to the estate of an illegitimate child under
the rules of intestacy. (Ibid.)
Although attesting witnesses testified against the due execution of the last
testament, the will may be allowed probate if the court is satisfied from the

testimony of other witness that it was executed and attested as required by law.
(Vda. de Ramos vs. Court of Appeals, 81 SCRA 393).
In order that the right of a forced heir may be limited to the completion of his
legitime (instead of the annulment of the institution of heirs), it is not necessary
that what has been left to him in the will by any title as by legacy, be granted to
him in his capacity as heir. (Aznar vs. Duncan, 17 SCRA 590).
A parcel of land, which was invalidly donated by the husband to his future spouse,
remained as his property and, upon his death, should be inherited by his children of
the 1st and 2nd marriages, subject to the right of the surviving spouse. (Pacio vs.
Billon, 1 SCRA 384).
Nephews and nieces alone do not inherit by right of representation (i.e., per
stirpes), unless concurring with brothers or sisters of the deceased. (AbellanaBacayo vs. Ferraris-Borromeo,14 SCRA 986).
o0o

G.R. No. 113725. June 29, 2000.

JOHNNY S. RABADILLA, petitioner, vs.COURT OF APPEALS AND MARIA

MARLENA COSCOLUELLA Y BELLEZA VILLACARLOS, respondents.
1

Civil Law; Succession; Wills; Successional rights are transmitted from the moment of
death of the decedent and compulsory heirs are called to succeed by operation of law. It is a
general rule under the law on succession that successional rights are transmitted from the
moment of death of the decedent and compulsory heirs are called to succeed by operation of
law. The legitimate children and descendants, in relation to their legitimate parents, and
the widow or widower, are compulsory heirs. Thus, the petitioner, his mother and sisters, as
compulsory heirs of the instituted heir, Dr. Jorge Rabadilla, succeeded the latter by
operation of law, without need of further proceedings, and the successional rights were
transmitted to them from the moment of death of the decedent, Dr. Jorge Rabadilla.

Same; Same; Same; Inheritance includes all the property, rights and obligations of a
person, not extinguished by his death.Under Article 776 of the New Civil Code,
inheritance includes all the property, rights and obligations of a person, not extinguished by
his death. Conformably, whatever rights Dr. Jorge Rabadilla had by virtue of subject Codicil
were transmitted to his forced heirs, at the time of his death. And since obligations not
extinguished by death also form part of the estate of the decedent; corollarily, the
obligations imposed by the Codicil on the deceased Dr. Jorge Rabadilla, were likewise
transmitted to his compulsory heirs upon his death.
Same; Same; Same; Substitution is the designation by the testator of a person or
persons to take the place of the heir or heirs first instituted.Substitution is the designation
by the testator of a person or persons to take the place of the heir or heirs first instituted.
Under substitutions in general, the testator may either (1) provide for the designation of
another heir to whom the property shall pass in case the original heir should die before
him/her, renounce the inheritance or be incapacitated to inherit, as in a simple substitution,
or (2) leave his/her property to one person with the express charge that it be transmitted
subsequently to another or others, as in a fideicommissary substitution.
Same; Same; Same; In simple substitutions, the second heir takes the inheritance in
default of the first heir by reason of incapacity, predecease or renunciation.In simple
substitutions, the second heir takes the inheritance in default of the first heir by reason of
incapacity, predecease or renunciation. In the case under consideration, the provisions of
subject Codicil do not provide that should Dr. Jorge Rabadilla default due to predecease,
incapacity or renunciation, the testatrixs near descendants would substitute him. What the
Codicil provides is that, should Dr. Jorge Rabadilla or his heirs not fulfill the conditions
imposed in the Codicil, the property referred to shall be seized and turned over to the
testatrixs near descendants.
Same; Same; Same; In a fideicommissary substitution, the first heir is strictly
mandated to preserve the property and to transmit the same later to the second heir; Without
the obligation to preserve clearly imposed by the testator in his will, there is no
fideicommissary substitution.In a fideicommissary substitution, the first heir is strictly
mandated to preserve the property and to transmit the same later to the second heir. In the
case under consideration, the instituted heir is in fact allowed under the Codicil to alienate
the property provided the negotiation is with the near descendants or the sister of the
testatrix. Thus, a very important element of a fideicommissary substitution is lacking; the
obligation clearly imposing upon the first heir the preservation of the property and its
transmission to the second heir. Without this obligation to preserve clearly imposed by the
testator in his will, there is no fideicommissary substitution. Also, the near descendants
right to inherit from the testatrix is not definite. The property will only pass to them should

Dr. Jorge Rabadilla or his heirs not fulfill the obligation to deliver part of the usufruct to
private respondent.
Same; Same; Same; A fideicommissary substitution is therefore, void if the first heir is
not related by first degree to the second heir.Another important element of a
fideicommissary substitution is also missing here. Under Article 863, the second heir or the
fideicommissary to whom the property is transmitted must not be beyond one degree from
the first heir or the fiduciary. A fideicommissary substitution is therefore, void if the first
heir is not related by first degree to the second heir. In the case under scrutiny, the near
descendants are not at all related to the instituted heir, Dr. Jorge Rabadilla.
Same; Same; Same; Distinction between modal institution and conditional
testamentary disposition.The institution of an heir in the manner prescribed in Article
882 is what is known in the law of succession as an institucion sub modo or a modal
institution. In a modal institution, the testator states (1) the, object of the institution, the
purpose or application of the property left by the testator, or the charge imposed by the
testator upon the heir. A mode imposes an obligation upon the heir or legatee but it does
not affect the efficacy of his rights to the succession. On the other hand, in a conditional
testamentary disposition, the condition must happen or be fulfilled in order for the heir to
be entitled to succeed the testator. The condition suspends but does not obligate; and the
mode obligates but does not suspend. To some extent, it is similar to a resolutory condition.
Same; Same; Same; In case of doubt, the institution should be considered as modal and
not conditional.Then too, since testamentary dispositions are generally acts of liberality,
an obligation imposed upon the heir should not be considered a condition unless it clearly
appears from the Will itself that such was the intention of the testator. In case of doubt, the
institution should be considered as modal and not conditional.
Same; Same; Same; In the interpretation of Wills, when an uncertainty arises on the
face of the Will, the testators intention is to be ascertained from the words of the Will, taking
into consideration the circumstances under which it was made.In the interpretation of
Wills, when an uncertainty arises on the face of the Will, as to the application of any of its
provisions, the testators intention is to be ascertained from the words of the Will, taking
into consideration the circumstances under which it was made. Such construction as will
sustain and uphold the Will in all its parts must be adopted.
Same; Same; Same; A Will is a personal, solemn, revocable and free act by which a
person disposes of his property, to take effect after his death.Suffice it to state that a Will is
a personal, solemn, revocable and free act by which a person disposes of his property, to
take effect after his death. Since the Will expresses the manner in which a person intends

how his properties be disposed, the wishes and desires of the testator must be strictly
followed. Thus, a Will cannot be the subject of a compromise agreement which would
thereby defeat the very purpose of making a Will.

VITUG, J., Separate Opinion:

Civil Law; Succession; Wills; There is no simple substitution that takes place where the
heir originally instituted is able to succeed.Substitution is the appointment of another heir
so that he may enter into the inheritance in default of the heir originally instituted.
Substitution is simple when the testator designates one or more persons to substitute the
heir or heirs instituted in case the latter should die before him, or should not wish, or
should be incapacitated to accept the inheritance, and a substitution without a statement of
the cases to which it refers shall comprise all said three cases. There is no simple
substitution that takes place where the heir originally instituted is able to succeed.
Fideicommissary substitution, on the other hand, occurs when the fiduciary or first heir
instituted is entrusted with the obligation to preserve and to transmit to a second heir the
whole or part of the inheritance. Every fideicommissary substitution should be expressly
made in order that it may be valid. The term fideicommissary substitution need not,
however, be used in the will; it is enough that there is a clear and unequivocal statement
that one shall enjoy usufructuary or other rights, short of naked ownership or title, over
certain property of the testator with the obligation to preserve the property and to transmit
it to a second heir. It is essential for the validity of a fideicommissary substitution that both
heirs are living and qualified to succeed at the time of death by the testator and that the
substitute does not go beyond one degree from the heir originally instituted. The term one
degree has been the subject of varied interpretation.

PETITION for review on certiorari of a decision of the Court of Appeals.

The facts are stated in the opinion of the Court.
Romeo S. Perez for petitioners.
Benjamin Santos & Ofelia Calcetas-Santos Law Offices for respondent
Marlene C. Villacarlos.
Garcia, Ines, Villacarlos, Garcia
respondents.
PURISIMA, J.:

and

Recina

Law

Offices for

private

This is a petition for review of the decision of the Court of Appeals, dated December
23, 1993, in CA-G.R. No. CV-35555, which set aside the decision of Branch 52 of the
Regional Trial Court in Bacolod City, and ordered the defendants-appellees
(including herein petitioner), as heirs of Dr. Jorge Rabadilla, to reconvey title over
Lot No. 1392, together with its fruits and interests, to the estate of Aleja Belleza.
3

The antecedent facts are as follows:

In a Codicil appended to the Last Will and Testament of testatrix Aleja Belleza,
Dr. Jorge Rabadilla, predecessor-in-interest of the herein petitioner, Johnny S.
Rabadilla, was instituted as a devisee of 511,855 square meters of that parcel of
land surveyed as Lot No. 1392 of the Bacolod Cadastre. The said Codicil, which was
duly probated and admitted in Special Proceedings No. 4046 before the then Court
of First Instance of Negros Occidental, contained the following provisions:
FIRST
I give, leave and bequeath the following property owned by me to Dr. Jorge Rabadilla
resident of 141 P. Villanueva, Pasay City:
1. (a)Lot No. 1392 of the Bacolod Cadastre, covered by Transfer Certificate of Title No.
RT-4002 (10942), which is registered in my name according to the records of the
Register of Deeds of Negros Occidental.
2. (b)That should Jorge Rabadilla die ahead of me, the aforementioned property and
the rights which I shall set forth hereinbelow, shall be inherited and acknowledged
by the children and spouse of Jorge Rabadilla.
xxx
FOURTH
(a) It is also my command, in this my addition (Codicil), that should I die and Jorge
Rabadilla shall have already received the ownership of the said Lot No. 1392 of the Bacolod
Cadastre, covered by Transfer Certificate of Title No. RT-4002 (10942), and also at the time
that the lease of Balbinito G. Guanzon of the said lot shall expire, Jorge Rabadilla shall
have the obligation until he dies, every year to give to Maria Marlina Coscolluela y Belleza,
Seventy (75) (sic) piculs of Export sugar and Twenty Five (25) piculs of Domestic sugar,
until the said Maria Marlina Coscolluela y Belleza dies.

FIFTH
(a) Should Jorge Rabadilla die, his heir to whom he shall give Lot No. 1392 of the
Bacolod Cadastre, covered by Transfer Certificate of Title No. RT-4002 (10492), shall have
the obligation to still give yearly, the sugar as specified in the Fourth paragraph of his
testament, to Maria Marlina Coscolluela y Belleza on the month of December of each year.
SIXTH
I command, in this my addition (Codicil) that the Lot No. 1392, in the event that the one
to whom I have left and bequeathed, and his heir shall later sell, lease, mortgage this said
Lot, the buyer, lessee, mortgagee, shall have also the obligation to respect and deliver yearly
ONE HUNDRED (100) piculs of sugar to Maria Marlina Coscolluela y Belleza, on each
month of December, SEVENTY FIVE (75) piculs of Export and TWENTY FIVE (25) piculs
of Domestic, until Maria Marlina shall die, lastly should the buyer, lessee or the mortgagee
of this lot, not have respected my command in this my addition (Codicil), Maria Marlina
Coscolluela y Belleza, shall immediately seize this Lot No. 1392 from my heir and the
latters heirs, and shall turn it over to my near desendants, (sic) and the latter shall then
have the obligation to give the ONE HUNDRED (100) piculs of sugar until Maria Marlina
shall die. I further command in this my addition (Codicil) that my heir and his heirs of this
Lot No. 1392, that they will obey and follow that should they decide to sell, lease, mortgage,
they cannot negotiate with others than my near descendants and my sister.
4

Pursuant to the same Codicil, Lot No. 1392 was transferred to the deceased, Dr.
Jorge Rabadilla, and Transfer Certificate of Title No. 44498 thereto issued in his
name.
Dr. Jorge Rabadilla died in 1983 and was survived by his wife Rufina and
children Johnny (petitioner), Aurora, Ofelia and Zenaida, all surnamed Rabadilla.
On August 21, 1989, Maria Marlena Coscolluela y Belleza Villacarlos brought a
complaint, docketed as Civil Case No. 5588, before Branch 52 of the Regional Trial
Court in Bacolod City, against the above-mentioned heirs of Dr. Jorge Rabadilla, to
enforce the provisions of subject Codicil. The Complaint alleged that the defendantheirs violated the conditions of the Codicil, in that:
1. 1.Lot No. 1392 was mortgaged to the Philippine National Bank and the Republic
Planters Bank in disregard of the testatrixs specific instruction to sell, lease, or
mortgage only to the near descendants and sister of the testatrix.

2. 2.Defendant-heirs failed to comply with their obligation to deliver one hundred (100)

piculs of sugar (75 piculs export sugar and 25 piculs domestic sugar) to plaintiff
Maria Marlena Coscolluela y Belleza from sugar crop years 1985 up to the filing of
the complaint as mandated by the Codicil, despite repeated demands for
compliance.

1. 3.The banks failed to comply with the 6th paragraph of the Codicil which provided
that in case of the sale, lease, or mortgage of the property, the buyer, lessee, or
mortgagee shall likewise have the obligation to deliver 100 piculs of sugar per crop
year to herein private respondent.

The plaintiff then prayed that judgment be rendered ordering defendant-heirs to

reconvey/return-Lot No. 1392 to the surviving heirs of the Aleja Belleza, the
cancellation of TCT No. 44498 in the name of the deceased, Dr. Jorge Rabadilla, and
the issuance of a new Certificate of title in the names of the surviving heirs of the
late Aleja Belleza.
On February 26, 1990, the defendant-heirs were declared in default but on March
28, 1990 the Order of Default was lifted, with respect to defendant Johnny S.
Rabadilla, who filed his Answer, accordingly.
During the pre-trial, the parties admitted that:
On November 15, 1998, the plaintiff (private respondent) and a Certain Alan
Azurin, son-in-law of the herein petitioner who was lessee of the property and acting
as attorney-in-fact of defendant-heirs, arrived at an amicable settlement and
entered into a Memorandum of Agreement on the obligation to deliver one hundred
piculs of sugar, to the following effect:
That for crop year 1988-89, the annuity mentioned in Entry No. 49074 of TCT No. 44489
will be delivered not later than January of 1989, more specifically, to wit:
75 piculs of A sugar, and 25 piculs of B sugar, or then existing in any of our names, Mary Rose
Rabadilla y Azurin or Alan Azurin, during December of each sugar crop year, in Azucar Sugar
Central; and, this is considered compliance of the annuity as mentioned, and in the same manner
will compliance of the annuity be in the next succeeding crop years.

That the annuity above stated for crop year 1985-86, 1986-87, and 1987-88, will be
complied in cash equivalent of the number of piculs as mentioned therein and which is as
herein agreed upon, taking into consideration the composite price of sugar during each

sugar crop year, which is in the total amount of ONE HUNDRED FIVE THOUSAND
PESOS (P105,000.00).
That the above-mentioned amount will be paid or delivered on a staggered cash
installment, payable on or before the end of December of every sugar crop year, to wit:
For 1985-86, TWENTY SIX THOUSAND TWO HUNDRED FIFTY (P26,250.00) Pesos,
payable on or before December of crop year 1988-89;
For 1986-87, TWENTY SIX THOUSAND TWO HUNDRED FIFTY (P26,250.00) Pesos,
payable on or before December of crop year 1989-90;
For 1987-88, TWENTY SIX THOUSAND TWO HUNDRED FIFTY (P26,250.00) Pesos,
payable on or before December of crop year 1990-91; and
For 1988-89, TWENTY SIX THOUSAND TWO HUNDRED FIFTY (P26,250.00) Pesos,
payable on or before December of crop year 1991-92.
5

However, there was no compliance with the aforesaid Memorandum of Agreement

except for a partial delivery of 50.80 piculs of sugar corresponding to sugar crop year
1988-1989.
On July 22, 1991, the Regional Trial Court came out with a decision, dismissing
the complaint and disposing as follows:
WHEREFORE, in the light of the aforegoing findings, the Court finds that the action is
prematurely filed as no cause of action against the defendants has as yet arose in favor of
plaintiff. While there maybe the non-performance of the command as mandated exaction
from them simply because they are the children of Jorge Rabadilla, the title holder/owner of
the lot in question, does not warrant the filing of the present complaint. The remedy at bar
must fall. Incidentally, being in the category as creditor of the left estate, it is opined that
plaintiff may initiate the intestate proceedings, if only to establish the heirs of Jorge
Rabadilla and in order to give full meaning and semblance to her claim under the Codicil.
In the light of the aforegoing findings, the Complaint being prematurely filed is
DISMISSED without prejudice.
SO ORDERED.

On appeal by plaintiff, the First Division of the Court of Appeals reversed the
decision of the trial court; ratiocinating and ordering thus:
Therefore, the evidence on record having established plaintiff-appellants right to receive
100 piculs of sugar annually out of the produce of Lot No. 1392; defendants-appellees
obligation under Aleja Bellezas codicil, as heirs of the modal heir, Jorge Rabadilla, to
deliver such amount of sugar to plaintiff-appellant; defendants-appellees admitted noncompliance with said obligation since 1985; and, the punitive consequences enjoined by both
the codicil and the Civil Code, of seizure of Lot No. 1392 and its reversion to the estate of
Aleja Belleza in case of such non-compliance, this Court deems it proper to order the
reconveyance of title over Lot No. 1392 from the estates of Jorge Rabadilla to the estate of
Aleja Belleza. However, plaintiff-appellant must institute separate proceedings to re-open
Aleja Bellezas estate, secure the appointment of an administrator, and distribute Lot No.
1392 to Aleja Bellezas legal heirs in order to enforce her right, reserved to her by the
codicil, to receive her legacy of 100 piculs of sugar per year out of the produce of Lot No.
1392 until she dies.
Accordingly, the decision appealed from is SET ASIDE and another one entered ordering
defendants-appellees, as heirs of Jorge Rabadilla, to reconvey title over Lot No. 1392,
together with its fruits and interests, to the estate of Aleja Belleza.
SO ORDERED.

Dissatisfied with the aforesaid disposition by the Court of Appeals, petitioner found
his way to this Court via the present petition, contending that the Court of Appeals
erred in ordering the reversion of Lot 1392 to the estate of the testatrix Aleja
Belleza on the basis of paragraph 6 of the Codicil, and in ruling that the
testamentary institution of Dr. Jorge Rabadilla is a modal institution within the
purview of Article 882 of the New Civil Code.
The petition is not impressed with merit.
Petitioner contends that the Court of Appeals erred in resolving the appeal in
accordance with Article 882 of the New Civil Code on modal institutions and in
deviating from the sole issue raised which is the absence or prematurity of the cause
of action. Petitioner maintains that Article 882 does not find application as there
was no modal institution and the testatrix intended a mere simple substitutioni.e.
the instituted heir, Dr. Jorge Rabadilla, was to be substituted by the testatrixs
near descendants should the obligation to deliver the fruits to herein private

respondent be not complied with. And since the testatrix died single and without
issue, there can be no valid substitution and such testamentary provision cannot be
given any effect.
The petitioner theorizes further that there can be no valid substitution for the
reason that the substituted heirs are not definite, as the substituted heirs are
merely referred to as near descendants without a definite identity or reference as
to who are the near descendants and therefore, under Articles 843 and 845 of the
New Civil Code, the substitution should be deemed as not written.
8

The contentions of petitioner are untenable. Contrary to his supposition that the
Court of Appeals deviated from the issue posed before it, which was the propriety of
the dismissal of the complaint on the ground of prematurity of cause of action, there
was no such deviation. The Court of Appeals found that the private respondent had
a cause of action against the petitioner. The disquisition made on modal institution
was, precisely, to stress that the private respondent had a legally demandable right
against the petitioner pursuant to subject Codicil; on which issue the Court of
Appeals ruled in accordance with law.
It is a general rule under the law on succession that successional rights are
transmitted from the moment of death of the decedent and compulsory heirs are
called to succeed by operation of law. The legitimate children and descendants, in
relation to their legitimate parents, and the widow or widower, are compulsory
heirs. Thus, the petitioner, his mother and sisters, as compulsory heirs of the
instituted heir, Dr. Jorge Rabadilla, succeeded the latter by operation of law,
without need of further proceedings, and the successional rights were transmitted
to them from the moment of death of the decedent, Dr. Jorge Rabadilla.
10

11

Under Article 776 of the New Civil Code, inheritance includes all the property,
rights and obligations of a person, not extinguished by his death. Conformably,
whatever rights Dr. Jorge Rabadilla had by virtue of subject Codicil were
transmitted to his forced heirs, at the time of his death. And since obligations not
extinguished by death also form part of the estate of the decedent; corollarily, the
obligations imposed by the Codicil on the deceased Dr. Jorge Rabadilla, were
likewise transmitted to his compulsory heirs upon his death.

In the said Codicil, testatrix Aleja Belleza devised Lot No. 1392 to Dr. Jorge
Rabadilla, subject to the condition that the usufruct thereof would be delivered to
the herein private respondent every year. Upon the death of Dr. Jorge Rabadilla, his
compulsory heirs succeeded to his rights and title over the said property, and they
also assumed his (decedents) obligation to deliver the fruits of the lot involved to
herein private respondent. Such obligation of the instituted heir reciprocally
corresponds to the right of private respondent over the usufruct, the fulfillment or
performance of which is now being demanded by the latter through the institution
of the case at bar. Therefore, private respondent has a cause of action against
petitioner and the trial court erred in dismissing the complaint below.
Petitioner also theorizes that Article 882 of the New Civil Code on modal
institutions is not applicable because what the testatrix intended was a substitution
Dr. Jorge Rabadilla was to be substituted by the testatrixs near descendants
should there be noncompliance with the obligation to deliver the piculs of sugar to
private respondent.
Again, the contention is without merit.
Substitution is the designation by the testator of a person or persons to take the
place of the heir or heirs first instituted. Under substitutions in general, the testator
may either (1) provide for the designation of another heir to whom the property
shall pass in case the original heir should die before him/her, renounce the
inheritance or be incapacitated to inherit, as in a simple substitution, or (2) leave
his/her property to one person with the express charge that it be transmitted
subsequently to another or others, as in a fideicommissary substitution. The Codicil
sued upon contemplates neither of the two.
12

13

In simple substitutions, the second heir takes the inheritance in default of the
first heir by reason of incapacity, pre-decease or renunciation. In the case under
consideration, the provisions of subject Codicil do not provide that should Dr. Jorge
Rabadilla default due to predecease, incapacity or renunciation, the testatrixs near
descendants would substitute him. What the Codicil provides is that, should Dr.
Jorge Rabadilla or his heirs not fulfill the conditions imposed in the Codicil, the
property referred to shall be seized and turned over to the testatrixs near
descendants.
14

Neither is there a fideicommissary substitution here and on this point, petitioner

is correct. In a fideicommissary substitution, the first heir is strictly mandated to
preserve the property and to transmit the same later to the second heir. In the case
under consideration, the instituted heir is in fact allowed under the Codicil to
alienate the property provided the negotiation is with the near descendants or the
sister of the testa-trix. Thus, a very important element of a fideicommissary
substitution is lacking; the obligation clearly imposing upon the first heir the
preservation of the property and its transmission to the second heir. Without this
obligation to preserve clearly imposed by the testator in his will, there is no
fideicommissary substitution. Also, the near descendants right to inherit from the
testatrix is not definite. The property will only pass to them should Dr. Jorge
Rabadilla or his heirs not fulfill the obligation to deliver part of the usufruct to
private respondent.
15

16

Another important element of a fideicommissary substitution is also missing

here. Under Article 863, the second heir or the fideicommissary to whom the
property is transmitted must not be beyond one degree from the first heir or the
fiduciary. A fideicommissary substitution is therefore, void if the first heir is not
related by first degree to the second heir. In the case under scrutiny, the near
descendants are not at all related to the instituted heir, Dr. Jorge Rabadilla.
17

The Court of Appeals erred not in ruling that the institution of Dr. Jorge
Rabadilla under subject Codicil is in the nature of a modal institution and therefore,
Article 882 of the New Civil Code is the provision of law in point. Articles 882 and
883 of the New Civil Code provide:
Art. 882. The statement of the object of the institution or the application of the property left
by the testator, or the charge imposed on him, shall not be considered as a condition unless
it appears that such was his intention.
That which has been left in this manner may be claimed at once provided that the
instituted heir or his heirs give security for compliance with the wishes of the testator and
for the return of anything he or they may receive, together with its fruits and interests, if he
or they should disregard this obligation.
Art. 883. When without the fault of the heir, an institution referred to in the preceding
article cannot take effect in the exact manner stated by the testator, it shall be complied
with in a manner most analogous to and in conformity with his wishes.

The institution of an heir in the manner prescribed in Article 882 is what is known
in the law of succession as aninstitution sub modo or a modal institution. In a modal
institution, the testator states (1) the object of the institution, (2) the purpose or
application of the property left by the testator, or (3) the charge imposed by the
testator upon the heir. A mode imposes an obligation upon the heir or legatee but
it does not affect the efficacy of his rights to the succession. On the other hand, in a
conditional testamentary disposition, the condition must happen or be fulfilled in
order for the heir to be entitled to succeed the testator. The condition suspends but
does not obligate; and the mode obligates but does not suspend. To some extent, it
is similar to a resolutory condition.
18

19

20

21

From the provisions of the Codicil litigated upon, it can be gleaned unerringly
that the testatrix intended that subject property be inherited by Dr. Jorge
Rabadilla. It is likewise clearly worded that the testatrix imposed an obligation on
the said instituted heir and his successors-in-interest to deliver one hundred piculs
of sugar to the herein private respondent, Marlena Coscolluela Belleza, during the
lifetime of the latter. However, the testatrix did not make Dr. Jorge Rabadillas
inheritance and the effectivity of his institution as a devisee, dependent on the
performance of the said obligation. It is clear, though, that should the obligation be
not complied with, the property shall be turned over to the testatrixs near
descendants. The manner of institution of Dr. Jorge Rabadilla under subject Codicil
is evidently modal in nature because it imposes a charge upon the instituted heir
without, however, affecting the efficacy of such institution.
Then too, since testamentary dispositions are generally acts of liberality, an
obligation imposed upon the heir should not be considered a condition unless it
clearly appears from the Will itself that such was the intention of the testator. In
case of doubt, the institution should be considered as modal and not conditional.
22

Neither is there tenability in the other contention of petitioner that the private
respondent has only a right of usufruct but not the right to seize the property itself
from the instituted heir because the right to seize was expressly limited to
violations by the buyer, lessee or mortgagee.
In the interpretation of Wills, when an uncertainty arises on the face of the Will,
as to the application of any of its provisions, the testators intention is to be
ascertained from the words of the Will, taking into consideration the circumstances

under which it was made. Such construction as will sustain and uphold the Will in
all its parts must be adopted.
23

24

Subject Codicil provides that the instituted heir is under obligation to deliver
One Hundred (100) piculs of sugar yearly to Marlena Belleza Coscuella. Such
obligation is imposed on the instituted heir, Dr. Jorge Rabadilla, his heirs, and their
buyer, lessee, or mortgagee should they sell, lease, mortgage or otherwise negotiate
the property involved. The Codicil further provides that in the event that the
obligation to deliver the sugar is not respected, Marlena Belleza Coscuella shall
seize the property and turn it over to the testatrixs near descendants. The nonperformance of the said obligation is thus with the sanction of seizure of the
property and reversion thereof to the testatrixs near descendants. Since the said
obligation is clearly imposed by the testatrix, not only on the instituted heir but also
on his successors-in-interest, the sanction imposed by the testatrix in case of nonfulfillment of said obligation should equally apply to the instituted heir and his
successors-in-interest.
Similarly unsustainable is petitioners submission that by virtue of the amicable
settlement, the said obligation imposed by the Codicil has been assumed by the
lessee, and whatever obligation petitioner had become the obligation of the lessee;
that petitioner is deemed to have made a substantial and constructive compliance of
his obligation through the consummated settlement between the lessee and the
private respondent, and having consummated a settlement with the petitioner, the
recourse of the private respondent is the fulfillment of the obligation under the
amicable settlement and not the seizure of subject property.
Suffice it to state that a Will is a personal, solemn, revocable and free act by
which a person disposes of his property, to take effect after his death. Since the Will
expresses the manner in which a person intends how his properties be disposed, the
wishes and desires of the testator must be strictly followed. Thus, a Will cannot be
the subject of a compromise agreement which would thereby defeat the very purpose
of making a Will.
25

WHEREFORE, the petition is hereby DISMISSED and the decision of the Court
of Appeals, dated December 23, 1993 in CA-G.R. No. CV-35555 AFFIRMED. No
pronouncement as to costs.

SO ORDERED.

Vitug.

Melo (Chairman), J., I concur as well in the separate opinion of Justice

Vitug, J., Please see separate(concurring in result) opinion.

Panganiban, J., I join the Separate Opinion of Justice Vitug.
Gonzaga-Reyes, J., No part.
SEPARATE OPINION
VITUG, J.:
By virtue of a codicil appended to her will, Aleja Belleza devised a 511, 856-square
meter parcel of land in Bacolod City, denominated Lot No. 1392 of the Bacolod
Cadastral Survey, to Jorge Ravadilla (predecessor-in-interest of petitioner), carrying
with it an obligation to deliver to private respondent, Maria Marlena Coscolluela y
Belleza, one hundred piculs of sugar per crop year during her lifetime. The portions
of the codicil, pertinent to the instant controversy, read:
1

FIRST
I give, leave and bequeath the following property owned by me to Dr. Jorge Rabadilla,
resident of 141 P. Villanueva, Pasay City:
1. (a)Lot No. 1392 of the Bacolod Cadastre, covered by Transfer Certificate of Title No.
RT-4002(10942), which is registered in my name according to the records of the
Register of Deeds of Negros Occidental.
2. (b)That should Jorge Rabadilla die ahead of me, the aforementioned property and
the rights which I shall set forth hereinbe
1.

xxx

low, shall be inherited and acknowledged by the children and spouse of Jorge
Rabadilla.
xxx

x x x.

FOURTH
(a) It is also my command, in this my addition (codicil), that should I die and Jorge
Rabadilla shall have already received the ownership of the said Lot No. 1392 of the Bacolod
Cadastre, covered by Transfer Certificate of Title No. RT4002(10942), and also at the time
that the lease of Balbinito Guanzon of the said lot shall expire, Jorge Rabadilla shall have
the obligation until he dies, every year to give to Maria Marlina Coscolluela y Belleza,
Seventy (75) (sic) piculs of Export sugar and Twenty Five (25) piculs of Domestic sugar,
until the said Maria Marlina Coscolluela y Belleza dies.
FIFTH
(a) Should Jorge Rabadilla die, his heir to whom he shall give Lot No. 1392 of the
Bacolod Cadastre, covered by Transfer Certificate of Title No. RT-4002(10942), shall have
the obligation to still give yearly, the sugar as specified in the Fourth paragraph of this
testament, to Maria Marlina Coscolluela y Belleza on the month of December of each year.
SIXTH
I command, in this my addition (Codicil) that the Lot No. 1392, in the event that the one
to whom I have left and bequeathed, and his heir shall later sell, lease, mortgage this said
Lot, the buyer, lessee, mortgagee, shall have also the obligation to respect and deliver yearly
ONE HUNDRED (100) piculs of sugar to Maria Marlina Coscolluela y Belleza, on each
month of December, SEVENTY FIVE (75) piculs of Export and TWENTY FIVE (25) piculs
of Domestic, until Maria Marlina shall die, lastly should the buyer, lessee, or the mortgagee
of this lot, not have respected my command in this my addition (Codicil), Maria Marlina
Coscolluela y Belleza, shall immediately seize this Lot No. 1392 from my heir and the
latters heirs, and shall turn it over to my near descendants, and the latter shall then have
the obligation to give the ONE HUNDRED (100) piculs of sugar until Maria Marlina shall
die. I further command in this my addition (Codicil) that my heir and his heirs of this Lot
No. 1392, that they will obey and follow that should they decide to sell, lease, mortgage,
they cannot negotiate with others than my near descendants and my sister.
2

Pursuant to the above provisions of the codicil, ownership of Lot No. 1392 was
transferred to Jorge Rabadilla and Transfer Certificate of Title No. T-44498 was
issued in his name.
Sometime in 1983, Jorge Rabadilla died, survived by his wife, Rufina, and their
children Johnny, Aurora, Ofelia and Zenaida.

On 21 August 1989, on account of the failure of the heirs of Jorge Rabadilla to

comply with the obligation under the codicil, private respondent filed an action,
docketed Civil Case No. 5588, against the Rabadilla heirs before the Regional Trial
Court, Branch 52, of Bacolod City for the reconveyance of Lot 1392 to the heirs of
Aleja Belleza and the cancellation of Transfer Certificate of Title No. 44498 covering
the property in the name of Jorge Rabadilla.
The trial court dismissed the complaint without prejudice. On appeal taken by
private respondent to the Court of Appeals, the appellate court set aside the
appealed decision and held:
4

Therefore, the evidence on record having established plaintiff-appellants right to receive

100 piculs of sugar annually out of the produce of Lot No. 1392; defendants-appellees
obligation under Aleja Bellezas codicil, as heirs of the modal heir, Jorge Rabadilla, to
deliver such amount of sugar to plaintiff-appellant; defendants-appellees admitted
noncompliance with said obligation since 1985; and, the punitive consequences enjoined by
both the codicil and the Civil Code, of seizure of Lot No. 1392 and its reversion to the estate
of Aleja Belleza in case of such non-compliance, this Court deems it proper to order the
reconveyance of title over Lot No. 1392 from the estate of Jorge Rabadilla to the estate of
Aleja Belleza. However, plaintiff-appellant must institute separate proceedings to re-open
Aleja Bellezas estate, secure the appointment of an administrator, and distribute Lot No.
1392 to Aleja Bellezas legal heirs in order to enforce her right, reserved to her by the
codicil, to receive her legacy of 100 piculs of sugar per year out of the produce of Lot No.
1392 until she dies.
Accordingly, the decision appealed from is SET ASIDE and another one entered
ordering defendants-appellees, as heirs of Jorge Rabadilla, to reconvey title over Lot No.
1392, together with its fruits and interests, to the estate of Aleja Belleza.
SO ORDERED.

Petitioner, in the instant petition for review, submits that the appellate court has
erred in: (1) ordering the reversion of Lot 1392 to the estate of Aleja Belleza on the
basis of paragraph six of the codicil, and (2) in ruling that the testamentary
institution of Dr. Jorge Rabadilla is amodal institution within the purview of Article
882 of the Civil Code. Additionally, he avers that respondent court has
improvidently deviated from the sole issue raised which is the prematurity of the
action before the courta quo. Upon the other hand, respondent would have this
Court sustain the assailed decision of the Court of Appeals contending that the

appellate court is completely justified in delving into the nature of the institution in
the codicil, the same having a direct significance on the issue of whether or not the
complaint before the trial court has been prematurely filed. Private respondent adds
that the institution in question is modal within the context of Article 882 of the Civil
Code which gives her the right to seize the subject property.
I agree with my colleagues that substitution is not here apropos. Substitution
is the appointment of another heir so that he may enter into the inheritance
in default of the heir originally instituted. Substitution is simple when the testator
designates one or more persons to substitute the heir or heirs instituted in case the
latter should die before him, or should not wish, or should be incapacitated to accept
the inheritance, and a substitution without a statement of the cases to which it
refers shall comprise all said three cases. There is no simple substitution that takes
place where the heir originally instituted is able to succeed. Fideicommissary
substitution, on the other hand, occurs when the fiduciary or first heir instituted is
entrusted with the obligation topreserve and to transmit to a second heirthe whole or
part of the inheritance. Every fideicommissary substitution should be expressly
made in order that it may be valid. The term fideicommissary substitution need
not, however, be used in the will; it is enough that there is a clear and unequivocal
statement that one shall enjoy usufructuary or other rights, short of naked
ownership or title, over certain property of the testator with the obligation to
preserve the property and to transmit it to a second heir. It is essential for the
validity of a fideicommissary substitution that both heirs are living and qualified to
succeed at the time of death by the testator and that the substitute does not go
beyond one degree from the heir originally instituted. The term one degree has
been the subject of varied interpretation. One view is to the effect that the term
means one transfer, citing the Supreme Tribunal of Spain and as advocated by
eminent civilists as Justices J.B.L. Reyes, R. Puno, E. Caguioa, and D. Jurado. In
Ramirez vs. Ramirez, decided on 15 February 1982, the Court, however, adopted the
literal view that one decree means relationship or generation as so advanced by
equally eminent writers Dr. A. Padilla, Justice E. Paras and Dr. A. Tolentino. In the
subsequent case of the Testate Estate case of Fr. Aranas, however, the Court
upheld the usufructuary right of theRoman Catholic Church under a legacy that
now renders doubtful the continued validity of the Ramirez doctrine.
6

10

11

12

13

The institution of Jorge Rabadilla in the Belleza codicil partook the nature of an
institution sub modo, rather than one of substitution, governed by the provisions of
Article 882 of the Civil Code. This law provides:
Art. 882. The statement of the object of the institution, or the application of the property
left by the testator, or the charge imposed by him, shall not be considered as a condition
unless it appears that such was his intention.
That which has been left in this manner may be claimed at once provided that the
instituted heir or his heirs give security for compliance with the wishes of the testator and
for the return of anything he or they may receive, together with its fruits and interests, if he
or they should disregard this obligation. (Emphasis supplied)

A mode is distinguished from a condition contemplated in the rules on succession in

that the latter dictates the efficacy, either in a suspensive or resolutory manner, of a
testamentary disposition while the former obligates the instituted heir to comply
with the mandate made by the testator but does not prevent the heir from at once
claiming the inheritance provided he gives a security to ensure compliance with the
will of the testator and the return of the thing received together with its fruits and
interests, should (the heir) disregard this obligation. The obligation imposed upon
the heir or legatee is deemed not to be a condition for his entry forthwith into the
inheritance unless a contrary intention of the testator is evident. In case of doubt,
the institution is considered modal, rather than conditional. Much of the variance in
the legal effects of the two classes, however, is now practically theoretical and
merely conceptual. Under the old Civil Code aninstitucion sub modo could be said
to be more akin to an institution sub demonstratione, or an expression of a wish or
suggestion of the testator that did not have any real obligatory force, that matter
being left instead to the discretion of the heir, i.e., whether to abide by it or not. The
amendatory provisions of the new Civil Code now hardly differentiates between the
principal effect of the non-compliance with the mode and that of the occurrence of a
resolutory condition expressed in the will. In both instances, the property must be
returned to the estate of the decedent to then pass on under the rules on intestacy.
14

15

ACCORDINGLY, I also vote for the dismissal of the instant petition.

Petition dismissed, judgment affirmed.

Note.A will is the testator speaking after his death. (Reyes vs. Court of
Appeals, 281 SCRA 277 [1997])
o0o

o. L-40789. February 27,1987.

INTESTATE ESTATE OF PETRA V. ROSALES. IRENEA C. ROSALES,

petitioner, vs. FORTUNATO
ROSALES,
MAGNA
ROSALES
ACEBES,
MACIKEQUEROX ROSALES and ANTONIO ROSALES, respondents.
Civil Law; Succession; A surviving spouse is not an intestate heir of his or her parentin-law.There is no provision in the Civil Code which states that a widow (surviving
spouse) is an intestate heir of her mother-in-law. The entire code is devoid of any provision
which entitles her to inherit from her mother-in-law either by her own right or by the right
of representation. The provisions of the Code which relate to the order of intestate
succession (Articles 978 to 1014) enumerate with meticulous exactitude the intestate heirs
of a decedent, with the State as the final intestate heir. The conspicuous absence of a

provision which makes a daughter-in-law an intestate heir of the deceased all the more
confirms our observation. If the legislature intended to make the surviving spouse an
intestate heir of the parent-in-law, it would have so provided in the Code.
Same; Same; Neither is a widow (surviving spouse) a compulsory heir of her parent-inlaw in accordance with the provisions of Article 887 of the Civil Code.The aforesaid
provision of law refers to the estate of the deceased spouse in which case the surviving
spouse (widow or widower) is a compulsory heir. It does not apply to the estate of a parent
in law. Indeed, the surviving spouse is considered a third person as regards the estate of the
parent-in-law. We had occasion to make this observation inLachenal v. Salas, 71 SCRA 262;
265, L-42257, June 14, 1976, to wit: "We hold that the title to the fishing boat should be
determined in Civil Case No. 3597 (not in the intestate proceeding) because it affects the
lessee thereof, Lope L. Leoncio, the decedent'sson-in-law, who, although married to his
daughter or compulsory heir, is nevertheless a third person with respect to his estate. x x x."

PETITION to review the orders of the Court of First Instance of Cebu.

The facts are stated in the opinion of the Court.
Jose B. Echaves for petitioner.
Jose A. Binghay and Paul G. Gorres for respondents.
GANCAYCO, J.:
In this Petition for Review of two (2) Orders of the Court of First Instance of Cebu
the question raised is whether the widow whose husband pre-deceased his mother
can inherit from the latter, her mother-in-law.
It appears from the record of the case that on February 26, 1971, Mrs. Petra V.
Rosales, a resident of Cebu City, died intestate. She was survived by her husband
Fortunato T. Rosales and their two (2) children Magna Rosales Acebes and Antonio
Rosales. Another child, Carterio Rosales, pre-deceased her, leaving behind a child,
Macikequerox Rosales, and his widow Irenea C. Rosales, the herein petitioner. The
estate of the deceased has an estimated gross value of about Thirty Thousand Pesos
(P30,000.00).
On July 10, 1971, Magna Rosales Acebes instituted the proceedings for the
settlement of the estate of the deceased in the Court of First Instance of Cebu. The

case was docketed as Special Proceedings No. 3204-R. Thereafter, the trial court
appointed Magna Rosales Acebes administratrix of the said estate.
In the course of the intestate proceedings, the trial court issued an Order dated
June 16,1972 declaring the following individuals the legal heirs of the deceased and
prescribing their respective share of the estate
Fortunato T. Rosales (husband), ; Magna R. Acebes (daughter), ; Macikequerox Rosales,
; and Antonio Rosales (son), .

This declaration was reiterated by the trial court in its Order dated February
4,1975.
These Orders notwithstanding, Irenea Rosales insisted in getting a share of the
estate in her capacity as the surviving spouse of the late Carterio Rosales, son of the
deceased, claiming that she is a compulsory heir of her mother-in-law together with
her son, Macikequerox Rosales.
Thus, Irenea Rosales sought the reconsideration of the aforementioned Orders.
The trial court denied her plea. Hence this petition.
In sum, the petitioner poses two (2) questions for Our resolution. Firstis a
widow (surviving spouse) an intestate heir of her mother-in-law? Secondare the
Orders of the trial court which excluded the widow from getting a share of the estate
in question final as against the said widow?
Our answer to the first question is in the negative.
Intestate or legal heirs are classified into two (2) groups, namely, those who
inherit by their own right, and those who inherit by the right of
representation. Restated, an intestate heir can only inherit either by his own right,
as in the order of intestate succession provided for in the Civil Code, or by the right
of representation provided for in Article 981 of the same law. The relevant
provisions of the Civil Code are:
1

"Art. 980. The children of the deceased shall always inherit from him in their own right,
dividing the inheritance in equal shares."

"Art. 981. Should children of the deceased and descendants of other children who are
dead, survive, the former shall inherit in their own right, and the latter by right of
representation."
"Art. 982. The grandchildren and other descendants shall inherit by right of
representation, and if any one of them should have died, leaving several heirs, the portion
pertaining to him shall be divided among the latter in equal portions."
"Art. 999. When the widow or widower survives with legitimate children or their
descendants and illegitimate children or their descendants, whether legitimate or
illegitimate, such widow or widower shall be entitled to the same share as that of a
legitimate child."

There is no provision in the Civil Code which states that a widow (surviving spouse)
is an intestate heir of her mother-inlaw. The entire Code is devoid of any provision
which entitles her to inherit from her mother-in-law either by her own right or by
the right of representation. The provisions of the Code which relate to the order of
intestate succession (Articles 978 to 1014) enumerate with meticulous exactitude
the intestate heirs of a decedent, with the State as the final intestate heir. The
conspicuous absence of a provision which makes a daughter-in-law an intestate heir
of the deceased all the more confirms Our observation. If the legislature intended to
make the surviving spouse an intestate heir of the parent-in-law, it would have so
provided in the Code.
Petitioner argues that she is a compulsory heir in accordance with the provisions
of Article 887 of the Civil Code which provides that:
"Art. 887. The following are compulsory heirs:
1. (1)Legitimate children and descendants, with respect to their legitimate parents and
ascendants;
2. (2)In default of the foregoing, legitimate parents and ascendants, with respect to
their legitimate children and descendants;
3. (3)The widow or widower;
4. (4)Acknowledged natural children, and natural children by legal fiction;
5. (5)Other illegitimate children referred to in article 287;

Compulsory heirs mentioned in Nos. 3, 4 and 5 are not excluded by those in Nos. 1 and 2;
neither do they exclude one another.
In all cases of illegitimate children, their filiation must be duly proved.
The father or mother of illegitimate children of the three classes mentioned, shall inherit
from them in the manner and to the extent established by this Code."

The aforesaid provision of law refers to the estate of the deceased spouse in which
case the surviving spouse (widow or widower) is a compulsory heir. It does not apply
to the estate of a parent-in-law.
3

Indeed, the surviving spouse is considered a third person as regards the estate of
the parent-in-law. We had occasion to make this observation inLachenal v. Salas, to
wit:
4

"We hold that the title to the fishing boat should be determined in Civil Case No. 3597 (not
in the intestate proceeding) because it affects the lessee thereof, Lope L. Leoncio, the
decedent's son-in-law, who, although married to his daughter or compulsory heir, is
nevertheless a third person with respect to his estate. x x x." (Emphasis supplied).

By the same token, the provision of Article 999 of the Civil Code aforecited does not
support petitioner's claim. A careful examination of the said Article confirms that
the estate contemplated therein is the estate of the deceased spouse. The estate
which is the subject matter of the intestate estate proceedings in this case is that of
the deceased Petra V. Rosales, the mother-in-law of the petitioner. It is from the
estate of Petra V. Rosales that Macikequerox Rosales draws a share of the
inheritance by the right of representation as provided by Article 981 of the Code.
The essence and nature of the right of representation is explained by Articles 970
and 971 of the Civil Code, viz
"Art. 970. Representation is a right created by fiction of law, by virtue of which the
representative is raised to the place and the degree of the person represented, and acquires
the rights which the latter would have if he were living or if he could have inherited.
"Art. 971. The representative is called to the succession by the law and not by the person
represented. The representative does not succeed the person represented but the one whom
the person represented would have succeeded." (Emphasis supplied.)

Article 971 explicitly declares that Macikequerox Rosales is called to succession by

law because of his blood relationship. He does not succeed his father, Carterio
Rosales (the person represented) who pre-deceased his grandmother, Petra Rosales,
but the latter whom his father would have succeeded. Petitioner cannot assert the
same right of representation as she has no filiation by blood with her mother-in-law.
Petitioner however contends that at the time of the death of her husband
Carterio Rosales he had an inchoate or contingent right to the properties of Petra
Rosales as compulsory heir. Be that as it may, said right of her husband was
extinguished by his death that is why it is their son Macikequerox Rosales who
succeeded from Petra Rosales by right of representation. He did not succeed from
his deceased father, Carterio Rosales.
On the basis of the foregoing observations and conclusions, We find it
unnecessary to pass upon the second question posed by the petitioner.
Accordingly, it is Our considered opinion, and We so hold, that a surviving spouse
is not an intestate heir of his or her parent-in-law.
WHEREFORE, in view of the foregoing, the Petition is hereby DENIED for lack
of merit, with costs against the petitioner. Let this case be remanded to the trial
court for further proceedings.
SO ORDERED.
Yap (Chairman), Narvasa,Melencio-Herrera, Cruz, Feliciano andSarmiento,
JJ., concur.
Petition denied.
o0o

No. L-30977. January 31, 1972.

CARMEN LAPUZ SY, represented by her substitute MACARIO LAPUZ, petitionerappellant, vs. EUFEMIO S. EUFEMIO alias EUFEMIO SY UY, respondentappellee.
Persons and family relations: Legal separation; Action abated by death of one of the
spouses before final decree.An action for legal separation which involves nothing more
than bed-and-board separation of the spouses is purely personal. The Civil Code of the
Philippines recognizes this in its Article 100, by allowing only the innocent spouse (and no
one else) to claim legal separation; and in its Article 108, by providing that the spouses can,
by their reconciliation, stop or abate the proceedings and even rescind a decree of legal
separation already rendered. Being personal in character, it follows that the death of the
action itselfactio personalis moritur cum persona.
Same; Same; Same; Even if action involves property rights; Article 106 of the Civil Code
explained.A review of the result ing changes in property relations between spouses shows
that they are solely the effect of the decree of legal separation: hence, they can not survive
the death of the plaintiff if it occurs prior to the decree. Article 107 makes it apparent that
the right to the dissolution of the conjugal partnership of gains (or of the absolute
community of property ), the loss of right by the offending spouse to any share of the profits
earned by the partnership or community , or his disqualification to inherit by intestacy from
the innocent spouse as well as the revocation of testamentary provisions in favor of the
offending spouse made by the innocent one, are all rights and disabilities that, by the very
terms if the Civil Code article, are vested exclusively in the persons of the spouses; and by
their nature and intent, such claims and disabilities are difficult to conceive as assignable
or transmissible.
Same; Same; Same; Same; Nature of property rights.These rights are mere effects of
a decree of separation, their source being the decree itself; without the decree such rights do
not come into existence, so that before the finality of a decree, these claims are merely
rights in expectation. If death supervenes during the pendency of the action, no decree can
be forthcoming, death producing a more radical and definitive separation; and the expected
consequential rights and claims would necessarily remain unborn.

Same; Declaration of nullity of marriage;Effect of death of one of the spouses.Such

action became moot and academic upon the death of one of the spouses, and there could be
no further interest in continuing the same after her demise, that automatically dissolved
the questioned union. Any property rights acquired by either party as a result of Article 144
of the Civil Code of the Philippines could be resolved and determined in a proper action for
partition by either the surviving spouse or by the heirs of the deceased spouse.
Remedial law; Substitution of the deceased party in an action for legal separation
involving property rights.A claim to the rights provided for by Article 106 of the Civil
Code is not a claim that is not thereby extinguished after a party dies, under Section 17,
Rule 3, of the Rules of Court, to warrant a continuation of the action through a substitute of
the deceased party. The same result flows from a consideration of the enumeration of the
actions that survive for or against administrators in Section 1, Rule 87, of the Revised Rules
of Court, Neither actions for legal separation or for annulment of marriage can be deemed
fairly included in the enumeration.

PETITION for review by certiorari of an order of the Juvenile and Domestic

Relations Court of Manila.
The facts are stated in the opinion of the Court.
Jose W. Diokno for petitioner-appellant.
D. G. Eufemio for respondent-appellee.
REYES, J.B.L., J.:
Petition, filed after the effectivity of Republic Act 5440, for review by certiorari of an
order, dated 29 July 1969, of the Juvenile and Domestic Relations Court of Manila,
in its Civil Case No. 20387, dismissing said case for legal separation on the ground
that the death of the therein plaintiff, Carmen O. Lapuz Sy, which occurred during
the pendency of the case, abated the cause of action as well as the action itself. The
dismissal order was issued over the objection of Macario Lapuz, the heir of the
deceased plaintiff (and petitioner herein) who sought to substitute the deceased and
to have the case prosecuted to final judgment.
On 18 August 1953, Carmen O. Lapuz Sy filed a petition for legal separation
against Eufemio S. Eufemio, alleging, in the main, that they were married civilly on
21 September 1934 and canonically on 30 September 1934; that they had lived

together as husband and wife continuously until 1943 when her husband abandoned
her; that they had no child; that they acquired properties during their marriage;
and that she discovered her husband cohabiting with a Chinese woman named Go
Hiok at 1319 Sisa Street, Manila, on or about March 1949. She prayed for the
issuance of a decree of legal separation, which, among others, would order that the
defendant Eufemio S. Eufemio should be deprived of his share of the conjugal
partnership profits.
In his second amended answer to the petition, herein respondent Eufemio S.
Eufemio alleged affirmative and special defenses, and, along with several other
claims involving money and other properties, counterclaimed for the declaration of
nullity ab initio of his marriage with Carmen O. Lapuz Sy, on the grou nd of his
prior and subsisting marriage, celebrated according to Chinese law and customs,
with one Go Hiok, alias Ngo Hiok.
Issues having been joined, trial proceeded and the parties adduced their
respective evidence. But before the trial could be completed (the respondent was
already scheduled to present surrebuttal evidence on 9 and 18 June 1969),
petitioner Carmen O. Lapuz Sy died in a vehicular accident on 31 May 1969.
Counsel for petitioner duly notified the court of her death.
On 9 June 1969, respondent Eufemio moved to dismiss the petition for legal
separation on two (2) grounds, namely: that the petition for legal separation was
filed beyond the one-year period provided for in Article 102 of the Civil Code; and
that the death of Carmen abated the action for legal separation.
1

On 26 June 1969 , counsel for deceased petitioner moved to substitute the

deceased Carmen by her father, Macario Lapuz. Counsel for Eufemio opposed the
motion.
On 29 July 1969, the court issued the order under review, dismissing the case. In
the body of the order, the court stated that the motion to dismiss and the motion for
substitution had to be resolved on the question of whether or not the plaintiffs cause
of action has survived, which the court resolved in the negative. Petitioners moved
to reconsider but the motion was denied on 15 September 1969.
2

After first securing an extension of time to file a petition for review of the order of
dismissal issued by the juvenile and domestic relations court, the petitioner filed the

present petition on 14 October 1969. The same was given due course and answer
thereto was filed by respondent, who prayed for the affirmance of the said order.
3

Although the defendant below, the herein respondent Eufemio S. Eufemio, filed
counterclaims, he did not pursue them after the court below dismissed the case. He
acquiesced in the dismissal of said counterclaims by praying for the affirmance of
the order that dismissed not only the petition for legal separation but also his
counterclaim to declare the Eufemio-Lapuz marriage to be null and void ab initio.
But petitioner Carmen O. Lapuz Sy (through her self-assumed substitutefor the
lower court did not act on the motion for substitution) stated the principal issue to
be as follows
When an action for legal separation is converted by the counterclaim into one for a
declaration of nullity of a marriage, does the death of a party abate the proceedings?

The issue as framed by petitioner injects into it a supposed conversion of a legal

separation suit to one for declaration of nullity of a marriage, which is without
basis, for even petitioner asserted that the respondent has acquiesced to the
dismissal of his counterclaim (Petitioners Brief, page 22). Not only this. The
petition for legal separation and the counterclaim to declare the nullity of the self
same marriage can stand independent and separate adjudication. They are not
inseparable nor was the action for legal separation converted into one for a
declaration of nullity by the counterclaim, for legal separation presupposes a valid
marriage, while the petition for nullity has a voidable marriage as a precondition.
The first real issue in this case is: Does the death of the plaintiff before final
decree, in an action for legal separation, abate the action? If it does, will abatement
also apply if the action involves property rights?
An action for legal separation which involves nothing more than the bed-andboard separation of the spouses (there being no absolute divorce in this jurisdiction)
is purely personal. The Civil Code of the Philippines recognizes this in its Article
100, by allowing only the innocent spouse (and no one else) to claim legal separation;
and in its Article 108, by providing that the spouses can, by their reconciliation, stop
or abate the proceedings and even rescind a decree of legal separation already
rendered. Being personal in character, it follows that the death of one party to the
action causes the death of the action itselfactio personalis moritur cum persona.

. . . . . . . . . . When one of the spouses is dead, there is no need for divorce, because the
marriage is dissolved. The heirs cannot even continue the suit, if the death of the spouse
takes place during the course of the suit (Article 244, Section 3). The action is absolutely
dead (Cass., July 27, 1871, D. 71. 1. 81; Cass. req., May 8, 1933, D, H, 1933, 332.
4

Marriage is a personal relation or status, created under the sanction of law, and an
action for divorce is a proceeding brought for the purpose of effecting a dissolution of that
relation. The action is one of a personal nature. In the absence of a statute to the contrary,
the death of one of the parties to such action abates the action, for the reason that death
has settled the question of separation beyond all controversy and deprived the court of
jurisdiction, both over the persons of the parties to the action and of the subject-matter of
the action itself. For this reason the courts are almost unanimous in holding that the death
of either party to a divorce proceeding, before final decree, abates the action. 1 Corpus
Juris, 208; Wren v. Moss, 2 Gilman, 72; Danforth v. Danforth, 111 Ill. 236; Matter of
Grandall, 196 N. Y. 127, 89 N. E. 578; 134 Am St. Rep. 830; 17 Ann. Cas. 874; Wilcon v.
Wilson, 73 Mich, 620, 41 N.W. 817; Strickland v. Strickland, 80 Ark. 452, 97 S. W.
659; McCurley v. McCurley, 60 Md. 185. 45 Am. Rep. 717; Begbie v. Begbie, 128 Cal. 155, 60
Pac. 667, 49 L.R.A. 141.
5

The same rule is true of causes of action and suits for separation and maintenance
(Johnson vs. Bates, Ark. 101 SW 412; 1 Corpus Juris 208).
A review of the resulting changes in property relations between spouses shows
that they are solely the effect of the decree of legal separation; hence, they can not
survive the death of the plaintiff if it o ccurs prior to the decree. On the point,
Article 106 of the Civil Code provides:
Art. 106. The decree of legal separation shall have the following effects:
1. (1)The spouses shall be entitled to live separately from each other, but the marriage
bonds shall not be severed;
2. (2)The conjugal partnership of grains or the absolute conjugal community of
property shall be dissolved and liquidated, but the offending spouse shall have no
right to any share of the profits earned by the partnership or community , without
prejudice to the provisions of article 176;
1. (3)The custody of the minor children shall be awarded to the innocent spouse,
unless otherwise directed by the court in the interest of said minors, for whom said
court may appoint a guardian;

2. (4)The offending spouse shall be disqualified from inheriting from the innocent
spouse by intestate succession. Moreover, provisions in favor of the offending spouse
made in the will of the innocent one shall be revoked by operation of
law. . . . . . . . . . . . . . . . . . . . . .

From this article it is apparent that the right to the dissolution of the conjugal
partnership of gains (or of the absolute community of property), the loss of right by
the offending spouse to any share of the profits earned by the partnership or
community, or his disqualification to inherit by intestacy from the innocent spouse
as well as the revocation of testamentary provisions in favor of the offending spouse
made by the innocent one, are all rights and disabilities that, by the very terms of
the Civil Code article, are vested exclusively in the persons of the spouses; and by
their nature and intent, such claims and disabilities are difficult to conceive as
assignable or transmissible. Hence, a claim to said rights is not a claim that is not
thereby extinguished after a party dies, under Section 17, Rule 3, of the Rules of
Court, to warrant continuation of the action through a substitute of the deceased
party.
Sec. 17. Death of party. After a party dies and the claim is not thereby extinguished, the
court shall order, upon proper notice, the legal representative of the deceased to appear and
to be substituted for the deceased, within a period of thirty (30) day s, or within such time
as may be granted. . . . . . . . . . . . . . . . . .

The same result flows from a consideration of the enumeration of the actions that
survive for or against administrators in Section 1, Rule 87, of the Revised Rules of
Court:
SECTION 1. Actions which may and which may not be brought against executor or
administrator. No action upon a claim for the recovery of money or debt or interest thereon
shall be commenced against the executor or administrator; but actions to recover real or
personal property, or an interest therein, from the estate, or to enforce a lien thereon, and
actions to recover damages for an injury to person or property, real or personal, may be
commenced against him.

Neither actions for legal separation or for annulment of marriage can be deemed
fairly included in the enumeration.
A further reason why an action for legal separation is abated by the death of the
plaintiff, even if property rights are involved, is that these rights are mere effects of

a decree of separation, their source being the decree itself; without the decree such
rights do not come in to existence, so that before the finality of a decree, these
claims are merely rights in expectation. If death supervenes during the pendency of
the action, no decree can be forthcoming, death producing a more radical and
definitive separation; and the expected consequential rights and claims would
necessarily remain unborn.
As to the petition of respondent-appellee Eufemio for a declaration of nullity ab
initio of his marriage to Carmen Lapuz, it is apparent that such action became moot
and academic upon the death of the latter, and there could be no further interest in
continuing the same after her demise, that automatically dissolved the questioned
union. Any property rights acquired by either party as a result of Article 144 of the
Civil Code of the Philippines could be resolved and determined in a proper action
for partition by either the appellee or by the heirs of the appellant.
6

In fact, even if the bigamous marriage had not been void ab initio but only
voidable under Article 83, paragraph 2, of the Civil Code, because the second
marriage had been contracted with the first wife having been an absentee for seven
consecutive years, or when she had been generally believed dead, still the action for
annulment became extinguished as soon as one of the three persons involved had
died, as provided in Article 87, paragraph 2, of the Code, requiring that the action
for annulment should be brought during the lifetime of any one of the parties
involved. And furthermore, the liquidation of any conjugal partnership that might
have resulted from such voidable marriage must be carried out in the testate or
intestate proceedings of the deceased spouse, as expressly provided in Section 2 of
the Revised Rule 73, and not in the annulment proceeding.
ACCORDINGLY, the appealed judgment of the Manila Court of Juvenile and
Domestic Relations is hereby affirmed. No special pronouncement as to costs.
Concepcion,
C.J., Makalintal,Zaldivar, Castro, Fernando, Teehankee,Barredo, Villamor and Mak
asiar, JJ. , concur.
Judgment affirmed.
Note.For a comprehensive treatment of jurisprudence on actions that do not
survive, see 11 SCRA 749.

G.R. No. 82233. March 22, 1990.

JOSE BARITUA and EDGAR BITANCOR, petitioners, vs.HONORABLE COURT

OF APPEALS, NICOLAS NACARIO and VICTORIA RONDA NACARIO,
respondents.
Civil Law; Succession; Surviving Spouse;Mere estrangement is not a legal ground for
the disqualification of a surviving spouse as an heir of the deceased spouse.It is patently
clear that the parents of the deceased succeed only when the latter dies without a
legitimate descendant. On the other hand, the surviving spouse concurs with all classes of
heirs. As it has been established that Bienvenido was married to Alicia and that they begot
a child, the private respondents are not successors-in-interest of Bienvenido; they are not
compulsory heirs. The petitioners therefore acted correctly in settling their obligation with
Alicia as the widow of Bienvenido and as the natural guardian of their lone child. This is so

even if Alicia had been estranged from Bienvenido. Mere estrangement is not a legal ground
for the disqualification of a surviving spouse as an heir of the deceased spouse.
Same; Same; Same; The purchase price of the damaged tricycle loaned to Bienvenido
(private respondents deceased son) and the latters funeral expenses shouldered by private
respondents are not liabilities of petitioners. They are but money claims against the estate of
private respondents deceased son.Neither could the private respondents, as alleged
creditors of Bienvenido, seek relief and compensation from the petitioners. While it may be
true that the private respondents loaned to Bienvenido the purchase price of the damaged
tricycle and shouldered the expenses for his funeral, the said purchase price and expenses
are but money claims against the estate of their deceased son. These money claims are not
the liabilities of the petitioners who, as we have said, had been released by the agreement of
the extra-judicial settlement they concluded with Alicia Baracena Vda. de Nacario, the
victims widow and heir, as well as the natural guardian of their child, her co-heir. As a
matter of fact, she executed a Release Of Claim in favor of the petitioners.

PETITION for certiorari to review the decision of the Court of Appeals, Chua, J.
The facts are stated in the opinion of the Court.
Domingo Lucenario for petitioners.
Ernesto A. Atienza for private respondents.
SARMIENTO, J.:
This petition for review on certiorari assails as erroneous and contrary to existing
relevant laws and applicable jurisprudence the decision of the Court of Appeals
dated December 11, 1987 which reversed and set aside that of the Regional Trial
Court, Branch XXXII, at Pili, Camarines Sur. The challenged decision adjudged the
petitioners liable to the private respondents in the total amount of P20,505.00 and
for costs.
1

The facts are as follows:

In the evening of November 7, 1979, the tricycle then being driven by Bienvenido
Nacario along the national highway at Barangay San Cayetano, in Baao, Camarines
Sur, figured in an accident with JB Bus No. 80 driven by petitioner Edgar Bitancor
and owned and operated by petitioner Jose Baritua. As a result of that accident
3

Bienvenido and his passenger died, and the tricycle was damaged. No criminal case
arising from the incident was ever instituted.
4

Subsequently, on March 27, 1980, as a consequence of the extra-judicial

settlement of the matter negotiated by the petitioners and the bus insurer
Philippine First Insurance Company, Incorporated (PFICI for brevity)Bienvenido
Nacarios widow, Alicia Baracena Vda. de Nacario, received P18,500.00. In
consideration of the amount she received, Alicia executed on March 27, 1980 a
Release of Claim in favor of the petitioners and PFICI, releasing and forever
discharging them from all actions, claims, and demands arising from the accident
which resulted in her husbands death and the damage to the tricycle which the
deceased was then driving. Alicia likewise executed an affidavit of desistance in
which she formally manifested her lack of interest in instituting any case, either
civil or criminal, against the petitioners.
7

On September 2, 1981, or about one year and ten months from the date of the
accident on November 7, 1979, the private respondents, who are the parents of
Bienvenido Nacario, filed a complaint for damages against the petitioners with the
then Court of First Instance of Camarines Sur. In their complaint, the private
respondents alleged that during the vigil for their deceased son, the petitioners
through their representatives promised them (the private respondents) that as
extra-judicial settlement, they shall be indemnified for the death of their son, for the
funeral expenses incurred by reason thereof, and for the damage to the tricycle the
purchase price of which they (the private respondents) only loaned to the victim.
The petitioners, however, reneged on their promise and instead negotiated and
settled their obligations with the long-estranged wife of their late son. The Nacario
spouses prayed that the defendants, petitioners herein, be ordered to indemnify
them in the amount of P25,000.00 for the death of their son Bienvenido, P10,000.00
for the damaged tricycle, P25,000.00 for compensatory and exemplary damages,
P5,000.00 for attorneys fees, and for moral damages.
8

After trial, the court a quo dismissed the complaint, holding that the payment by
the defendants (herein petitioners) to the widow and her child, who are the
preferred heirs and successors-in-interest of the deceased Bienvenido to the
exclusion of his parents, the plaintiffs (herein private respondents), extinguished
any claim against the defendants (petitioners).
10

The parents appealed to the Court of Appeals which reversed the judgment of the
trial court. The appellate court ruled that the release executed by Alicia Baracena
Vda. de Nacario did not discharge the liability of the petitioners because the case
was instituted by the private respondents in their own capacity and not as heirs,
representatives, successors, and assigns of Alicia; and Alicia could not have validly
waived the damages being prayed for (by the private respondents) since she was not
the one who suffered these damages arising from the death of their son.
Furthermore, the appellate court said that the petitioners failed to rebut the
testimony of the appellants (private respondents) that they were the ones who
bought the tricycle that was damaged in the incident. Appellants had the burden of
proof of such fact, and they did establish such fact in their testimony x x x. Anent
the funeral expenses, (T)he expenses for the funeral were likewise shouldered by
the appellants (the private respondents). This was never contradicted by the
appellees (petitioners). x x x. Payment (for these) were made by the appellants,
therefore, the reimbursement must accrue in their favor.
11

12

Consequently, the respondent appellate court ordered the petitioners to pay the
private respondents P10,000.00 for the damage of the tricycle, P5,000.00 for
complete funeral services, P450.00 for cemetery lot, P55.00 for oracion adulto, and
P5,000.00 for attorneys fees. The petitioners moved for a reconsideration of the
appellate courts decision but their motion was denied. Hence, this petition.
13

14

15

The issue here is whether or not the respondent appellate court erred in holding
that the petitioners are still liable to pay the private respondents the aggregate
amount of P20,505.00 despite the agreement of extrajudicial settlement between the
petitioners and the victims compulsory heirs.
The petition is meritorious.
Obligations are extinguished by various modes among them being by payment.
Article 1231 of the Civil Code of the Philippines provides:
Art. 1231. Obligations are extinguished:
(1) By payment or performance;
1. (2)By the loss of the thing due;

2. (3)By the condonation or remission of the debt;

3. (4)By the confusion or merger of the rights of creditor and debtor;
4. (5)By compensation;
5. (6)By novation.
(Emphasis ours.)

There is no denying that the petitioners had paid their obligation arising from the
accident that occurred on November 7, 1979. The only question now is whether or
not Alicia, the surviving spouse and the one who received the petitioners payment,
is entitled to it.
Article 1240 of the Civil Code of the Philippines enumerates the persons to whom
payment to extinguish an obligation should be made.
Art. 1240. Payment shall be made to the person in whose favor the obligation has been
constituted, or his successor in interest, or any person authorized to receive it.

Certainly there can be no question that Alicia and her son with the deceased are the
successors in interest referred to in law as the persons authorized to receive
payment. The Civil Code states:
Article 887. The following are compulsory heirs:
1. 1.Legitimate children and descendants, with respect to their legitimate parents and
ascendants;
2. 2.In default of the foregoing, legitimate parents and ascendants, with respect to
their legitimate children and descendants;
3. 3.The widow or widower;
4. 4.Acknowledged natural children, and natural children by legal fiction;
5. 5.Other illegitimate children referred to in Article 287.
Compulsory heirs mentioned in Nos. 3, 4 and 5 are not excluded by those in Nos. 1 and 2.
Neither do they exclude one another. (Emphasis ours.)

Article 985. In default of legitimate children and descendants of the deceased, his
parents and ascendants shall inherit from him, to the exclusion of collateral relatives.
(Emphasis ours.)

It is patently clear that the parents of the deceased succeed only when the latter
dies without a legitimate descendant. On the other hand, the surviving spouse
concurs with all classes of heirs. As it has been established that Bienvenido was
married to Alicia and that they begot a child, the private respondents are not
successors-in-interest of Bienvenido; they are not compulsory heirs. The petitioners
therefore acted correctly in settling their obligation with Alicia as the widow of
Bienvenido and as the natural guardian of their lone child. This is so even if Alicia
had been estranged from Bienvenido. Mere estrangement is not a legal ground for
the disqualification of a surviving spouse as an heir of the deceased spouse.
Neither could the private respondents, as alleged creditors of Bienvenido, seek
relief and compensation from the petitioners. While it may be true that the private
respondents loaned to Bienvenido the purchase price of the damaged tricycle and
shouldered the expenses for his funeral, the said purchase price and expenses are
but money claims against the estate of their deceased son. These money claims are
not the liabilities of the petitioners who, as we have said, had been released by the
agreement of the extra-judicial settlement they concluded with Alicia Baracena Vda.
de Nacario, the victims widow and heir, as well as the natural guardian of their
child, her co-heir. As a matter of fact, she executed a Release Of Claim in favor of
the petitioners.
16

WHEREFORE, the petition is GRANTED; the decision of the Court of Appeals is

REVERSED and SET ASIDE and the decision of the Regional Trial Court is hereby
REINSTATED. Costs against the private respondents.
SO ORDERED.
Melencio-Herrera (Chairman),Paras, Padilla and Regalado, JJ., concur.
Petition granted; decision reversed and set aside.
Note.The rights to the succession of a deceased person are transmitted to his
heirs from the moment of his death, and the right of succession includes all property

rights and obligations that survive the decedent. (Butte vs. Manuel Uy & Sons,
Inc., L-15499, February 28, 1962, 4 SCRA 526.)

G.R. No. 118449. February 11, 1998.

LAURO G. VIZCONDE, petitioner, vs.COURT OF APPEALS, REGIONAL TRIAL

COURT, Branch 120, Caloocan City, and RAMON G. NICOLAS, respondents.
Civil Law; Property; Settlement of Estate;Collation; Essence of Collation.Collation is
the act by virtue of which descendants or other forced heirs who intervene in the division of
the inheritance of an ascendant bring into the common mass, the property which they
received from him, so that the division may be made according to law and the will of the
testator. Collation is only required of compulsory heirs succeeding with other compulsory
heirs and involves property or rights received by donation or gratuitous title during the
lifetime of the decedent. The purpose is to attain equality among the compulsory heirs in so
far as possible for it is presumed that the intention of the testator or predecessor in interest
in making a donation or gratuitous transfer to a forced heir is to give him something in
advance on account of his share in the estate, and that the predecessors will is to treat all
his heirs equally, in the absence of any expression to the contrary. Collation does not impose
any lien on the property or the subject matter of collationable donation. What is brought to
collation is not the property donated itself, but rather the value of such property at the time
it was donated, the rationale being that the donation is a real alienation which conveys
ownership upon its acceptance, hence any increase in value or any deterioration or loss
thereof is for the account of the heir or donee.
Same; Same; Same; Same; Succession;Petitioner, a son-in-law of Rafael, is not one of
Rafaels compulsory heirs.The probate court erred in ordering the inclusion of petitioner
in the intestate estate proceeding. Petitioner, a son-in-law of Rafael, is not one of Rafaels
compulsory heirs.
Same; Same; Same; Same; Same;Petitioner may not be dragged into the intestate estate
proceeding.With respect to Rafaels estate, therefore, petitioner who was not even shown
to be a creditor of Rafael is considered a third person or a stranger. As such, petitioner may
not be dragged into the intestate estate proceeding. Neither may he be permitted or allowed
to intervene as he has no personality or interest in the said proceeding, which petitioner
correctly argued in his manifestation.

Same; Same; Same; Probate; The interpretation of the deed and the true intent of the
contracting parties, as well as the presence or absence of consideration, are matters outside
the probate courts jurisdiction.As a rule, the probate court may pass upon and determine
the title or ownership of a property which may or may not be included in the estate
proceedings. Such determination is provisional in character and is subject to final decision
in a separate action to resolve title. In the case at bench, however, we note that the probate
court went beyond the scope of its jurisdiction when it proceeded to determine the validity
of the sale of the Valenzuela property between Rafael and Estrellita and ruled that the
transfer of the subject property between the concerned parties was gratuitous. The
interpretation of the deed and the true intent of the contracting parties, as well as the
presence or absence of consideration, are matters outside the probate courts jurisdiction.
These issues should be ventilated in an appropriate action.

PETITION for review on certiorari of a decision of the Court of Appeals.

The facts are stated in the opinion of the Court.
Acosta, Rueda-Acosta & Associatesfor petitioner.
Abbas and Associates for private respondent.
FRANCISCO, J.:
Petitioner Lauro G. Vizconde and his wife Estrellita Nicolas-Vizconde had two
children, viz., Carmela andJennifer.Petitioners wife, Estrellita, is one of the five siblings
ofspouses RafaelNicolas and Salud Gonzales-Nicolas. The otherchildren of Rafael and
Salud areAntonio Nicolas; RamonNicolas; TeresitaNicolas de Leon, and Ricardo Nicolas,
anincompetent. Antonio predeceased his parents and is nowsurvived by his widow,Zenaida,
and their four children.

On May 22, 1979, Estrellita purchased from Rafael a parcel of land with an area of
10,110 sq. m. located at Valenzuela, Bulacan (hereafter Valenzuela property)
covered by TCT No. (T-36734) 13206 for One Hundred Thirty Five Thousand Pesos
(P135,000.00), evidenced by a Lubusang Bilihan ng Bahagi ng Lupa na
Nasasakupan ng Titulo TCT No. T-36734. In view thereof, TCT No. V-554 covering
the Valenzuela property was issued to Estrellita. On March 30, 1990, Estrellita sold
the Valenzuela property to Amelia Lim and Maria Natividad Balictar Chiu for
Three Million, Four Hundred Five Thousand, Six Hundred Twelve Pesos
1

(P3,405,612.00). In June of the same year, Estrellita bought from Premier Homes,
Inc., a parcel of land with improvements situated at Vinzon St., BF Homes,
Paraaque (hereafter Paraaque property) using a portion of the proceeds of sale of
the Valenzuela property. The remaining amount of the proceeds was used in buying
a car while the balance was deposited in a bank.
3

The following year an unfortunate event in petitioners life occurred. Estrellita

and her two daughters, Carmela and Jennifer, were killed on June 30, 1991, an
incident popularly known as the Vizconde Massacre. The findings of the
investigation conducted by the NBI reveal that Estrellita died ahead of her
daughters. Accordingly, Carmela, Jennifer and herein petitioner succeeded
Estrellita and, with the subsequent death of Carmela and Jennifer, petitioner was
left as the sole heir of his daughters. Nevertheless, petitioner entered into an
Extra-Judicial Settlement of the Estate of Deceased Estrellita Nicolas-Vizconde
With Waiver of Shares, with Rafael and Salud, Estrellitas parents. The
extrajudicial settlement provided for the division of the properties of Estrellita and
her two daughters between petitioner and spouses Rafael and Salud. The properties
include bank deposits, a car and the Paraaque property. The total value of the
deposits deducting the funeral and other related expenses in the burial of Estrellita,
Carmela and Jennifer, amounts to Three Million Pesos (P3,000,000.00). The
settlement gave fifty percent (50%) of the total amount of the bank deposits of
Estrellita and her daughters to Rafael, except Savings Account No. 104-111211-0
under the name of Jennifer which involves a token amount. The other fifty percent
(50%) was allotted to petitioner. The Paraaque property and the car were also
given to petitioner with Rafael and Salud waiving all their claims, rights,
ownership and participation as heirs in the said properties.
4

On November 18, 1992, Rafael died. To settle Rafaels estate, Teresita instituted
an intestate estate proceeding docketed as Sp. Proc. No. C-1679, with Branch 120 of
the Regional Trial Court (RTC) of Caloocan City listing as heirs Salud, Ramon,
Ricardo, and the wife (Zenaida) and children of Antonio. Teresita prayed to be
appointed Special Administratrix of Rafaels estate. Additionally, she sought to be
appointed as guardian ad litem of Salud, now senile, and Ricardo, her incompetent
brother. Herein private respondent Ramon filed an opposition dated March 24,
1993, praying to be appointed instead as Salud and Ricardos guardian. Barely three
weeks passed, Ramon filed another opposition alleging, among others, that
Estrellita was given the Valenzuela property by Rafael which she sold for not less
8

10

than Six Million Pesos (P6,000,000.00) before her gruesome murder. Ramon pleaded
for the courts intervention to determine the legality and validity of the intervivos
distribution made by deceased Rafael to his children, Estrellita included. On May
12, 1993, Ramon filed his own petition, docketed as SP. Proc. No. C-1699, entitled
In The Matter Of The Guardianship Of Salud G. Nicolas and Ricardo G. Nicolas
and averred that their legitime should come from the collation of all the properties
distributed to his children by Rafael during his lifetime. Ramon stated that herein
petitioner is one of Rafaels children by right of representation as the widower of
deceased legitimate daughter of Estrellita.
11

12

13

In a consolidated Order, dated November 9, 1993, the RTC appointed Ramon as the
guardian of Salud and Ricardo while Teresita, in turn, was appointed as the Special
Administratrix of Rafaels estate. The courts Order did not include petitioner in the
slate of Rafaels heirs. Neither was the Paraaque property listed in its list of
properties to be included in the estate. Subsequently, the RTC in an Order dated
January 5, 1994, removed Ramon as Salud and Ricardos guardian for selling his
wards property without the courts knowledge and permission.
14

15

16

Sometime on January 13, 1994, the RTC released an Order giving petitioner ten
(10) days x x x within which to file any appropriate petition or motion related to the
pending petition insofar as the case is concerned and to file any opposition to any
pending motion that has been filed by both the counsels for Ramon Nicolas and
Teresita de Leon. In response, petitioner filed a Manifestation, dated January 19,
1994, stressing that he was neither a compulsory heir nor an intestate heir of Rafael
and he has no interest to participate in the proceedings. The RTC noted said
Manifestation in its Order dated February 2, 1994. Despite the Manifestation,
Ramon, through a motion dated February 14, 1994, moved to include petitioner in
the intestate estate proceeding and asked that the Paraaque property, as well as
the car and the balance of the proceeds of the sale of the Valenzuela property, be
collated. Acting on Ramons motion, the trial court on March 10, 1994 granted the
same in an Order which pertinently reads as follows:
17

18

xxx

xxx

xxx

On the Motion To Include Lauro G. Vizconde In Intestate proceedings in instant case

and considering the comment on his Manifestation, the same is hereby granted.
19

xxx

xxx

xxx

Petitioner filed its motion for reconsideration of the aforesaid Order which Ramon
opposed. On August 12, 1994, the RTC rendered an Order denying petitioners
motion for reconsideration. It provides:
20

xxx

xxx

xxx

The centerpoint of oppositor-applicants argument is that spouses Vizconde were then

financially incapable of having purchased or acquired for a valuable consideration the
property at Valenzuela from the deceased Rafael Nicolas. Admittedly, the spouses Vizconde
were then living with the deceased Rafael Nicolas in the latters ancestral home. In fact, as
the argument further goes, said spouses were dependent for support on the deceased Rafael
Nicolas. And, Lauro Vizconde left for the United States in, de-facto separation, from the
family for sometime and returned to the Philippines only after the occurrence of violent
deaths of Estrellita and her two daughters.
To dispute the contention that the spouses Vizconde were financially incapable to buy the
property from the late Rafael Nicolas, Lauro Vizconde claims that they have been engaged in
business venture such as taxi business, canteen concessions and garment manufacturing.
However, no competent evidence has been submitted to indubitably support the business
undertakings adverted to.
In fine, there is no sufficient evidence to show that the acquisition of the property from
Rafael Nicolas was for a valuable consideration.
Accordingly, the transfer of the property at Valenzuela in favor of Estrellita by her father
was gratuitous and the subject property in Paraaque which was purchased out of the
proceeds of the said transfer of the property by the deceased Rafael Nicolas in favor of
Estrellita, is subject to collation.
WHEREFORE, the motion for reconsideration is hereby DENIED. (Italics added)
21

Petitioner filed a petition for certiorari and prohibition with respondent Court of
Appeals. In its decision of December 14, 1994, respondent Court of Appeals denied
the petition stressing that the RTC correctly adjudicated the question on the title of
the Valenzuela property as the jurisdiction of the probate court extends to matters
incidental and collateral to the exercise of its recognized powers in handling the
settlement of the estate of the deceased (Cf.: Sec. 1, Rule 90, Revised Rules of
Court). Dissatisfied, petitioner filed the instant petition for review on certiorari.
Findingprima facie merit, the Court on December 4, 1995, gave due course to the
petition and required the parties to submit their respective memoranda.
22

23

The core issue hinges on the validity of the probate courts Order, which
respondent Court of Appeals sustained, nullifying the transfer of the Valenzuela
property from Rafael to Estrellita and declaring the Paraaque property as subject
to collation.
The appeal is well taken.
Basic principles of collation need to be emphasized at the outset. Article 1061 of
the Civil Code speaks of collation. It states:
Art. 1061. Every compulsory heir, who succeeds with other compulsory heirs, must bring
into the mass of the estate any property or right which he may have received from the
decedent, during the lifetime of the latter, by way of donation, or any other gratuitous title,
in order that it may be computed in the determination of the legitime of each heir, and in
the account of the partition.

Collation is the act by virtue of which descendants or other forced heirs who
intervene in the division of the inheritance of an ascendant bring into the common
mass, the property which they received from him, so that the division may be made
according to law and the will of the testator. Collation is only required of
compulsory heirs succeeding with other compulsory heirs and involves property or
rights received by donation or gratuitous title during the lifetime of the
decedent. The purpose is to attain equality among the compulsory heirs in so far as
possible for it is presumed that the intention of the testator or predecessor in
interest in making a donation or gratuitous transfer to a forced heir is to give him
something in advance on account of his share in the estate, and that the
predecessors will is to treat all his heirs equally, in the absence of any expression to
the contrary. Collation does not impose any lien on the property or the subject
matter of collationable donation. What is brought to collation is not the property
donated itself, but rather the value of such property at the time it was donated, the
rationale being that the donation is a real alienation which conveys ownership upon
its acceptance, hence any increase in value or any deterioration or loss thereof is for
the account of the heir or donee.
24

25

26

27

28

The attendant facts herein do not make a case of collation. We find that the
probate court, as well as respondent Court of Appeals, committed reversible errors.

First: The probate court erred in ordering the inclusion of petitioner in the
intestate estate proceeding. Petitioner, a son-in-law of Rafael, is not one of Rafaels
compulsory heirs. Article 887 of the Civil Code is clear on this point:
Art. 887. The following are compulsory heirs:
1. (1)Legitimate children and descendants, with respect to their legitimate parents and
ascendants;
2. (2)In default of the following, legitimate parents and ascendants, with respect to
their legitimate children and ascendants;
3. (3)The widow or widower;
4. (4)Acknowledged natural children, and natural children by legal fiction;
5. (5)Other illegitimate children referred to in article 287. Compulsory heirs
mentioned in Nos. 3, 4 and 5 are not excluded by those in Nos. 1 and 2; neither do
they exclude one another.
In all cases of illegitimate children, their filiation must be duly proved.
The father or mother of illegitimate children of the three classes mentioned, shall
inherit from them in the manner and to the extent established by this Code.

With respect to Rafaels estate, therefore, petitioner who was not even shown to be a
creditor of Rafael is considered a third person or a stranger. As such, petitioner may
not be dragged into the intestate estate proceeding. Neither may he be permitted or
allowed to intervene as he has no personality or interest in the said
proceeding, which petitioner correctly argued in his manifestation.
29

30

31

Second: As a rule, the probate court may pass upon and determine the title or
ownership of a property which may or may not be included in the estate
proceedings. Such determination is provisional in character and is subject to final
decision in a separate action to resolve title. In the case at bench, however, we note
that the probate court went beyond the scope of its jurisdiction when it proceeded to
determine the validity of the sale of the Valenzuela property between Rafael and
Estrellita and ruled that the transfer of the subject property between the concerned
parties was gratuitous. The interpretation of the deed and the true intent of the
32

33

contracting parties, as well as the presence or absence of consideration, are matters

outside the probate courts jurisdiction. These issues should be ventilated in an
appropriate action. We reiterate:
x x x we are of the opinion and so hold, that a court which takes cognizance of testate or
intestate proceedings has power and jurisdiction to determine whether or not the properties
included therein or excluded therefrom belong prima facie to the deceased, although such a
determination is not final or ultimate in nature, and without prejudice to the right of the
interested parties, in a proper action, to raise the question bearing on the ownership or
existence of the right or credit.
34

Third: The order of the probate court subjecting the Paraaque property to collation
is premature. Records indicate that the intestate estate proceedings is still in its
initiatory stage. We find nothing herein to indicate that the legitime of any of
Rafaels heirs has been impaired to warrant collation. We thus advert to our ruling
inUdarbe v. Jurado, 59 Phil. 11, 13-14, to wit:
We are of the opinion that this contention is untenable. In accordance with the provisions
of article 1035 of the Civil Code, it was the duty of the plaintiffs to allege and prove that
the donations received by the defendants were inofficious in whole or in part and prejudiced
the legitime or hereditary portion to which they are entitled. In the absence of evidence to
that effect, the collation sought is untenable for lack of ground or basis therefor.
35

Fourth: Even on the assumption that collation is appropriate in this case the
probate court, nonetheless, made a reversible error in ordering collation of the
Paraaque property. We note that what was transferred to Estrellita, by way of deed
of sale, is the Valenzuela property. The Paraaque property which Estrellita
acquired by using the proceeds of the sale of the Valenzuela property does not
become collationable simply by reason thereof. Indeed, collation of the Paraaque
property has no statutory basis. The order of the probate court presupposes that
the Paraaque property was gratuitously conveyed by Rafael to Estrellita. Records
indicate, however, that the Paraaque property was conveyed for and in
consideration of P900,000.00, by Premier Homes, Inc., to Estrellita. Rafael, the
decedent, has no participation therein, and petitioner who inherited and is now the
present owner of the Paraaque property is not one of Rafaels heirs. Thus, the
probate courts order of collation against petitioner is unwarranted for the obligation
to collate is lodged with Estrellita, the heir, and not to herein petitioner who does
not have any interest in Rafaels estate. As it stands, collation of the Paraaque
36

37

property is improper for, to repeat, collation covers only properties gratuitously

given by the decedent during his lifetime to his compulsory heirs which fact does not
obtain anent the transfer of the Paraaque property. Moreover, Rafael, in a public
instrument, voluntarily and willfully waived any claims, rights, ownership and
participation as heir in the Paraaque property.
38

Fifth: Finally, it is futile for the probate court to ascertain whether or not the
Valenzuela property may be brought to collation. Estrellita, it should be stressed,
died ahead of Rafael. In fact, it was Rafael who inherited from Estrellita an amount
more than the value of the Valenzuela property. Hence, even assuming that the
Valenzuela property may be collated collation may not be allowed as the value of the
Valenzuela property has long been returned to the estate of Rafael. Therefore, any
determination by the probate court on the matter serves no valid and binding
purpose.
39

WHEREFORE, the decision of the Court of Appeals appealed from is hereby

REVERSED AND SET ASIDE.
SO ORDERED.
Narvasa (C.J., Chairman),Romero, Kapunan and Purisima, JJ.,concur.
Appealed decision reversed and set aside.
Note.Probate court may resolve question of title pertaining to the
determination prima facie of whether certain properties ought to be included or
excluded from the inventory or accounting. (Intestate Estate of the Late Don
Mariano San Pedro y Esteban vs. Court of Appeals, 265 SCRA 733 [1996])
o0o

[No. 6878. September 13, 1913.]

MARCELINA EDROSO, petitioner and appellant, vs. PABLO and BASILIO
SABLAN, opponents and appellees.
1. 1.ESTATES; DUTY OF ASCENDANT, WHO INHERITS THROUGH A
DECENDANT, TO RESERVE THE PROPERTY IN ACCORDANCE WITH LAW;
ARTICLE 811, CIVIL CODE.Property which an ascendant inherits by operation
of law from his descendant and which was inherited by the latter f rom another
ascendant of his, must be reserved by the ascendant heir in favor of uncles of the
descendant from whom the inheritance proceeded, who are his father's brothers,
because they are relatives within the third degree, if they belong to the line whence
the property proceeded, according to the provisions of article 811 of the Civil Code.
1. 2.ID.; ID.; RIGHTS OF PERSONS FOR WHOM SUCH PROPERTY IS RESERVED.
Since the reservation does not imply cownership of any kind between the
reservor and the reservees, that is, between the ascendant who is the immediate
heir of the person from whom the inheritance proceeded and who is the actual
owner of the property to be reserved and the relatives within the third degree of
such person, who are merely in their turn and eventually his possible heirs in
second place, if they outlive the heir who .must make the reservation, such
reservees, with only the expectation of inheriting, are not in law entitled to act and
be regarded as though they actually participated in the ownership of the property
to be registered by taking part or pretending to take part in the application for
registration which the reservor presents; the fact being that with such expectation
of inheriting, which is neither a real nor a personal right, but at most a legitimate
expectation of a right, they cannot be better off than a mortgagee who has a real
right to the property that his debtor attempts to register, and yet the Land
Registration Act (No. 496, sec. 19 b) only grants him the right that the application
of the mortgagor cannot be presented without his consent in writing.
1. 3.ID. ; ID. ; RIGHT OF ASCENDANT TO DISPOSE OF OR REGISTER THE
PROPERTY IN His OWN NAME.The heir of real property who has beyond any
doubt the rights of using and enjoying it, and even of alienating it, is not prevented

from himself alone registering the title to the property he has inherited, merely
because to his right of disposal there is annexed a condition subsequent arising
from the expectation of a right, when the reservees who have that expectation of a
right agreed thereto, provided that, in accordance with the law, the reservable
character of such property in their favor be entered in the record.

APPEAL from a judgment of the Court of Land Registration. George, J.

The f acts are stated in the opinion of the court.
Francisco Dominguez, for appellant.
Crispin Oben, for appellees.
ARELLANO, C. J.:
The subject matter of this appeal is the registration of certain property classified as
required by law to be reserved. Marcelina Edroso applied for registration and
issuance of title to two parcels of land situated in the municipality of Pagsanjan,
Province of Laguna, one of 1 hectare 77 ares and 63 centares, and the other of 1
hectare 6 ares and 26 centares. Two applications were filed, one for each parcel, but
both were heard and decided in a single judgment.
Marcelina Edroso was married to Victoriano Sablan until his death on
September 22,1882. In this marriage they had a son named Pedro, who was born on
August 1, 1881, and who at his father's death inherited the two said parcels. Pedro
also died on July 15, 1902, unmarried and without issue, and by his decease the two
parcels of land passed through inheritance to his mother, Marcelina Edroso. Hence
the hereditary title whereupon is based the application for registration of her
ownership.
Two legitimate brothers of Victoriano Sablanthat is, two uncles german of
Pedro Sablanappeared in the case to oppose the registration, claiming one of two
things: Either that the registration be denied, "or that if granted to her the right
reserved by law to the opponents be recorded in the registration of each parcel." (B.
of E., 11,12.)
The Court of Land Registration denied the registration and the applicant
appealed through a bill of exceptions. Registration was denied because the trial

court held that the parcels of land in question partake of the nature of property
required by law to be reserved and that in such a case application could only be
presented jointly in the names of the mother and the said two uncles of Pedro
Sablan.
The appellant impugns as erroneous the first idea advanced (second assignment
of error), and denies that the lands which are the subject matter of the application
are required by law to be reserveda contention we regard as indefensible.
Facts: (1) The applicant acquired said lands from her descendant Pedro Sablan
by inheritance; (2) Pedro Sablan had acquired them from his ascendant Victoriano
Sablan, likewise by inheritance; (3) Victoriano Sablan had likewise acquired them
by inheritance f rom his ascendants, Mariano Sablan and Maria Rita Fernandez,
they having been adjudicated to him in the partition of hereditary property had
between him and his brothers. These are admitted facts.
A very definite conclusion of law is that the hereditary title is one without a
valuable consideration [gratuitous title], and it is so characterized in article 968 of
the Civil Code, for he who acquires by inheritance gives nothing in return for what
he receives; and a very definite conclusion of law also is that the uncles german are
within the third degree of blood relationship.
"The ascendant who inherits from his descendant property which the latter
acquired without a valuable consideration from another ascendant, or from a
brother or sister, is under obligation to reserve what he has acquired by operation of
law for the relatives who are within the third degree and belong to the line whence
the property proceeded." (Civil Code, art. 811.)
Marcelina Edroso, ascendant of Pedro Sablan, inherited from him these two
parcels of land which he had acquired without a valuable considerationthat is, by
inheritance from another ascendant, his father Victoriano. Having acquired them by
operation of law, she is obligated to reserve them intact for the claimants, who are
uncles or relatives within the third degree and belong to the line of Mariano Sablan
and Maria Rita Fernandez, whence the lands proceeded. The trial court's ruling
that they partake of the nature of property required by law to be reserved is
therefore in accordance with the law.

But the appellant contends that it is not proven that the two parcels of land in
question have been acquired by operation of law, and that only property acquired
without a valuable consideration, which is by operation of law, is required by law to
be reserved.
The appellees justly argue that this defense was not alleged or discussed in first
instance, but only herein. Certainly, the allegation in first instance was merely that
"Pedro Sablan acquired the property in question in 1882, before the enforcement
orcement of the Civil Code, which establishes the alleged right required by law to be
reserved, of which the opponents speak; hence, prescription of the right of action;
and, finally, opponents' renunciation of their right, admitting that it existed and
that they, had it" (p. 49).
However that be, it is not superfluous to say, although it may be unnecessary,
that the applicant inherited the two parcels of land from her son Pedro, who died
"unmarried and without issue." The trial court so held as a conclusion of fact,
without any objection on the appellant's part. (B. of E., 17, 20.) When Pedro Sablan
died without issue, his mother became his heir by virtue of her right to her son's
legal portion under article 935 of the Civil Code: "In the absence of legitimate
children and descendants of the deceased, his ascendants shall inherit from him, to
the exclusion of collaterals."
The contrary could only have occurred if the heiress had demonstrated that any
of these lands had passed into her possession by free disposal in her son's will; but
the case presents no testamentary provision that demonstrates any transfer of
property from the son to the mother, not by operation of law, but by her son's wish.
The legal presumption is that the transfer of the two parcels of land was abintestate
or by operation of law, and not by will or the wish of the predecessor in interest. (Act
No. 190, sec. 334, No. 26.) All the provisions of article 811 of the Civil Code have
therefore been fully complied with.
If Pedro Sablan had instituted his mother in a will as the universal heiress of his
property, all he left at death would not be required by law to be reserved, but only
what he would have perforce left her as the legal portion of a legitimate ascendant.
"The legal portion of the parents or ascendants is constituted by one-half of the
hereditary estate of the children and descendants. The latter may unrestrictedly

dispose of the other half, with the exception of what is established in article 836."
(Civil Code, art. 809.)
In such case only the half constituting the legal portion would be required by law
to be reserved, because it is what by operation of law would fall to the mother from
her son's inheritance; the other half at free disposal would not have to be reserved.
This is all that article 811 of the Civil Code says.
No error has been incurred in holding that the two parcels of land which are the
subject matter of the application are required by law to be reserved, because the
interested party has not proved that either of them became her inheritance through
the free disposal of her son.
Proof of testate succession devolves upon the heir or heiress who alleges it. It
must be admitted that a half of Pedro Sablan's inheritance was acquired by his
mother by operation of law. The law provides that the other half is also presumed to
be acquired by operation of lawthat is, by intestate succession. Otherwise, proof to
offset this presumption must be presented by the interested party, that is, that the
other half was acquired by the man's wish and not by operation of law.
Nor is the third assignment- of error admissiblethat the trial court failed to
sustain the renunciation of the right required by law to be reserved, which the
applicant attributes to the opponents. Such renunciation does not appear in the
case. The appellant deduces it from the fact that the appellees did not contradict the
f ollowing statement of hers at the trial:
"The day after my brother-in-law Pablo Sablan died and was buried, his brother
came to my house and said that those rice lands were mine, because we had already
talked about making delivery of them" (p. 91).
The other brother alluded to is "Basilio Sablan, as stated on page 92. From the f
act that Basilio Sablan said that the lands belong to the appellant and must be
delivered to her it cannot be deduced that he renounced the right required by law to
be reserved in such lands by virtue of the provisions of article 811 of the Civil Code,
for they really belong to her and must be delivered to her.
The fourth assignment of error sets up the defense of prescription of the right of
action. The appellant alleges prescription of the opponents' right of action f or

requiring f ulfillment of the obligation they attribute to her recording in the

property registry the right required by law to be reserved, in accordance with the
provisions of the Mortgage Law; and as such obligation is created by law, it
prescribes in the time fixed in No. 2 of section 43 of Act No. 190. She adds:
"Prescription of the rightalleged to be reserved by force of law has not been invoked."
(Eighth allegation.)
The appellant does not state in her brief what those provisions of the Mortgage
Law are. Nor did she do so in first instance, where she says only the f ollowing,
which is quoted from the record: "I do not refer to the prescription of the right
required by law to be reserved in the property; I refer to the prescription of the right
of action of those who are entitled to the guaranty of that right for seeking .that
guaranty, for to those who are entitled to that right the Mortgage Law grants a
period of time f or recording it in the property registry, if I remember correctly,
ninety days, for seeking entry in the registry; but as they have not exercised that
right of action, such right of action for seeking here that it be recorded has
prescribed. The right of action for requiring that the property be reserved has not
prescribed, but the right of action for guaranteeing in the property registry that this
property is required by law to be reserved" (p. 69 of the record).
The appellees reply: It is true that their right of action has prescribed f or
requiring the applicant to constitute the mortgage imposed by the Mortgage Law for
guaranteeing the effectiveness of the right required by law to be reserved; but
because that right of action has prescribed, that property has not been divested of
its character of property required by law to be reserved; that it has such character
by virtue of article 811 of the Civil Code, which went into effect in the Philippines in
December, 1889, and not by virtue of the Mortgage Law, which only went into effect
in the country by law of July 14, 1893; that f rom December, 1889, to July, 1893,
property which under article 811 of the Civil Code acquired the character of
property reserved by operation of law was such independently of the Mortgage Law,
which did not yet form part of the positive legislation of the country; that although
the Mortgage Law has been in effect in the country since July, 1893, still it has in no
way altered the force of article 811 of the Civil Code, but has operated to reinforce
the same merely by granting the right of action to the persons in whose favor the
right is reserved by operation of law to require of the person holding the property a
guaranty in the form of a mortgage to answer for the enforcement, in due time, of
the right; that to lose the right of action to the guaranty is not to lose the right

itself; that the right reserved is the principal obligation and the mortgage the
accessory obligation, and loss of the accessory does not mean loss of the principal.
(Fifth and sixth allegations.)
The existence of the right required by law to be reserved in the two parcels of
land in question being indisputable, even though it be admitted that the right of
action which the Mortgage Law grants as a guaranty of final enforcement of such
right has prescribed, the only thing to be determined in this appeal is the question
raised in the first assignment of error, that is, how said two parcels of land can and
ought to be registered, not in the property registry established by the Mortgage
Law, but in the registry newly organized by Act No. 496. . But as there have slipped
into the allegations quoted some rather inexact ideas that further obscure such an
intricate subject as this of the rights required to be reserved in Spanish-Philippine
law, a brief digression on the most essential points may not be out of place here.
The Mortgage Law of July 14, 1893, to which the appellees allude, is the
amended one of the colonies, not the first enforced in the colonies and consequently
in the Philippines. The preamble of said amended Mortgage Law states:
"The Mortgage Law in force in Spain for thirty years went into effect, with the
modifications necessary for its adaptation, in the Antilles on May 1, 1880, and in the
Philippines on December 1, 1889, thus commencing in those regions the renovation
of the law on real property, and consequently of agrarian credit."
The Civil Code went into effect in the Philippines in the same year, 1889, but on
the eighth day.
Two kinds of property required by law to be reserved are distinguished in the
Civil Code, as set forth in article 968 thereof, where it says:
"Besides the reservation imposed by article 811, the widow or widower
contracting a second marriage shall be obliged to set apart for the children and
descendants of the first marriage the ownership of all the property he or she may
have acquired from the deceased spouse by will, by intestate succession, by gift, or
other transfer without a valuable consideration."
The Mortgage Law of Spain and the first law that went into effect in the
Philippines on December 1, 1889, do not contain any provision that can be applied to

the right reserved by article 811 of the Civil Code, for such right is a creation of the
Civil Code. In those laws appear merely the provisions intended to guarantee the
effectiveness of the right in favor of the children of the first marriage when their f
ather or mother contracts a second marriage. Nevertheless, the holding of the
supreme court of Spain, for the first time set forth in the decision on appeal of
November 8, 1894, has been reiterated:
"That while the provisions of articles 977 and 978 of the Civil Code that tend to
secure the right required to be reserved in the property ref er especially to the
spouses who contract second or later marriages, they do not thereby cease to be
applicable to the right established in article 811, because, aside from the legal
reason, which is the same in both cases, such must be the construction from the
important and conclusive circumstance that said provisions are set f orth in the
chapter that deals with inheritances in common, either testate or intestate, and
because article 968, which heads the section that deals in general with property
required by law to be reserved, makes reference to the provisions in article 811; and
it would consequently be contradictory to the principle of the law and of the common
nature of said provisions not to hold them applicable to that right."
Thus it was again stated in a decision on appeal, December 30, 1897, that: "As
the supreme court has already declared, the guaranties that the Code fixes in
articles 977 and 978 for the rights required by law to be reserved to which said
articles refer, are applicable to the special right dealt with in article 811, because
the same principle exists and because of the general nature of the provisions of the
chapter in which they are found."
From this principle of jurisprudence it is inferred that if from December, 1889, to
July, 1893, a case had occurred of a right required to be reserved by article 811, the
persons entitled to such right would have been able to institute, against the
ascendant who must make the reservation, proceedings for the assurance and
guaranty that articles 977 and 978 grant to the children of a first marriage against
their father or mother who has married again. The proceedings for assurance, under
article 977, are: Inventory of the property subject to the right reserved, annotation
in the property registry of such right reserved in the real property and appraisal of
the personal property; and the guaranty, under article 978, is the assurance by
mortgage, in the case of realty, of the value of what is validly alienated.

But since the amended Mortgage Law went into effect by law of July 14, 1893, in
the Philippines this is not only a principle of jurisprudence which may be invoked
for the applicability to the right reserved in article 811 of the remedies of assurance
and guaranty provided for the right reserved in article 968, but there is a positive
provision of said law, which is an advantage over the law of Spain, to wit, article
199, which read thus:
"The special mortgage for guaranteeing the right reserved by article 811 of the
Civil Code can only be required by the relatives in whose favor the property is to be
reserved, if they are of age; if minors, it will be required by the persons who should
legally represent them. In either case the right of the persons in whose favor the
property must be reserved will be secured by the same requisites as set forth in the
preceding articles (relative to the right reserved by article 968 of the Civil Code),
applying to the personobligated to reserve the right the provisions with respect to
the father"
In article 168 of the same law the new subsection 2 is added in connection with
article 199 quoted, so that said article 168 reads thus:
"Legal mortgage is established:
"1. * * *
"2. In favor of the relatives to whom article 811 of the Civil Code refers, for the
property required to be reserved, upon the property of the person obligated to
reserve it."
This being admitted, and admitted also that both the litigating parties agree that
the period of ninety days fixed f or the right of action to the guaranty, that is, to
require the mortgage that guarantees the effectiveness of the right required by law
to be reserved, has prescribed, it is necessary to lay down a principle in this matter.
Now it should be noted that such action has not prescribed, because the period of
ninety days fixed by the Mortgage Law is not for the exercise of the right of action of
the persons entitled to the right reserved, but for the fulfillment of the obligation of
the person who must make the reservation.
Article 191 of the law reads thus: "If ninety days pass without the father's
instituting in court the proceeding to which the foregoing article refers, the relatives

themselves may demand fulfillment, etc., * * * applying, accord-ing to said article

199, to the person obligated to reserve the right the provisions with respect to the
father."
Article 203 of the regulation for the application of the Mortgage Law says: "In the
case of article 199 of the law the proceedings to which article 190 thereof refers will
be instituted within the ninety days succeeding the date of the date of the
acceptation of the inheritance by the person obligated to reserve the property;after
this period has elapsed, the interested parties may require the institution of such
proceedings, if they are of age; and in any other case, their legal representatives."
Thus it clearly appears that the lapse of the ninety days is not the expiration by
prescription of the period for the exercise of this right of action by the persons in
whose favor the right must be reserved, but really the commencement thereof, and
enables them to exercise it at any time, since no limit is set in the law. So, if the
annotation of the right required by law to be reserved in the two parcels of land in
question must be made in the property registry of the Mortgage Law, the persons
entitled to it may now institute proceedings to that end, and an allegation of
prescription against the exercise of such right of action cannot be sustained.
Since the applicant confesses that she does not allege prescription of the right of
action for requiring that the property be reserved, for she explicitly so stated at the
trial, and as. the case presents no necessity for the proceedings that should be
instituted in accordance with the provisions of the Mortgage Law, this prescription
of the right of action cannot take place, because such right of action does not exist
with reference to instituting proceedings for annotation in the registry of Act No.
496 of the right to the property required by law to be reserved. It is sufficient, as
was done in the present case, to intervene in the registration proceedings with the
claim set up by the two opponents for recording therein the right reserved in either
parcel of land.
Now comes the main point in the appeal. The trial court denied the registration
because of this finding set forth in its decision:
"Absolute title to the two parcels of land undoubtedly belongs to the applicant
and the two uncles of the deceased Pedro Sablan, and the application cannot be
made except in the name of all of them in common." (B. of E., p. 20.)

It must be remembered that absolute title consists of the rights to use, enjoy,
dispose of, and recover. The person who has in himself all these rights has the
absolute or complete ownership of the thing; otherwise, the person who has the
rights to use and enjoy will have the usufruct, and the person who has the rights of
disposal and recovery the direct title. The person who by law, act, or contract is
granted the right of usufruct has the first two rights of using and enjoying, and then
he is said not to have the fee simplethat is, the rights of disposal and recovery,
which pertain to another who, after the usufruct expires, will come into f full
ownership.
The question set up in the first assignment of error of the appellant's brief is this:
"What are the rights in the property of the person who holds it subject to the
reservation of article 811 of the Civil Code?"
There are not lacking writers who say, only those of a usufructuary, the ultimate
title belonging to the persons in whose favor the reservation is made. If that were
so, the person holding the property could not apply for registration of title, but the
person in whose favor it must be reserved, with the former's consent. This opinion
does not seem to be admissible, although it appears to be supported by decisions of
the supreme court of Spain of May 21, 1861, and June 18, 1880, prior to the Civil
Code, and of June 22, 1895, somewhat subsequent to the enforcement thereof.
Another writer says: "This opinion only looks at two salient pointsthe usufruct
and the fee simple; the remaining features of the arrangement are not perceived,
but become obscured in the presence of that deceptive emphasis which only brings
out two things: that the person holding the property will enjoy it and that he must
keep what he enjoys for other persons." (Manresa, VII, 189.)
In another place he says: "We do not believe that the third opinion can now be
maintainedthat is, that the-surviving spouse (the person obligated by article 968
to make the reservation) can be regarded as a mere usufructuary and the
descendants immediately as the owner; such theory has no serious foundation in the
Code." (Ibid., 238.)
The ascendant who inherits from a descendant, whether by the latter's wish or by
operation of law, acquires the inheritance by virtue of a title perfectly transferring
absolute ownership. All the attributes of the right of ownership belong to him

exclusivelyuse, enjoyment, disposal and recovery. This absolute ownership, which

is inherent in the hereditary title, is not altered in the least, if there be no relatives
within the third degree in the line whence the property proceeds or they die before
the ascendant heir who is the possessor and absolute owner of the property. If there
should be relatives within the third degree who belong to the line whence the
property proceeded, then a limitation to that absolute ownership would arise. The
nature and scope of this limitation must be determined with exactness in order not
to vitiate rights that the law wishes to be effective. The opinion which makes this
limitation consist in reducing the ascendant heir to the condition of a mere
usufructuary, depriving him of the right of disposal and recovery, does not seem to
have any support in the law, as it does not have, according to the opinion that has
been expressed in speaking of the rights of the father or mother who has married
again. There is a marked difference between the case where a man's wish institutes
two persons as his heirs, one as usufructuary and the other as owner of his property,
and the case of the ascendant in article 811 or of the father or mother in article 968.
In the first case, there is not the slightest doubt that the title to the hereditary
property resides in the hereditary owner and only he can dispose of and recover it,
while the usufructuary can in no way perform any act of disposal of the hereditary
property (except that he may dispose of the right of usufruct in accordance with the
provisions of article 480 of the Civil Code), or any act of recovery thereof except the
limited one in the f orm prescribed in article 486 of the Code itself, because he
totally lacks the f ee simple. But the ascendant who holds the property required by
article 811 to be reserved, and the father or mother required by article 968 to
reserve the right, can dispose of the property they inherit itself, the former from his
descendant and the latter from his or her child in first marriage, and recover it from
anyone who may unjustly detain it, while the persons in whose favor the right is
required to be reserved in either case cannot perform any act whatsoever of disposal
or of recovery.
Article 975 states explicitly that the father or mother required by article 968 to
reserve the right may dispose of the property itself:
"Alienation of the property required by law to be reserved which may be made by
the surviving spouse after contracting a second marriage shall be valid only if at his
or her death no legitimate children or descendants of the first marriage survive,
without prejudice to the provisions of the Mortgage Law."

It thus appears that the alienation is valid, although not altogether effective, but
under a condition subsequent, to wit: "If at his or her death no legitimate children
or descendants of the first marriage survive."
If the title did not reside in the person holding the property to be reserved, his
alienation thereof would necessarily be null and void, as executed without a right to
do so and without a right which he could transmit to the acquirer. The law says that
the alienation subsists (to subsist is to continue to exist) "without prejudice to the
provisions of the Mortgage Law." Article 109 of this Law says:
"The possessor of property subject to conditions subsequent that are still
pending may mortgage or alienate it, provided always that he preserve the right of
the parties interested in said conditions by expressly reserving that right in the
registration."
In such case, the child or legitimate descendant of the first marriage in whose
favor the right is reserved cannot impugn the validity of the alienation so long- as
the condition subsequent is pending, that is, so long as the remarried spouse who
must reserve the right is alive, because it might easily happen that the person who
must reserve the right should outlive all the persons in whose favor the right is
reserved and then there would be no reason f or the condition subsequent that they
survive him, and, the object of the law having disappeared, the right required to be
reserved would disappear, and the alienation would not only be valid but also in
every way absolutely effective. Consequently, the alienation is valid when the right
required by law to be reserved to the children is respected; while the effects of the
alienation depend upon a condition, because it will or will not become definite, it
will continue to exist or cease to exist, according to circumstances. This is what the
law establishes with reference to the reservation of article 968, wherein the
legislator expressly directs that the surviving spouse who contracts a second
marriage shall reserve to the children or descendants of the first
marriageownership. Article 811 says nothing more than that the ascendant
must make the reservation.
Manresa, with his recognized ability, summarizes the subject under the
heading, "Rights and obligations during the existence of the right required by law to
be reserved," in these words:

"During the whole period between the constitution in legal form of the right
required by law to be reserved and the extinction thereof, the relatives within the
third degree, after the right that in their turn may pertain to them has
beenassured, have only an expectation, and therefore they do not even have the
capacity to transmit that.expectation to their heirs.
"The ascendant is in the first place a usufructuary who should use and enjoy the
things according to their nature, in the manner and form already set forth in
commenting upon the articles of the Code referring to use and usufruct.
"But since in addition to being the usufructuary he is, even though conditionally,
the owner in fee simple of the property, he can .dispose of it in the manner provided
in articles 974 and 976 of the same Code. Doubt arose also on this point, but
the Direccin General of the registries, in an opinion of June 25, 1892, declared that
articles 974 and 975, which are applicable by analogy, for they refer to property
reserved by law, reveal in the clearest manner the attitude of the legislator on this
subject, and the relatives within the third degree ought not to be more privileged in
the right reserved in article 811 than the children in the right reserved by article
975, chiefly for the reason that the right required to be reserved carries with it a
condition subsequent, and the property subject to those conditions can validly be
alienated in accordance with article 109 of the Mortgage Law, such alienation to
continue, pending fulfillment of the condition." (Civil Code, VI, 270.)
Another commentator corroborates the foregoing in every way. He says:
"The ascendant acquires that property with a condition subsequent, to wit,
whether or not there exist at the time of his death relatives within the third degree
of the descendant from whom they inherit in the line whence the property proceeds.
If such relatives exist, they acquire ownership of the property at the death of the
ascendant, If they do not exist, the ascendant can freely dispose thereof. If this is
true, since the possessor of property subject to conditions subsequent can alienate
and encumber it, the ascendant may alienate the property required by law to be
reserved, but he will alienate what he has and nothing more because no one can
give what does not belong to him, and the acquirer will therefore receive a limited
and revocable title. The relatives within the third degree will in their turn have an
expectation to the property while the ascendant lives, an expectation that cannot be
transmitted to their heirs, unless these are also within the third degree. After the

person who is required by law to reserve the right has died, the relatives may
rescind the alienation of the realty required by law to be reserved and they will
acquire it and all the rest that has the same character in Complete ownership, in fee
simple, because the condition and the usufruct have been terminated by the death
61 the usufructuary." (Morell, Estudios sobre bienes reservables, P304, 305.)
The conclusion is that the person required by article 811 to reserve the right has,
beyond any doubt at all, the rights of use and usufruct He has, moreover, for the
reasons set forth, the legal title and dominion, although under a condition
subsequent. Clearly he has, under an express provision of the law, the right to
dispose of the property reserved, and to dispose of is to alienate, although under a
condition'. He has the right to recover it, because he is the one who possesses or
should possess it and have title to it, although a limited and revocable one. In a
word, the legal title and dominion, even though under a condition, reside in him
while he lives. After the right required by law to be reserved has been assured, he
can do anything that a genuine owner can do.
On the other hand, the relatives within the third degree in whose favor the right
is reserved cannot dispose of the property, first because it is in no way, either
actually, constructively or formally, in their possession; and, moreover, because they
have no title of ownership or of fee simple which they can transmit to another, on
the hypothesis that only when the person who must reserve the right should die
before them will they acquire it, thus creating a fee simple, and only then will they
take their place in the succession of the descendant of whom they are relatives
within the third degree, that is to say, a second contingent place in said legitimate
succession in the fashion of aspirants to a possible future legacy. If any of the
persons in whose favor the right is reserved should, after their right has been
assured in the registry, dare to dispose of even nothing more than the fee simple of
the property to be reserved his act would be null and void, for, as was definitely
decided in the decision on appeal of December 30, 1897, it is impossible to determine
the part "that might pertain therein to the relative at the time he exercised the
right, because in view of. the nature and scope of the right required by law to be
reserved the extent of his right cannot be foreseen, for it may disappear by his dying
before the person required to reserve it, just as it may even become absolute should
that person die."

Careful consideration of the matter forces the conclusion that no act of

disposal inter vivos of the person required by law to reserve the right can be
impugned by him in whose favor it is reserved, because such person has all,
absolutely all, the rights inherent in ownership, except that the legal title is
burdened with a condition that the third party acquirer may ascertain from the
registry in order to know that he is acquiring a title subject to a condition
subsequent. In conclusion, it seems to us that only an act of disposal mortis causain
favor of persons other than relatives within the third degree of the descendant from
whom he got the property to be reserved must be prohibited to him, because this
alone has been the object of the law: "To prevent persons outside a family from
securing, by some special accident of life, property that would otherwise have
remained therein." (Decision of December 30, 1897.)
Practically, even in the opinion of those who reduce the person reserving the
right to the condition of a mere usufructuary, the person in whose favor it must be
reserved cannot attack the alienation that may be absolutely made of the property
the law requires to be reserved, in the present case, that which the applicant has
made of the two parcels of land in question to a third party, because the conditional
alienation that is permitted her is equivalent to an alienation of the usufruct, which
is authorized by article 480 of the Civil Code, and, practically, use and enjoyment of
the property required by law to be reserved are all that the person who must
reserve it has during his lifetime, and in alienating the usufruct all the usefulness
of the thing would be transmitted in an incontrovertible manner. The question as to
whether or not she transmits the fee simple is purely academic, sine re, for it is not
real, actual and positive, as is the case of the institution of two heirs, one a
usufructuary and the other the owner, by the express wish of the predecessor in
interest.
If the person whom article 811 requires to reserve the right has all the rights
inherent in ownership, he can use, enjoy, dispose of and recover it; and if, in addition
to usufructuary, he is in fact and in law the real owner and can alienate it, although
under a condition, the whole question is reduced to the following terms:
Cannot the heir of the property required by law to be reserved, merely because a
condition subsequent is annexed to his right of disposal, himself alone register the
ownership of the property he has inherited, when the persons in whose favor the

reservation must be made agree thereto, provided that the right reserved to them in
the two parcels of land be recorded, as the law provides?
It is well known that the vendee underpacto de retracto acquires all the rights of
the vendor:
"The vendee substitutes the vendor in all his rights and actions." (Civil Code, art.
1511.)
If the vendor can register his title, the vendee can also register this same title
after he has once acquired it. This title, however, in its attribute of being disposable,
has a condition subsequent annexedthat the alienation the purchaser may make
will be terminated, if the vendor should exercise the right granted him by article
1507, which says:
"Conventional redemption shall take place when the vendor reserves to himself
the right to recover the thing sold : with ;the obligation to comply with article 1518,
and whatever more may have been agreed upon," that is, if he recovers the thing
sold by repaying the vendee the price of the sale and other expenses.
Notwithstanding this condition subsequent, it is a point not at all doubtful now that
the vendee may register his title in the same way as the owner of a thing mortgaged
that is to say, the latter with the consent of his creditor and the former with the
consent of the vendor. He may alienate the thing bought when the acquirer knows
very well from the title entered in the registry that he acquires a title revocable
after a fixed period, a thing much more certain and to be expected than the purely
contingent expectation of the person in whose favor is reserved a right to inherit
some day what another has inherited. The purposes of the law would be defeated in
not applying to the person who must make the reservation the provision therein
relative to the vendee under pacto de retracto,since the argument in his favor is the
more powerf ul and conclusive; ubi eadem ratio, eadem legis dispositio.
Therefore, we reverse the judgment appealed from, and in lieu thereof decide and
declare that the applicant is entitled to register in her own name the two parcels of
land which are the subject matter of the application, recording in the registration
the right required by article 811 to be reserved to either or both of the opponents,
Pablo Sablan and Basilio Sablan, should they survive her; without special finding as
to costs.

Torres, Mapa, Johnson, Carson, andTrent, JJ., concur.

Judgment reversed; registration ordered.
No. L-12957. March 24, 1961.
CONSTANCIO SIENES, ET AL., plaintiffs-appellants, vs. FIDEL ESPARCIA, ET
AL., defendants-appellees.
Succession; Reserva troncal; Reservor has legal title over property subject to a resolutory
condition.In reserva troncal the reservor has the legal title and dominion over the
reservable property but subject to a resolutory condition. He may alienate the same but
subject to the reservation, i.e., the rights acquired by the transferee are revoked upon the
survival of reservees at the time of death of the reservor.
Same; Eight

of

reservee

is

alienable,

subject

to

resolutory

condition.

The reservainstituted by law in favor of the heirs within the third degree belonging to the
line from which the reservable property came constitutes a real right which the reservee
may alienate and dispose of, although conditionally, the condition being that the alienation
would transfer ownership to the vendee only if and when the reservee survives the reservor.
When reservee becomes exclusive owner.-Upon the death of the reservor, there being a
surviving reservee, the reservable property passes in exclusive ownership to the latter.

APPEAL from a judgment of the Court of First Instance of Negros Oriental.

Rosal,J.
The facts are stated in the opinion of the Court.
Proceso R. Remollo for plaintiffs-appellants.
Leonardo D. Mancao for defendants-appellees.
DIZON, J.:
Appellants commenced this action below to secure judgment (1) declaring null and
void the sale executed by Paulina and Cipriana Yaeso in favor of appellees, the

spouses Fidel Esparcia and Paulina Sienes; (2) ordering the Esparcia spouses to
reconvey to appellants Lot 3368 of the Cadastral Survey of Ayuquitan (now Amlan),
Oriental Negros; and (3) ordering all the appellees to pay, jointly and severally, to
appellants the sum of P500.00 as damages, plus the costs of suit. In their answer
appellees disclaimed any knowledge or information regarding the sale allegedly
made on April 20, 1951 by Andrea Gutang in favor of appellants and alleged that, if
such sale was made, the same was void on the ground that Andrea Gutang had no
right to dispose of the property subject matter thereof. They further alleged that
said property had never been in possession of appellants, the truth being that
appellees, as owners, had been in continuous possession thereof since the death of
Francisco Yaeso. By way of affirmative defense and counterclaim, they further
alleged that on July 30, 1951, Paulina and Cipriana Yaeso, as the only surviving
heirs of Francisco Yaeso, executed a public instrument of sale in favor of the spouses
Fidel Esparcia and Paulina Sienes, the said sale having been registered together
with an affidavit of adjudication executed by Paulina and Cipriana on July 18, 1951,
as sole surviving heirs of the aforesaid deceased; that since then the Esparcias had
been in possession of the property as owners.
After trial upon the issues thus joined, the lower court rendered judgment as
follows:
IN VIEW OF ALL THE FOREGOING, judgment is hereby rendered declaring (1) that the
sale of Lot No. 3368 made by Andrea Gutang to the plaintiff spouses Constancio Sienes and
Genoveva Silay is void, and the reconveyance prayed for by them is denied; (2) that the sale
made by Paulina and Cipriana Yaeso in favor of defendants Fidel Esparcia and Paulina
Sienes involving the same lot is also void, and they have no valid title thereto; and (3) that
the reservable property in question is part of and must be reverted to the estate of Cipriana
Yaeso, the lone surviving relative and heir of Francisco Yaeso at the death of Andrea
Gutang as of December 13, 1951. No pronouncement as to the costs."

From the above decision the Sienes spouses interposed the present appeal, their
principal contentions being, f irstly, that the lower court erred in holding that Lot
3368 of the Cadastral Survey of Ayuquitan was a reservable property; secondly, in

annulling the sale of said lot executed by Andrea Gutang in their favor; and lastly,
in holding that Cipriana Yaeso, as reservee, was entitled to inherit said land.
There is no dispute as to the following facts:
Lot 3368 originally belonged to Saturnino Yaeso. With his first wife, Teresa
Ruales, he had four children named Agaton, Fernando, Paulina and Cipriana, while
with his second wife, Andrea Gutang, he had an only son named Francisco.
According to the cadastral records of Ayuquitan, the properties left by Saturnino
upon his deaththe date of which does not clearly appear of recordwere left to his
children as follows: Lot 8366 to Cipriana, Lot 3367 to Fernando, Lot 3375 to Agaton,
Lot 3377 (southern portion) to Paulina, and Lot 3368 (western portion) to Francisco.
As a result of the cadastral proceedings, Original Certificate of Title No. 10275
covering Lot 3368 was issued in the name of Francisco. Because Francisco was a
minor at the time, his mother administered the property for him, declared it in her
name for taxation purposes (Exhs. A & A-1), and paid the taxes due thereon (Exhs.
B, C, C-1 & C-2). When Francisco died on May 29, 1932 at the age of 20, single and
without any descendant, his mother, as his sole heir, executed the public instrument
Exhibit F entitled EXTRAJUDICIAL SETTLEMENT AND SALE whereby, among
other things, for and in consideration of the sum of P800.00, she sold the property in
question to appellants. When thereafter said vendees demanded from Paulina Yaeso
and her husband Jose Esparcia, the surrender of Original Certificate of Title No.
10275which was in their possessionthe latter refused, thus giving rise to the
filing of th corresponding motion in the cadastral record No. 507. The same,
however, was denied (Exhs. 8&9).
Thereafter, or more specifically, on July 30, 1951, Cipriana and Paulina Yaeso,
the surviving half-sisters of Francisco, and who as such had declared the property
in their name, on January 1, 1951 executed a deed of sale in favor of the spouses
Fidel Esparcia and Paulina Sienes (Exh. 2) who, in turn, declared it in their name
for tax purposes and thereafter secured the issuance in their name of Transfer
Certificate of Title No. T-2141 (Exhs. 5 & 5-A).

As held by the trial court, it is clear upon the facts already stated, that the land
in question was reservable property. Francisco Yaeso inherited it by operation o
law from his father Saturnino, and upon Francisco's death, unmarried and without
descendants, it was inherited, in turn, by his mother, Andrea Gutang. The latter
was, therefore, under obligation to reserve it for the benefit of relatives within the
third degree belonging to the line from which said property came, if any survived
her. The record discloses in this connection that Andrea Gutang died on December
13, 1951, the lone reservee surviving her being Cipriana Yaeso who died only on
January 13, 1952 (Exh. 10).
In connection with. reservable property, the weight of opinion is that the reserve
creates two resolutory conditions, namely, (1) the death of the ascendant obliged to
reserve and (2) the survival, at the time of his death, of relatives within the third
degree belonging to the line from which the property came (6 Manresa 268-269; 6
Sanchez Roman 1934). This Court has held in connection with this matter that the
reservista has the legal title and dominion to the reservable property but subject to
a resolutory condition; that he is like a life usufructuary of the reservable property;
that he may alienate the same but subject to reservation, said alienation
transmitting only the revocable and conditional ownership of the reservista, the
rights acquired by the transferee being revoked or resolved by the survival of
reservatarios at the time of the death of the reservista (Edroso vs. Sablan, 25 Phil.
295; Lunsod vs. Ortega, 46 Phil. 664; Florentino vs. Florentino, 40 PhiL 480;
and Director of Lands vs. Aguas, 65 Phil. 279).
The sale made by Andrea Gutang in favor of appellees was, therefore, subject to
the condition that the vendees would definitely acquire ownership, by virtue of the
alienation, only if the vendor died without being survived by any person entitled to
the reservable property. Inasmuch as when Andrea Gutang died, Cipriana Yaeso
was still alive, the conclusion becomes inescapable that the previous sale made by
the former in favor of appellants became of no legal effect and the reservable
property subject matter thereof passed in exclusive ownership to Cipriana.

On the other hand, it is also clear that the sale executed by the sisters Paulina
and Cipriana Yaeso in favor of the spouses Fidel Esparcia and Paulina Sienes was
subject to a similar resolutory condition. The reserva instituted by law in favor of
the heirs within the third degree belonging to the line from which the reservable
property came, constitutes a real right which the reservee may alienate and dispose
of, albeit conditionally, the condition being that the alienation shall transfer
ownership to the vendee only if and when the reservee survives the person obliged
to reserve. In the present case, Cipriana Yaeso, one of the reservees, was still alive
when Andrea Gutang, the person obliged to reserve, died, Thus the former became
the absolute owner of the reservable property upon Andrea's death. While it may be
true that the sale made by her and her sister prior to this event, became effective
because of the occurrence of the resolutory condition, we are not now in a position to
reverse the appealed decision, in so far as it orders the reversion of the property in
question to the Estate of Cipriana Yaeso, because the vendeesthe Esparcia
spousesdid not appeal therefrom.
WHEREFORE, the appealed decisionas above modifiedis affirmed, with
costs, and without prejudice to whatever action in equity the Esparcia spouses may
have against the Estate of Cipriana Yaeso for the reconveyance of the property in
question.
Bengzon, Actg, C.J., Padilla,Bautista Angelo, Labrador, Concepcion,Reyes,
J.B.L., Barrera and Paredes, JJ.,concur.
Decision modified.
[No. 14856. November 15, 1919.]
ENCARNACION FLORENTINO ET AL., plaintiffs and appellants,' vs.MERCEDES
FLORENTINO ET AL., defendants and appellees.
1. 1.RESERVABLE PROPERTY.The property proceeding from an ascendant or from
a brother of a deceased descendantwho may have acquired same by lucrative title
and from whom afterwards another ascendant of deceased will inheritis by law
invested with the character of reservable property in favor of said deceased's

relatives, within the third degree, of the line from whence such property proceeds.
(Art. 811 of the Civil Code.)
1. 2.ID.; WHEN IT LOSES THIS CHARACTER.The ascendant, who inherits
property of a reservable character from his deceased descendant who has a relative
within the third degree still living, is no more than a life usufructuary or a
fiduciary of said reservable property. But if, during the lifetime of the said
ascendant, all the relatives, within the third degree, of his predecessor in interest
should die or disappear, according to law the condition of reservation with which
the property had been burdened ceases to exist, and said property now becomes a
part of the legitimate legitime of the ascendant who had inherited same through
the death of those for whom it had been reserved (reservatarios).
1. 3.ID.; RIGHTS OF SUCCESSION.According to the order of succession prescribed
by law for legitimes, when there are relatives within the third degree of the
deceased descendant, the right of the relative's nearest reservative (reservatario) to
the property excludes that of the one more remote. Wherefore the property ought to
be handed over to said relative by the reservist (reservista), without it being
possible to allege a right of representation when he who attempts the same is not
comprehended within the third degree, among the predecessor-in-interest's
relatives. Inasmuch as the right conceded by the aforementioned article 811 of the
Civil Code is, in the highest degree, for the personal and exclusive benefit of the
persons pointed out by law, in no manner can there be included relatives of the
fourth and succeeding degrees, not recognized by law.
1. 4.ID. ; NATURE OF.Reservable property neither comes nor falls under the
absolute dominion of the ascendant who inherits and receives same from his
deceased descendant and; therefore, neither forms part of his estate nor integrates
the legitime of his forced heirs. It becomes the ascendant's own property, received
as an inheritance, only under the condition that all of the deceased descendant's
relatives, within the third degree, shall have died. Under these circumstances the
property, transmitted by the predecessor in interest to his ascendant, has lost its
character of reservation.
1. 5.ID. ; ID.Reservable property left, through a will or otherwise, by the death of
ascendant (reservista)together with his own property in favor of another of his
descendants as forced heir, forms no part of the latter's lawful inheritance nor of
the legitime, for the reason that, as said property continued to be reservable, the
heir receiving same as an inheritance from his ascendant has the strict obligation
of its delivery to the relatives, within the third degree, of the predecessor in

interest, without prejudicing the right of the heir to an aliquot part of property, if
he has at the same time the right of areservatario.

APPEAL from an order of the Court of First Instance of Ilocos Sur. Causing, J.
The facts are stated in the opinion of the court.
Ramon Querubin, Simeon Ramos andOrense & Vera, for appellants.
Vicente Foz, Jose Singsong Tongsonand Angel Encarnacion for appellees.
TORRES, J.:
On January 17, 1918, counsel for Encarnacion (together with her husband Simeon
Serrano), Gabriel, Magdalena, Ramon, Miguel, Victorino, and Antonio of the
surname Florentino; for Miguel Florentino, guardian ad litem of the minor Rosario
Florentino; for Eugenio Singson, the father and guardian ad litem of Emilia, Jesus,
Lourdes, Caridad, and Dolores of the surname Singson y Florentino; and for
Eugenio Singson, guardian of the minors Jose and Asuncion Florentino, filed a
complaint in the Court of First Instance of Ilocos Sur, against Mercedes Florentino
and her husband, alleging as follows:
That Apolonio Isabelo Florentino II married the first time Antonia Faz de Leon;
that during the marriage he begot nine children called Jose, Juan, Maria,
Encarnacion, Isabel, Espirita, Gabriel, Pedro, and Magdalena of the surname
Florentino y de Leon; that on becoming a widower he married the second time
Severina Faz de Leon with whom he had two children, Mercedes and Apolonio III of
the surname Florentino y de Leon; that Apolonio Isabelo Florentino II died on
February 13, 1890; that he was survived by his second wife Severina Faz de Leon
and the ten children first above mentioned; that his eleventh son, Apolonio III, was
born on the following 4th of March 1890.
That of the deceased Apolonio Isabelo's aforementioned eleven children,Juan,
Maria and Isabel died single,without leaving any ascendants or descendants; that
Ramon, Miguel, Victorino, Antonio, and Rosario are the legitimate children of the
deceased Jose Florentino who was one of the children of the deceased Apolonio
Isabelo; that Emilia, Jesus, Lourdes, Caridad, and Dolores are the legitimate
children of Espirita Florentino, now deceased, and her husband Eugenio Singson;

that Jose and Asuncion are the children of Pedro Florentino, another son of the
deceased Apolonio Isabelo Florentino.
That on January 17 and February 13, 1890, Apolonio Isabelo Florentino executed
a will before the notary public of Ilocos Sur, instituting as his universal heirs his
aforementioned ten children, the posthumos Apolonio III and his widow Severina
Faz de Leon; that he declared, in one of the paragraphs of said will, all his property
should be divided among all of his children of both marriages.
That, in the partition of the said testator's estate, there was given to Apolonio
Florentino III, his posthumos son, the property marked with the letters A, B, C, D,
E, and F in the complaint, a gold rosary, pieces of gold, of silver and of table service,
livestock, palay, some personal property and other objects mentioned in the
complaint.
That Apolonio Florentino III, the posthumos son of the second marriage, died in
1891; that his mother, Severina Faz de Leon, succeeded to all his property described
in the complaint; that the widow, Severina Faz de Leon died on November 18, 1908,
leaving a will instituting as her universal heiress her only living daughter,
Mercedes Florentino; that, as such heir, said daughter took possession of all the
property left at the death of her mother, Severina Faz de Leon; that among same is
included the property, described in the complaint, which the said Severina Faz de
Leon inherited from her deceased son, the posthumos Apolonio, as reservable
property; that, as a reservist, the heir of the said Mercedes Florentino deceased had
been gathering for herself alone the fruits of lands described in the complaint; that
each and every one of the parties mentioned in said complaint is entitled to oneseventh of the fruits of the reservable property described therein, either by direct
participation or by representation, in the manner mentioned in paragraph 9 of the
complaint.
That several times the plaintiffs have, in an amicable manner, asked the
defendants to deliver their corresponding part of the reservable property; that
without any justifiable motive the defendants have refused and do refuse to deliver
said property or to pay for its value; that for nine years Mercedes Florentino has
been receiving, as rent for the lands mentioned, 360 bundles of palay at fifty pesos
per bundle and 90 bundles of corn at f our pesos per bundle; that thereby the
plaintiffs have suffered damages in the sum of fifteen thousand four hundred and

twenty-eight pesos and fifty-eight centavos, in addition to three hundred and eight
pesos and fifty-eight centavos for the value of the fruits not gathered, of one
thousand pesos (P1,000) for the unjustifiable retention of the aforementioned
reservable property and for the expenses of this suit. Wherefore they pray it be
declared that all the foregoing property is reservable property; that the plaintiffs
had and do have a right to the same, in the quantity and proportion mentioned in
the aforementioned paragraph 9 of the complaint; "that the defendants Mercedes
Florentino and her husband be ordered to deliver to the plaintiffs their share of the
property in question, of the palay and of the corn above mentioned, or their value;
and that they be condemned to pay the plaintiffs the sum of one thousand pesos
(P1,000) together with the costs of this instance.
To the preceding complaint counsel for the defendants demurred, alleging that
the cause of action is based on the obligation of the widow Severina Faz de Leon to
reserve the property she inherited from her deceased son Apolonio Florentino y Faz
de Leon who, in turn, inherited same from his father Apolonio Isabelo Florentino;
that, there being no allegation to the contrary, it is to be presumed that the widow
Severina Faz de Leon did not remarry after the death of this husband nor have any
natural child; that the right claimed by the plaintiffs is not that mentioned in article
968 and the following articles, but that established in article 811 of the Civil Code;
that the object of the provisions of the aforementioned articles is to avoid the
transfer of said reservable property to those extraneous to the family of the owner
thereof; that if the property inherited by the widow Severina Faz de Leon from her
deceased son Apolonio Florentino y Faz de Leon (property which originated from his
father and her husband) has all passed into the hands of the defendant, Mercedes
Florentino y Encarnacion, a daughter of the common ancestor's second marriage
(said Apolonio Isabelo Florentino with the deceased Severina Faz de Leon) it is
evident that the property left at the death of the posthumos son Apolonio Florentino
y Faz de Leon did not pass after the death of his mother Severina, his legitimate
heirs as an ascendant, into the hands of strangers; that said property having been
inherited by Mercedes Florentino y Encarnacion from her mother (Severina), article
811 of the Civil Code is absolutely inapplicable to the present case because, when
the defendant Mercedes, by operation of law, entered into and succeeded to, the
possession, of the property lawfully inherited from. her mother Severina Faz de
Leon, said property had, while in the possession of her mother, lost the character of
reservable propertythere being a legitimate daughter of Severina Faz de Leon
with the right to succeed her in all her rights, property and actions; that the

restraints of the law whereby said property may not passed into the possession of
strangers are void, inasmuch as the said widow had no obligation to reserve same,
as Mercedes Florentino is a forced heiress of her mother Severina Faz de Leon; that,
in the present case, there is no property reserved for the plaintiffs since there is a
forced heiress, entitled to the property left by the death of the widow Severina Faz
de Leon who never remarried; that the obligation to reserve is secondary to the duty
of respecting the legitime; that in the instant case, the widow Severina Faz de Leon
was in duty bound to respect the legitime of her daughter Mercedes, the defendant;
that her obligation to reserve the property could not be fulfilled to the prejudice of
the legitime which belongs to her forced heiress, citing in support of these
statements the decision of the supreme court of Spain of January 4, 1911; that,
finally, the application of article 811 of the Civil Code In favor of the plaintiffs would
presuppose the exclusion of the defendant from her right to succeed exclusively to
all the property, rights and actions left by her legitimate mother, altho the said
defendant has a better right than the plaintiffs; and that there would be injustice if
the property claimed be adjudicated to the plaintiffs, as well as a violation of section
5 of the Jones Law which invalidates any law depriving any person of an equal
protection. Wherefore they prayed that the demurrer be sustained, with costs
against the plaintiffs.
After the hearing of the demurrer, on August 22, 1918, the judge absolved the
defendants from the complaint and condemned the plaintiffs to pay the costs.
Counsel for the plaintiffs excepted to this order, moved to vacate it and to grant
them a new trial; said motion was overruled; the plaintiffs excepted thereto and filed
the corresponding bill of exceptions which was allowed, certified and forwarded to
the clerk of this court.
On appeal the trial judge sustained the demurrer of the defendants to the
complaint of the plaintiffs, but, instead of ordering- the latter to amend their
complaint within the period prescribed by the rulesundoubtedly believing that the
plaintiffs could not alter nor change the facts constituting the cause of action, and
that, as both parties were agreed as to the facts alleged in the complaint as well as
in the demurrer, every question reduced itself to one of the law, already submitted
to the decision of the courtthe said judge, disregarding the ordinary procedure
established by law, decided the case by absolving the defendants from the complaint
and by condemning the plaintiffs to pay the costs of the instance.

There certainly was no real trial, inasmuch as the defendants, instead of

answering the complaint of the plaintiffs, confined themselves to filing a demurrer
based on the ground that the facts alleged in the complaint do not constitute a cause
of action. However, the judge preferred to absolve the defendants, thereby making
an end to the cause, instead of dismissing the same, because undoubtedly he
believed, in view of the controversy between the parties, that the arguments
adduced to support the demurrer would be the same which the defendants would
allege in their answerthose dealing with a mere question of law which the courts
would have to decideand that, the demurrer having been sustained, if the
plaintiffs should insistthey could do no lessupon alleging the same facts as
those set out in their complaint and if another demurrer were afterwards set up, he
would be obliged to dismiss said complaint with costs against the plaintiffsin spite
of being undoubtedly convinced in the instant case that the plaintiffs absolutely lack
the right to bring the action stated in their complaint.
Being of the opinion that the emendation of the indicated defects is not necessary
as in this case what has been done does not prejudice the partiesthe appellate
court will now proceed to decide the suit according to its merits, as found in the
record and to the legal provisions applicable to the question of law in controversy so
that unnecessary delay and greater expense may be avoided, inasmuch as, even if
all the ordinary proceedings be followed, the suit would be subsequently decided in
the manner and terms that it is now decided in the opinion thoughtfully and
conscientiously formed for its determination.
In order to decide whether the plaintiff's are or are not entitled to invoke, in their
favor, the provisions of article 811 of the Civil Code, and whether the same article is
applicable to the question of law presented in this suit, it is necessary to determine
whether the property enumerated in paragraph 5 of the complaint is of the nature
of reservable property; and, if so, whether in accordance with the provision of the
Civil Code in article 811, Severina Faz de Leon (the widow of the deceased Apolonio
Isabelo Florentino) who inherited said property from her son Apolonio Florentino III
(born after the death of his father Apolonio Isabelo) had the obligation to preserve
and reserve same for the relatives, within the third degree, of her aforementioned
deceased son Apolonio III.
The above mentioned article reads:

"Any ascendant who inherits from his descendant any property acquired by the
latter gratuitously from some other ascendant, or from a brother or sister, is obliged
to reserve such of the property as he may have acquired by operation of law for the
benefit of relatives within the third degree belonging to the line from which such
property came."
During the marriage of Apolonio Isabelo Florentino II and Severina Faz de Leon
two children were born, namely the defendant Mercedes Florentino and Apolonio
Florentino III (born after the death of his father). At the death of Apolonio Isabelo
Florentino under a will, his eleven children succeeded to the inheritance he left, one
of whom, the posthumos son Apolonio III, was given, as his share, the
aforementioned property enumerated in the complaint. In 1891 the said posthumos
son Apolonio Florentino III died and was succeeded by his legitimate mother
Severina Faz de Leon, who inherited the property he left and who on dying,
November 18, 1908, instituted by will as her sole heiress her surviving daughter,
Mercedes Florentino, the defendant herein, who took possession of all property left
by her father, same constituting the inheritance. Included in said inheritance is the
property, specified in paragraph 5 of the complaint, which had been inherited by the
posthumos son Apolonio Florentino III from his father Apolonio Isabelo Florentino,
and which, at the death of the said posthumos son, had in turn been inherited by his
mother, Severina Faz de Leon. Even if Severina left in her will said property,.
together with her own, to her only daughter and forced heiress, Mercedes
Florentino, nevertheless this property had not lost its reservable nature inasmuch
as it originated from the common ancestor of the litigants, Apolonio Isabelo; was
inherited by his son Apolonio III; was transmitted by same (by operation of law) to
his legimate mother and ascendant, Severina Faz de Leon.
The posthumos son, Apolonio Florentino III, acquired the property, now claimed
by his brothers, by a lucrative title or by inheritance from his aforementioned
legitimate father, Apolonio Isabelo Florentino II. Although said property was
inherited by his mother, Severina Faz de Leon, nevertheless, she was in duty bound,
according to article 811 of the Civil Code, to reserve the property thus acquired for
the benefit of the relatives, within the third degree, of the line from which such
property came.
According to the provisions of law, ascendants do not inherit the reservable
property, but its enjoyment, use or trust, merely for the reason that said law

imposes the obligation to reserve and preserve same for certain designated persons
who, on the death of the said ascendantsreservists, (taking into consideration the
nature of the line from which such property came) acquire the ownership of said
property in fact and by operation of law in the same manner as forced heirs (because
they are also such}said property reverts to said line as long as the aforementioned
persons who, from the death of the ascendantreservists, acquire in fact the right
of reservatarios (persons for whom property is reserved), and are relatives, within
the third degree, of the descendant from whom the reservable property came.
Any ascendant who inherits from his descendant any property, while there are
living, within the third degree, relatives of the latter, is nothing but a life
usufructuary or a fiduciary of the reservable property received. He is, however, the
legitimate owner of his own property which is not reservable property and which
constitutes his legitime, according to article 809 of the Civil Code. But if,
afterwards, all of the relatives, within the third degree, of the descendant (from
whom came the reservable property) die or disappear, the said property becomes
free property, by operation of law, and is thereby converted into the legitime of the
ascendant heir who can transmit it at his death to his legitimate successors or
testamentary heirs. This property has now lost its nature of reservable property,
pertaining thereto at the death of the relatives, called reservatarios, who belonged
within the third degree to the line f rom which such property came.
Following the order prescribed by law in legitimate succession, when there are
relatives of the descendant within the third degree, the right of the nearest relative,
called reservatario, over the property which the reservista (person holding it subject
to reservation) 'should return to him, excludes that of the one more remote. The
right of representation cannot be alleged when the one claming same as
a reservatario of the reservable property is not among the relatives within the third
degree belonging to the line from which such property came, inasmuch as the right
granted by the Civil Code in article 811 is in the highest degree personal and for the
exclusive benefit of designated persons who are the relatives, within the third
degree, of the person from whom the reservable property came. Therefore, relatives
of the fourth and the succeeding degrees can never be considered
asreservatarios, since the law does not recognize them as such.
In spite of what has been said relative to the right of representation on the part
of one alleging his right as reservatariowho is not within the third degree of

relationship, nevertheless there is right of representation on the part

ofreservatarios who are within the third degree mentioned by law, as in the case of
nephews of the deceased person from whom the reservable property came.
These reservatarios have the right to represent their ascendants (fathers and
mothers) who are the brothers of the said deceased person and relatives within the
third degree in accordance with article 811 of the Civil Code.
In this case it is conceded without denial by defendants, that the plaintiffs
Encarnacion, Gabriel and Magdalena are the legitimate children of the first
marriage of the deceased Apolonio Isabelo Florentino II; that Ramon, Miguel,
Ceferino, Antonio, and Rosario are both grandchildren of Apolonio Isabelo
Florentino II, and children of his deceased son, Jose Florentino; that the same have
the right to represent their aforementioned f ather, Jose Florentino; that Emilia,
Jesus, Lourdes, Caridad, and Dolores are the legitimate children of the deceased
Espirita Florentino, one of the daughters of the deceased Apolonio Isabelo
Florentino II, and represent the right of their aforementioned mother; and that the
other plaintiffs, Jose and Asuncion, have also the right to represent their legitimate
father Pedro Florentino, one of the sons of the aforementioned Apolonio Isabelo
Florentino II. It is a fact, admitted by both parties, that the other children of the
first marriage of the deceased Apolonio Isabelo Florentino II died without issue so
that this decision does not deal with them.
There are then seven "reservatarios" who are entitled to the reservable property left
at the death of Apolonio III; the posthumos son of' the aforementioned Apolonio
Isabelo II, to wit, his three children of his first marriageEncarnacion, Gabriel,
Magdalena; his three children, Jose, Espirita and Pedro who are represented by
their own twelve children respectively; and Mercedes Florentino, his daughter by a
second marriage. All of the plaintiffs are the relatives of the deceased posthumos
son, Apolonio Florentino III, within the third degree (four of whom being his
halfbrothers and the remaining twelve being his nephews as they are the children of
his three half-brothers). As the first four are his relatives within the third degree in
their own right and the other twelve are such by representation, all of them are
indisputably entitled asreservatarios to the property which came from the common
ancestor, Apolonio Isabelo, to Apolonio Florentino III by inheritance during his lifetime, and in turn by inheritance to his legitimate mother, Severina Faz de Leon,
widow of the aforementioned Apolonio Isabelo Florentino II.

In spite of the provision of article 811 of the Civil Code already cited, the trial
judge refused to accept the theory of the plaintiffs and, accepting that of the
defendants, absolved the latter from the complaint on the ground that said article is
absolutely inapplicable to the instant case, inasmuch as the def endant Mercedes
Florentino survived her brother, Apolonio III, from whom the reservable property
came and her mother, Severina Faz de Leon, the widow of her father, Apolonio
Isabelo Florentino II; that the defendant Mercedes, being the only daughter of
Severina Faz de Leon, is likewise her forced heiress; that when she inherited the
property left at the death of her mother, together with that which came from her
deceased brother Apolonio III, the fundamental object of article 811 of the Code was
thereby complied with, inasmuch as the danger that the property coming from the
same line might fall into the hands of strangers had been avoided; and that the hope
or expectation on the part of the plaintiffs of the right to acquire the property of the
deceased Apolonio III never did come into existence because there is a forced heiress
who is entitled to such property.
The judgment appealed from is also founded on the theory that article 811 of the
Civil Code does not destroy the system of legitimate succession and that the
pretension of the plaintiffs to apply said article in the instant case would be
permitting the reservable right to reduce and impair the forced legitime which
exclusively belongs to the defendant Mercedes Florentino, in violation of the precept
of article 813 of the same Code which provides that the testator cannot deprive his
heirs of their legitime, except in the cases expressly determined by law. Neither can
he impose upon it any burden, condition, or substitution of any kind whatsoever,
saving the provisions concerning the usufruct of the surviving spouse, citing the
decision of the Supreme Court of Spain of January 4, 1911.
The principal question submitted to the court for decision consists mainly in
determining whether the property left at the death of Apolonio III, the posthumos
son of Apolonio Isabelo II, was or was not invested with the character of reservable
property when it was received by his mother, Severina Faz de Leon.
The property enumerated by the plaintiffs in paragraph 5 of their complaint
came, without any doubt whatsoever, from the common ancestor Apolonio Isabelo II,
and when, on the death of Apolonio III without issue, the.same passed by operation
of law into the hands of his legitimate mother, Severina Faz de Leon, it became
reservable property, in accordance with the provision of article 811 of the Code, with

the o object that the same should not fall into the possession of persons other than
those comprehended within the order of succession traced by the law from Apolonio
Isabelo II, the source of said property. If this property was in fact clothed with the
character and condition of reservable property when Severina Faz de Leon inherited
same from her son Apolonio III, she did not thereby acquire the dominion or right of
ownership but only the right of usufruct or of fiduciary, with the necessary
obligation to preserve and to deliver or return it as such reservable property to her
deceased son's relatives within the third degree, among whom is her daughter,
Mercedes Florentino.
Reservable property neither comes, nor falls under, the absolute dominion of the
ascendant who inherits and receives same from his descendant, therefore it does not
form part of his own property nor become the legitimate of his forced heirs. It
becomes his own property only in case that all the relatives of his descendant shall
have died (reservista), in which case said reservable property losses such character.
With full right Severina Faz de Leon could have disposed in her will of all her
own property in favor of her only living daughter, Mercedes Florentino, as forced
heiress. But whatever provision there is in her will concerning the reservable
property received from her son Apolonio III, or rather, whatever provision will
reduce the rights of the otherreservatarios, the half brothers and nephews of her
daughter Mercedes, is unlawful, null and void, inasmuch as said property is not her
own and she has only the right of usufruct or of fiduciary, with the obligation to
preserve and to deliver same to the reservatarios, one of whom is her own daughter,
Mercedes Florentino.
It cannot reasonably be affirmed, founded upon an express provision of law, that
by operation of law all of the reservable property, received during lifetime by
Severina Faz de Leon from her son, Apolonio III, constitutes or forms part of the
legitime pertaining to Mercedes Florentino. If said property did not come to be the
legitimate and exclusive property of Severina Faz de Leon, her only legitimate and
forced heiress, the defendant Mercedes, could not inherit all by operation of law and
in accordance with the order of legitimate succession, because the other relatives of
the deceased Apolonio III, within the third degree, as well as herself are entitled to
such reservable property.

For this reason, in no manner can it be claimed that the legitime of Mercedes
Florentino, coming from the inheritance of her mother Severina Faz de Leon, has
been reduced and impaired; and the application of article 811 of the Code to the
instant case in no way prejudices the rights of the defendant Mercedes Florentino,
inasmuch as she is entitled to a part only of the reservable property, there being no
lawfull or just reason which serves as real foundation to disregard the right to
Apolonio III's other relatives, within the third degree, to participate in the
reservable property in question. As these relatives are at present living, claiming for
it with an indisputable right, we cannot find any reasonable and lawful motive why
their rights should not be upheld and why they should not be granted equal
participation with the defendant in the litigated property.
The claim that because of Severina Faz de Leon's forced heiress, her daughter
Mercedes, the property received from the deceased son Apolonio III lost the
character, previously held, of reservable property; and that the mother, the said
Severina, therefore, had no further obligation to reserve same for the relatives
within the third degree of the deceased Apolonio III, is evidently erroneous for the
reason that, as has been already stated, the reservable property, left in a will by the
aforementioned Severina to her only daughter Mercedes, does not form part of the
inheritance left by her death nor of the legitimate of the heiress Mercedes. Just
because she has a forced heiress, with a right to her inheritance, does not relieve
Severina of her obligation to reserve the property which she received from her
deceased son, nor did same lose the character of reservable property, held before
the reservatarios received same.
It is true that when Mercedes Florentino, the heiress of the reservistaSeverina,
took possession of the property in question, same did not pass into the hands of
strangers. But it is likewise true that the said Mercedes is not the
onlyreservataria. And there is no reason founded upon law and upon the principle of
justice why the other reservatarios, the other brothers and nephews, relatives within
the third degree in accordance with the precept of article 811 of the Civil Code,
should be deprived of portions of the property which, as reservable property, pertain
to them.
From the foregoing it has been shown that the doctrine announced by the
Supreme Court of Spain on January 4, 1911, for the violation of articles 811, 968
and consequently of the Civil Code is not applicable in the instant case.

Following the provisions of article 813, the Supreme Court of Spain held that the
legitime of the forced heirs cannot be reduced or impaired and said article is
expressly respected in this decision.
However, in spite of the efforts of the appellee to defend their supposed rights, it
has not been shown, upon any legal foundation, that the reservable property
belonged to, and was under the absolute dominion of, the reservista, there being
relatives within the third degree of the person. from whom same came; that said
property, upon passing into the hands of the forced heiress of the
deceasedreservista, formed part of the legitime of the former; and that the said
forced heiress, in addition to being areservataria, had an exclusive right to receive
all of said property and to deprive the other reservatarios, her relatives within the
third degree, of certain portions thereof.
Concerning the prayer in the complaint relative to the indemnity for damages
and the delivery of the fruits collected, it is not proper to grant the first for there is
no evidence of any damage which can give rise to the obligation of refunding same.
As to the second, the delivery of the fruits produced by the land forming the
principal part of the reservable property, the defendants are undoubtedly in duty
bound to deliver to the plaintiffs six-sevenths of the fruits or rents of the portions of
land claimed in the complaint, in the quantity expressed in paragraph 11 of the
same, from January 17, 1918, the date the complaint was filed; and the remaining
seventh part should go to the defendant Mercedes.
For the foregoing reasons it follows that with the reversal of the order of decision
appealed from we should declare, as we hereby do, that the aforementioned
property, inherited by the deceased Severina Faz de Leon from her .son Apolonio
Florentino III, is reservable property; that the plaintiffs, being relatives of the
deceased Apolonio III within the third degree, are entitled to six-sevenths of said
reservable property; that the defendant Mercedes is entitled to the remaining
seventh part thereof; that the latter, together with her husband Angel Encarnacion,
shall deliver to the plaintiffs, jointly, six-sevenths of the fruits or rents, claimed from
said portion of the land and, of the quantity claimed, from January 17, 1918, until
fully delivered; and that the indemnity for one thousand pesos (P1,000) prayed for in
the complaint is denied, without special findings as to the costs of both instances. So
ordered.

Arellano, C. J., Johnson, Araullo,Street, Malcolm, and Avancea, JJ.,concur.

Order reversed.

No. L-34395. May 19, 1981.

BEATRIZ L. GONZALES, petitioner, vs.COURT OF FIRST INSTANCE OF

MANILA (BRANCH V), BENITO F. LEGARDA, ROSARIO L. VALDEZ,
ALEJANDRO LEGARDA, TERESA LEGARDA, JOSE LEGARDA, BENITO
LEGARDA Y FERNANDEZ, CARMEN LEGARDA Y FERNANDEZ, FILOMENA
LEGARDA Y HERNANDEZ, CARMEN LEGARDA Y HERNANDEZ, ALEJANDRO
LEGARDA Y HERNANDEZ, RAMON LEGARDA Y HERNANDEZ, FILOMENA
LEGARDA Y LOBREGAT, JAIME LEGARDA Y LOBREGAT, CELSO LEGARDA Y
LOBREGAT, ALEJANDRO LEGARDA Y LOBREGAT, MA. TERESA LEGARDA Y
LOBREGAT, MA. ANTONIA LEGARDA Y LOBREGAT, JOSE LEGARDA Y
LOBREGAT, ROSARIO LEGARDA Y LOBREGAT, BENITO LEGARDA Y
LOBREGAT, EDUARDO LEGARDA Y LOBREGAT, TRINIDAD F. LEGARDA, and
the ESTATE OF DONA FILOMENA ROCKS DE LEGARDA, respondents.
Appeal; In an appeal under Republic Act No. 5440 only legal issues can be raised.In
an appeal under Republic Act No. 5440 only legal issues can be raised under undisputed
facts Since on the basis of the stipulated facts the lower court resolved only the issue of
whether the properties in question are subject to reserva troncal, that is the only legal issue
to be resolved in this appeal.
Property; Succession; Reserva
Troncal
explained.In reserva
troncal, (1)
a
descendant inherited or acquired by gratuitous title property from an ascendant or from a
brother or sister; (2) the same property is inherited by another ascendant or is acquired by
him by operation of law from the said descendant, and (3) the said ascendant should reserve
the said property for the benefit of relatives who are within the third degree from the
deceased descendant (prepositus) and who belong to the line from which the said property
came.
Same; Same; Same.So, three transmissions are involved: (1) a first transmission by
lucrative title (inheritance or donation) from an ascendant or brother or sister to the
deceased descendant; (2) a posterior transmission, by operation of law (intestate succession
or legitime) from the deceased descendant (causante de la reserva)in favor of another
ascendant, the reservor or reservista, which two transmissions precede the reservation, and
(3) a third transmission of the same property (in consequence of the reservation) from the
reservor to the reservees (reservatarios) or the relatives within the third degree from the
deceased descendant belonging to the line of the first ascendant, brother or sister of the
deceased descendant.
Same; Same; Same.The persons involved in reserva troncal are (1) the ascendant or
brother or sister from whom the property was received by the descendant by lucrative or

gratuitous title, (2) the descendant or prepositus (propositus) who received the property, (3)
the reservor (reservista), the other ascendant who obtained the property from
the prepositus by operation of law and (4) the reservee (reservatario) who is within the third
degree from the prepositusand who belongs to the line (linea o tronco) from which the
property came and for whom the property should be reserved by the reservor.
Same; Same; The reservor is a usufructuary of the reservable property and holds title
subject to a resolutory condition.The reservor has the legal title and dominion to the
reservable property but subject to the resolutory condition that such title is extinguished if
the reservor predeceased the reservee. The reservor is a usufructuary of the reservable
property. He may alienate it subject to the reservation. The transferee gets the revocable
and conditional ownership of the reservor. The transferees rights are revoked upon the
survival of the reservees at the time of the death of the reservor but become indefeasible
when the reservees predecease the reservor.
Same; Same; The reservee has only an inchoate right. He cannot impugn a conveyance
made by the reservor.On the other hand, the reservee has only an inchoate, expectant or
contingent right. His expectant right would disappear if he predeceased the reservor. It
would become absolute should the reservor predecease the reservee. The reservee cannot
impugn any conveyance made by the reservor but he can require that the reservable
character of the property be recognized by the purchaser.
Same; Same; A reservee may sell his right but may not renounce it.There is a holding
that the renunciation of the reservees right to the reservable property is illegal for being a
contract regarding future inheritance (Velayo Bernardo vs. Siojo, 58 Phil. 89, 96). And there
is a dictum that the reservees right is a real right which he may alienate and dispose of
conditionally. The condition is that the alienation shall transfer ownership to the vendee
only if and when the reservee survives the reservor (Sienes vs. Esparcia, 111 Phil. 349,
353).
Same; Same; Case at bar involve a reserva troncal.In the instant case, the properties
in question were indubitably reservable properties in the hands of Mrs. Legarda
Undoubtedly, she was a reservor. The reservation became a certainty when at the time of
her death the reservees or relatives within the third degree of theprepositus Filomena
Legarda were living or they survived Mrs. Legarda.
Same; Same; All reservees are equally entitled to share in reserva troncal.This Court
noted that, while it is true that by giving the reservable property to only one reservee it did
not pass into the hands of strangers, nevertheless, it is likewise true that the heiress of the
reservor was only one of the reservees and there is no reason founded upon law and justice

why the other reservees should be deprived of their shares in the reservable property (pp. 8945).

APPEAL from the decision of the Court of First Instance of Manila.

The facts are stated in the opinion of the Court.
AQUINO, J.:
Beatriz Legarda Gonzales appealed from the decision of the Court of First Instance
of Manila, dismissing her complaint for partition, accounting, reconveyance and
damages and holding, as not subject toreserva troncal, the properties which her
mother Filomena Roces inherited in 1943 from Filomena Legarda (Civil Case No.
73335). The facts are as follows: Benito Legarda y De la Paz, the son of Benito
Legarda y Tuason, died in Manila on June 17, 1933. He was survived by his widow,
Filomena Roces, and their seven children: four daughters named Beatriz, Rosario,
Teresa and Filomena and three sons named Benito, Alejandro and Jose.
On July 12, 1939, the real properties left by Benito Legarda y Tuason were
partitioned in three equal portions by his daughters, Consuelo and Rita, and the
heirs of his deceased son Benito Legarda y De la Paz who were represented by
Benito F. Legarda.
Filomena Legarda y Roces died intestate and without issue on March 19, 1943.
Her sole heiress was her mother, Filomena Roces Vda. de Legarda.
Mrs. Legarda executed on May 12, 1947 an affidavit adjudicating extrajudicially
to herself the properties which she inherited from her deceased daughter, Filomena
Legarda. The said properties consist of the following:
(a) Savings deposit in the National City Bank of New York with a credit balance of
P3,699.63.
(b) 1,429 shares of the Benguet Consolidated Mining Company and a 1/7 interest in
certain shares of the San Miguel Brewery, Tuason & Legarda, Ltd., Philippine Guaranty
Company, Insular Life Assurance Company and the Manila Times.
(c) 1/7 of the properties described in TCT Nos. 80226, 80237 to 80243 (7 titles), 80260,
80261 and 57512 of the Manila registry of deeds.

1/21st of the properties covered by TCT Nos. 48164, 84714, 48201, 48202, 48205, 48203,
48206, 48160 and 48192 of the Manila registry of deeds;
l/21st of the property described in TCT No. 4475 of the registry of deeds of Rizal, now
Quezon City; l/14th of the property described in TCT No. 966 of the registry of deeds of
Baguio;
l/7th of the lot and improvements at 127 Aviles described in TCT No. 41862 of the Manila
registry of deeds;
l/7th of the lots and improvements at 181 San Rafael described in TCT Nos. 50495 and
48161 of the Manila registry of deeds;
l/7th of the property described in TCT No. 48163 of the Manila registry of deeds
(Streets);
l/21st of the properties described in TCT Nos. 48199 and 57551 of the Manila registry of
deeds (Streets and Estero);
2/21st of the property described in TCT No. 13458 of the registry of deeds of Tayabas.

These are the properties in litigation in this case. As a result of the affidavit of
adjudication, Filomena Roces succeeded her deceased daughter Filomena Legarda
as co-owner of the properties heldproindiviso by her other six children.
Mrs. Legarda on March 6, 1953 executed two handwritten identical documents
wherein she disposed of the properties, which she inherited from her daughter, in
favor of the children of her sons, Benito, Alejandro and Jose (sixteen grandchildren
in all). The document reads:
A mis hijos.
Dispongo que se reparta a todos mis nietos, hijos de Ben, Mandu y Pepito, los bienes
que he heredado de mi difunta hija Filomena y tambien los acciones de la Destileria La
Rosario recientemente comprada a los hermanos Valdes Legarda.
De los bienes de mi hija Filomena se deducira un lote de terreno que yo he donada a las
Hijas de Jesus, en Guipit.
La casa No. 181 San Rafael, la cedo a mi hijo Mandu, solo la casa; proque ella esta
construida sobre terreno de los hermanos Legarda Roces.

(Sgd.) FILOMENA ROCES LEGARDA

6 Marzo 1953

During the period from July, 1958 to February, 1959 Mrs. Legarda and her six
surviving children partitioned the properties consisting of the one-third share in the
estate of Benito Legarda y Tuason which the children inherited in representation of
their father, Benito Legarda y De la Paz.
Mrs. Legarda died on September 22, 1967. Her will was admitted to probate as a
holographic will in the order dated July 16, 1968 of the Court of First Instance of
Manila in Special Proceeding No. 70878, Testate Estate of Filomena Roces Vda. de
Legarda. The decree of probate was affirmed by the Court of Appeals in Legarda vs.
Gonzales, CA-G.R. No. 43480-R, July 30, 1976.
In the testate proceeding, Beatriz Legarda Gonzales, a daughter of the testatrix,
filed on May 20, 1968 a motion to exclude from the inventory of her mothers estate
the properties which she inherited from her deceased daughter, Filomena, on the
ground that said properties are reservable properties which should be inherited by
Filomena Legardas three sisters and three brothers and not by the children of
Benito, Alejandro and Jose, all surnamed Legarda. That motion was opposed by the
administrator, Benito F. Legarda.
Without awaiting the resolution on that motion, Mrs. Gonzales filed on June 20,
1968 an ordinary civil action against her brothers, sisters, nephews and nieces and
her mothers estate for the purpose of securing a declaration that the said properties
are reservable properties which Mrs. Legarda could not bequeath in her holographic
will to her grandchildren to the ex elusion of her three daughters and her three sons
(SeePaz vs. Madrigal, 100 Phil. 1085).
As already stated, the lower court dismissed the action of Mrs. Gonzales. In this
appeal under Republic Act No. 5440 she contends in her six assignments of error
that the lower court erred in not regarding the properties in question as reservable
properties under article 891 of the Civil Code.
On the other hand, defendants-appellees in their six counter-assignments of
error contend that the lower court fired in not holding that Mrs. Legarda acquired
the estate of her daughter Filomena Legarda in exchange for her conjugal and

hereditary shares in the estate of her husband Benito Legarda y De la Paz and in
not holding that Mrs. Gonzales waived her right to the reservable properties and
that her claim is barred by estoppel, laches and prescription.
The preliminary issue raised by the private respondents as to the timeliness of
Mrs. Gonzales petition for review is a closed matter. This Court in its resolution of
December 16, 1971 denied respondents motion to dismiss and gave due course to
the petition for review.
In an appeal under Republic Act No. 5440 only legal issues can be raised under
undisputed facts. Since on the basis of the stipulated facts the lower court resolved
only the issue of whether the properties in question are subject to reserva
troncal, that is the only legal issue to be resolved in this appeal.
The other issues raised by the defendants-appellees, particularly those involving
factual matters, cannot be resolved in this appeal. As the trial court did not pass
upon those issues, there is no ruling which can be reviewed by this Court.
The question is whether the disputed properties are reservable properties under
article 891 of the Civil Code, formerly article 811, and whether Filomena Roces Vda.
de Legarda could dispose of them in her will in favor of her grandchildren to the
exclusion of her six children.
Did Mrs. Legarda have the right to convey mortis causa what she inherited from
her daughter Filomena to the reservees within the third degree and to bypass the
reservees in the second degreeor should that inheritance automatically go to the
reservees in the second degree, the six children of Mrs. Legarda?
As will hereinafter be shown that is not a novel issue or a question of first
impression. It was resolved in Florentino vs. Florentino, 40 Phil. 480. Before
discussing the applicability to this case of the doctrine in the Florentino case and
other pertinent rulings, it may be useful to make a brief discourse on the nature
ofreserva troncal, also called lineal familiar, extraordinaria o semi-troncal.
Much time, effort and energy were spent by the parties in their five briefs in
descanting on the nature of reserva troncal, which together with the reserva
viudal and reversion legal, was abolished by the Code Commission to prevent the
decedents estate from being entailed, to eliminate the uncertainty in ownership

caused by the reservation (which uncertainty impedes the improvement of the

reservable property) and to discourage the confinement of property within a certain
family for generations which situation allegedly leads to economic oligarchy and is
incompatible with the socialization of ownership.
The Code Commission regarded thereservas as remnants of feudalism which
fomented agrarian unrest. Moreover, the reservas, insofar as they penalize
legitimate relationship, is considered unjust and inequitable.
However, the lawmaking body, not agreeing entirely with the Code Commission,
restored the reserva troncal,a legal institution which, according to Manresa and
Castan Tobeas, has provoked questions and doubts that are difficult to resolve.
Reserva troncal is provided for in article 811 of the Spanish Civil Code, now
article 891, which reads:
ART. 811. El ascendiente que heredare de su descendiente bienes que este hubiese
adquirido por titulo lucrativo de otro ascendiente, o de un hermano, se halla obligado a
reservar los que hubiere adquirido por ministerio de la ley en favor de los parientes que
esten dentro del tercer grado y pertenezcan a la linea de donde los bienes proceden.
ART. 891. The ascendant who inherits from his descendant any property which the
latter may have acquired by gratuitous title from another ascendant, or a brother or sister,
is obliged to reserve such property as he may have acquired by operation of law for the
benefit of relatives who are within the third degree and who belong to the line from which
said property came.

In reserva troncal, (1) a descendant inherited or acquired by gratuitous title

property from an ascendant or from a brother or sister; (2) the same property is
inherited by another ascendant or is acquired by him by operation of law from the
said descendant, and (3) the said ascendant should reserve the said property for the
benefit of relatives who are within the third degree from the deceased descendant
(prepositus) and who belong to the line from which the said property came.
So, three transmissions are involved: (1) a first transmission by lucrative title
(inheritance or donation) from an ascendant or brother or sister to the deceased
descendant; (2) a posterior transmission, by operation of law (intestate succession or
legitime) from the deceased descendant (causante de la reserva) in favor of another

ascendant, the reservor or reservista, which two transmissions precede the

reservation, and (3) a third transmissions of the same property (in consequence of
the reservation) from the reservor to the reservees (reservatarios) or the relatives
within the third degree from the deceased descendant belonging to the line of the
first ascendant, brother or sister of the deceased descendant (6 Castan Tobeas.
Derecho Civil, Part I, 1960, 6th Ed., pp. 198-9).
If there are only two transmissions there is no reserva. Thus, where one Bonifacia
Lacerna died and her properties were inherited by her son, Juan Marbebe, upon the
death of Juan, those lands should be inherited by his half-sister, to the exclusion of
his maternal first cousins. The said lands are not reservable property within the
meaning of article 811 (Lacerna vs. Vda. de Corcino, 111 Phil. 872).
The persons involved in reserva troncal are (1) the ascendant or brother or sister
from whom the property was received by the descendant by lucrative or gratuitous
title, (2) the descendant orprepositus (propositus) who received the property, (3) the
reservor (reservista), the other ascendant who obtained the property from
the prepositus by operation of law and (4) the reservee (reservatario) who is within
the third degree from theprepositus and who belongs to the line (linea o tronco)from
which the property came and for whom the property should be reserved by the
reservor.
The reservees may be half-brothers and sisters (Rodriguez vs. Rodriguez, 101
Phil. 1098; Chua vs. Court of First Instance of Negros Occidental, L-29901, August
31, 1977, 78 SCRA 412). Fourth degree relatives are not included (Jardin vs.
Villamayor, 72 Phil. 392).
The rationale of reserva troncal is to avoid el peligro de que bienes poseidos
secularmente por una familia pasen bruscamente a titulo gratuito a manos
extraas por el azar de los enlaces y muertes prematuras, or impedir que, por un
azar de la vida, personas extraas a una familia puedan adquirir bienes que sin
aquel hubieran quedado en ella (6 Castan Tobenas, Derecho Civil, Part 1, 6th Ed.,
1980, p. 203; Padura vs. Baldovino, 104 Phil. 1065).
An illustration of reserva troncal is found in Edroso vs. Sablan, 25 Phil. 295. In
that case, Pedro Sablan inherited two parcels of land from his father Victoriano.

Pedro died in 1902, single and without issue. His mother, Marcelina Edroso,
inherited from him the two parcels of land.
It was held that the land was reservable property in the hands of Marcelina. The
reservees were Pablo Sablan and Basilio Sablan, the paternal uncles of Pedro
Sablan, the prepositus.Marcelina could register the land under the Torrens system
in her name but the fact that the land was reservable property in favor of her two
brothers-in-law, should they survive her, should be noted in the title.
In another case, it appears that Maria Aglibot died intestate in 1906. Her onehalf share of a parcel of conjugal land was inherited by her daughter, Juliana
Maalac. When Juliana died intestate in 1920, said one-half share was inherited by
her father, Anacleto Maalac who owned the other one-half portion.
Anacieto died intestate in 1942, survived by his second wife and their six
children. It was held that the said one-half portion was reservable property in the
hands of Anacleto Maalac and, upon his death, should be inherited by Leona
Aglibot and Evarista Aglibot, sisters of Maria and maternal aunts of Juliana
Maalac, who belonged to the line from which said onehalf portion came (Aglibot vs.
Maalac, 114 Phil. 964).
Other illustrations of reserva tronvalare found in Florentino vs. Florentino, 40
Phil. 480; Nieva and Alcala vs. Alcala and Deocampo, 41 Phil. 915; Maghirang and
Gutierrez vs. Halcita, 46 Phil. 551;Lunsod vs. Ortega, 46 Phil. 664; Dizon vs.
Galang, 48 Phil. 601, Riosa vs. Rocha,48 Phil. 737; Centeno vs. Centeno, 52 Phil.
322; Velayo Bernardo vs. Siojo, 58 Phil. 89; Director of Lands vs. Aguas, 63 Phil.
279; Fallorfina vs. Abille, CA 39 O.G. 1784.
The person from whom the degree should be reckoned is the descendant, or the
one at the end of the line from which the property came and upon whom the
property last revoked by descent. He is called the prepositus (Cabardo vs.
Villanueva. 44 Phil. 186, 190)
In the Cabardo case, one Cornelia Abordu inherited property from her mother,
Basilio Cabardo. When Cornelia died, her estate passed to her father, Lorenzo
Abordo. In his hands, the property was reservable property. Upon the death of
Lorenzo, the person entitled to the property was Rosa Cabardo, a maternal aunt of
Cornelia, who was her nearest relative within the third degree.

First cousins of the prepositus are in the fourth degree and are not reservees.
They cannot even represent their parents because representation is confined to
relatives within the third degree (Florentino vs. Florentino, 40 Phil. 480).
Within the third degree, the nearest relatives exclude the more remote subject to
the rule of representation. But the representative should be within the third degree
from the prepositus (Padura vs. Baldovino, 104 Phil. 1065).
Reserva troncal contemplates legitimate relationship. Illegitimate relationship
and relationship by affinity are excluded.
Gratuitous title or titulo lucrativorefers to a transmission wherein the recipient
gives nothing in return such as donation and succession (Cabardo vs. Villanueva, 44
Phil. 186, 189-190, citing 6 Manresa, Codigo Civil, 7th Ed., 1951, p. 360).
The reserva creates two resolutory conditions, namely, (1) the death of the
ascendant obliged to reserve and (2) the survival, at the time of his death, of
relatives within the third degree belonging to the line from which the property came
(Sienes vs. Esparcia, 111 Phil. 349, 353).
The reservor has the legal title and dominion to the reservable property but
subject to the resolutory condition that such title is extinguished if the reservor
predeceased the reservee. The reservor is a usufructuary of the reservable property.
He may alienate it subject to the reservation. The transferee gets the revocable and
conditional ownership of the reservor. The transferees rights are revoked upon the
survival of the reservees at the time of the death of the reservor but become
indefeasible when the reservees predecease the reservor. (Sienes vs. Esparcia, 111
Phil. 349, 353;Edroso vs. Sablan, 25 Phil. 295: Lunsod vs. Ortega, 46 Phil.
664; Florentino vs. Florentino, 40 Phil. 480; Director of Lands vs. Aguas, 63 Phil.
279.) The reservors title has been compared with that of the vendee a retro in
a pacto de retro sale or to a fideicomiso conditional.
The reservors alienation of the reservable property is subject to a resolutory
condition, meaning that if at the time of the reservors death, there are reservees,
the transferee of the property should deliver it to the reservees. If there are no
reservees at the time of the reservors death, the transferees title would become
absolute. (Lunsod vs. Ortega, 46 Phil. 664; Gueco vs. Lacson,118 Phil. 944; Nono vs.
Nequia, 93 Phil. 120).

On the other hand, the reservee has only an inchoate, expectant or contingent
right. His expectant right would disappear if he predeceased the reservor. It would
become absolute should the reservor predecease the reservee.
The reservee cannot impugn any conveyance made by the reservor but he can
require that the reservable character of the property be recognized by the purchaser
(Riosa vs. Rocha, 48 Phil. 737;Edroso vs. Sablan, 25 Phil. 295, 312-3;Gueco vs.
Lacson, 118 Phil. 944).
There is a holding that the renunciation of the reservees right to the reservable
property is illegal for being a contract regarding future inheritance (Velayo
Bernardo vs. Siojo, 58 Phil. 89, 96).
And there is a dictum that the reservees right is a real right which he may
alienate and dispose of conditionally. The condition is that the alienation shall
transfer ownership to the vendee only if and when the reservee survives the
reservor (Sienes vs. Esparcia, 111 Phil. 349, 353).
The reservatario receives the property as a conditional heir of the descendant
(prepositus), said property merely reverting to the line of origin from which it had
temporarily and accidentally strayed during the reservistas lifetime. The authorities
are all agreed that there being reservatarios that survive thereservista, the latter
must be deemed to have enjoyed no more than a life interest in the reservable
property. (J. J.B.L. Reyes in Cano vs. Director of Lands, 105 Phil. 1, 5.)
Even during the reservistas lifetime, thereservatarios, who are the ultimate
acquirers of the property, can already assert the right to prevent the reservistafrom
doing anything that might frustrate their reversionary right, and, for this purpose,
they can compel the annotation of their right in the registry of property even while
the reservista is alive (Ley Hipotecaria de Ultramar, Arts. 168, 199;Edroso vs.
Sablan, 25 Phil. 295).
This right is incompatible with the mere expectancy that corresponds to the
natural heirs of the reservista. It is likewise clear that the reservable property is no
part of the estate of thereservista who may not dispose of them (it) by will, so long as
there are reservatarios existing (Arroyo vs. Gerona,58 Phil. 226, 237).

The latter, therefore, do not inherit from the reservista but from the
descendant prepositus, of whom thereservatarios are the heirs mortis causa,subject
to the condition that they must survive the reservista. (Sanchez Roman, Vol. VI,
Tomo 2, p. 286; Manresa, Commentaries, Vol. 6, 6th Ed., pp. 274, 310, cited
by J. J.B.L. Reyes in Padura vs. Baldovino, L-11960, December 27, 1958, 104 Phil.
1065).
Hence,
upon
the reservistas death,
thereservatario nearest
to
the prepositusbecomes, automatically and by operation of law, the owner of the
reservable property. (Cano vs. Director of Lands,105 Phil. 1, 5.)
In the instant case, the properties in question were indubitably reservable
properties in the hands of Mrs. Legarda. Undoubtedly, she was a reservor. The
reservation became a certainty when at the time of her death the reservees or
relatives within the third degree of theprepositus Filomena Legarda were living or
they survived Mrs. Legarda.
So, the ultimate issue in this case is whether Mrs. Legarda, as reservor, could
convey the reservable properties by will or mortis causa to the reservees within
the third degree (her sixteen grandchildren) to the exclusion of the reservees in
the second degree, her three daughters and three sons.
As indicated at the outset, that issue is already res judicata or cosa juzgada.
We hold that Mrs. Legarda could not convey in her holographic will to her sixteen
grandchildren the reservable properties which she had inherited from her daughter
Filomena because the reservable properties did not form part of her estate (Cabardo
vs. Villanueva, 44 Phil. 186, 191). The reservor cannot make a disposition mortis
causa of the reservable properties as long as the reservees survived the reservor.
As repeatedly held in the Cano andPadura cases, the reservees inherit the
reservable properties from the prepositus,not from the reservor.
Article 891 clearly indicates that the reservable properties should be inherited by
all the nearest relatives within the third degree from the prepositus who in this case
are the six children of Mrs. Legarda. She could not select the reservees to whom the
reservable property should be given and deprive the other reservees of their share
therein.

To allow the reservor in this case to make a testamentary disposition of the

reservable properties in favor of the reservees in the third degree and, consequently,
to ignore the reservees in the second degree would be a glaring violation of article
891. That testamentary disposition cannot be allowed.
We have stated earlier that this case is governed by the doctrine of Florentino vs.
Florentino, 40 Phil. 480, a similar case, where it was ruled:
Reservable property left, through a will or otherwise, by the death of ascendant (reservista)
together with his own property in favor of another of his descendants as forced heir, forms
no part of the latters lawful inheritance nor of the legitime, for the reason that, as said
property continued to be reservable, the heir receiving the same as an inheritance from his
ascendant has the strict obligation of its delivery to the relatives, within the third degree, of
the predecessor in interest (prepositus), without prejudicing the right of the heir to an
aliquot part of the property, if he has at the same time the right of
a reservatario (reservee).

In the Florentino case, it appears that Apolonio Florentino II and his second wife
Severina Faz de Leon begot two children, Mercedes and Apolonio III. These two
inherited properties from their father. Upon Apolonio IIIs death in 1891, his
properties were inherited by his mother, Severina, who died in 1908. In her will, she
instituted her daughter Mercedes as heiress to all her properties, including those
coming from her deceased husband through their son, Apolonio III.
The surviving children, begotten by Apolonio II with his first wife Antonia Faz de
Leon and the descendants of the deceased children of his first marriage, sued
Mercedes Florentino for the recovery of their share in the reservable properties,
which Severina de Leon had inherited from Apolonio III, which the latter had
inherited from his father Apolonio II and which Severina willed to her daughter
Mercedes.
Plaintiffs theory was that the said properties, as reservable properties, could not
be disposed of in Severinas will in favor of Mercedes only. That theory was
sustained by this Court.
It was held that the said properties, being reservable properties, did not form part
of Severinas estate and could not be inherited from her by her daughter Mercedes
alone.

As there were seven reservees, Mercedes was entitled, as a reservee, to oneseventh of the properties. The other six-sevenths portions were adjudicated to the
other six reservees.
Under the rule of stare decisis et non quieta movere, we are bound to follow in this
case the doctrine of the Florentinocase. That doctrine means that as long as during
the reservors lifetime and upon his death there are relatives within the third
degree of the prepositus, regardless of whether those reservees are common
descendants of the reservor and the ascendant from whom the property came, the
property retains its reservable character. The property should go to the nearest
reservees. The reservor cannot, by means of his will, choose the reservee to whom
the reservable property should be awarded.
The alleged opinion of Sanchez Roman that there is no reserva troncal when the
only relatives within the third degree are the common descendants of the
predeceased ascendant and the ascendant who would be obliged to reserve is
irrelevant and sans binding force in the light of the ruling in theFlorentino case.
It is contended by the appellees herein that the properties in question are not
reservable properties because only relatives within the third degree from the
paternal line have survived and that when Mrs. Legarda willed the said properties
to her sixteen grandchildren, who are third-degree relatives of Filomena Legarda
and who belong to the paternal line, the reason for the reserva troncal has been
satisfied: to prevent persons outside a family from securing, by some special
accident of life, property that would otherwise have remained therein.
That same contention was advanced in the Florentino case where the reservor
willed the reservable properties to her daughter, a full-blood sister of
theprepositus and ignored the other six reservors, the relatives of the half-blood of
the prepositus.
In rejecting that contention, this Court held that the reservable property
bequeathed by the reservor to her daughter does not form part of the reservors
estate nor of the daughters estate but should be given to all the seven reservees or
nearest relatives of the prepositus within the third degree.
This Court noted that, while it is true that by giving the reservable property to
only one reservee it did not pass into the hands of strangers, nevertheless, it is

likewise true that the heiress of the reservor was only one of the reservees and there
is no reason founded upon law and justice why the other reservees should be deprived
of their shares in the reservable property (pp. 894-5).
Applying that doctrine to this case, it results that Mrs. Legarda could not dispose
of in her will the properties in question even if the disposition is in favor of the
relatives within the third degree from Filomena Legarda. The said properties, by
operation of Article 891, should go to Mrs. Legardas six children as reservees
within the second degree from Filomena Legarda.
It should be repeated that the reservees do not inherit from the reservor but from
the prepositus, of whom the reservees are the heirs mortis causasubject to the
condition that they must survive the reservor (Padura vs. Baldovino, L-11960,
December 27, 1958,104 Phil. 1065).
The trial court said that the disputed properties lost their reservable character
due to the non-existence of third-degree relatives of Filomena Legarda at the time of
the death of the reservor, Mrs. Legarda, belonging to the Legarda family, except
third-degree relatives who pertain to both the Legarda and Roces lines.
That holding is erroneous. The reservation could have been extinguished only by
the absence of reservees at the time of Mrs. Legardas death. Since at the time of
her death, there were (and still are) reservees belonging to the second and third
degrees, the disputed properties did not lose their reservable character. The
disposition of the said properties should be made in accordance with article 891 or
the rule on reserva troncal and not in accordance with the reservors holographic
will. The said properties did not form part of Mrs. Legardas estate. (Cano vs.
Director of Lands, 105 Phil. 1, 4).
WHEREFORE, the lower courts decision is reversed and set aside. It is hereby
adjudged that the properties inherited by Filomena Roces Vda. de Legarda from her
daughter Filomena Legarda, with all the fruits and accessions thereof, are
reservable properties which belong to Beatriz, Rosario, Teresa, Benito, Alejandro
and Jose, all surnamed Legarda y Roces, as reservees. The shares of Rosario L.
Valdes and Benito F. Legarda, who died in 1969 and 1973, respectively, should
pertain to their respective heirs. Costs against the private respondents.
SO ORDERED.

Barredo, Guerrero, Abad Santosand De Castro, JJ., concur.

Justice Concepcion Jr., is on leave. Justice Guerrero was designated to sit in
the Second Division.
Petition granted.
Notes.The requisite conditions for tax purposes before a court may issue an order of distribution of a
decedents estate are: (1) when the inheritance tax has been paid; (2) when sufficient bond is given to meet the
payment of the inheritance tax and all other obligations of the estate; or (3) when the payment of the said tax
and all other obligations has been provided for. (Vera vs. Navarro, 79 SCRA 408)
The cause of action of the reservee of a piece of property subject of reserva troncal does not arise until the
reservor dies (Chua vs. Court of First Instance, 78 SCRA 412)
For purposes of reserva troncal there is gratuitous transfer when the recipient does not give anything in
return and it matters not that the property is subject to prior charges, such as an order of the court imposing the
payment of a certain sum of money owned by the deceased. (Chua vs. Court of First Instance, 78 SCRA 412)
Plaintiffs cession of rights in favor of the legatees and heirs named in the will cut off whatever claims they
may have had to the properties of the estate for distribution (Corpus vs. Corpus, 7 SCRA 817)
A proceeding for the probate of a will is one in rem, such that with the corresponding publication of the
petition the courts jurisdiction extends to all persons interested in said will or in the settlement of the estate of
the deceased. (Abut vs. Abut, 45 SCRA 326)
Inability among the heirs to reach a novatory accord can not invalidate the original compromise among them
and any of the latter is justified in finally seeking a court order for the approval and enforcement of such
compromise. (De Borja vs. Vda. de Borja, 46 SCRA 577)
The better practice, however, for the heir who has not received his share, is to demand his share through a
proper motion in the same probate or administration proceedings it it had already been closed, and not through
an independent action, which would be tried by another court or Judge which may thus reverse a decision or
order of the probate or intestate court already final and executed and reshuffle properties long ago distributed
and disposed of. (Guilas vs. Judge of Court of First Instance, 43 SCRA 111; Macias vs. Uy Kim, 45 SCRA 251)
In reserva troncal the reservor has the legal title and dominion over the reservable property but subject to a
resolutory condition. (Sienes vs. Esparcia,1 SCRA 750).
When land is reservable property it is obligatory to reserve such property for the benefit of the real heir.
(Aglibot vs. Maalac, 4 SCRA 1030)
o0o

G.R. No. 83484. February 12, 1990.

CELEDONIA SOLIVIO, petitioner, vs.THE HONORABLE COURT OF APPEALS

and CONCORDIA JAVELLANA VILLANUEVA, respondents.
Special Proceedings; Settlement of Estate;Courts; Jurisdiction; Trial court has no
jurisdiction to entertain an action for partition and recovery of properties belonging to the
estate of a deceased person, while the probate proceedings for the settlement of said estate are
still pending in another branch of the same court.After a careful review of the records, we
find merit in the petitioners contention that the Regional Trial Court, Branch 26, lacked
jurisdiction to entertain Concordia Villanuevas action for partition and recovery of her
share of the estate of Esteban Javellana, Jr. while the probate proceedings (Spl. Proc. No.
2540) for the settlement of said estate are still pending in Branch 23 of the same court,
there being as yet no orders for the submission and approval of the administratrixs
inventory and accounting, distributing the residue of the estate to the heir, and terminating
the proceedings (p. 31, Record) x x x In the interest of orderly procedure and to avoid
confusing and conflicting dispositions of a decedents estate, a court should not interfere
with probate proceedings pending in a co-equal court. Thus, did we rule in Guilas v. Judge
of the Court of First Instance of Pampanga, L-26695, January 31, 1972, 43 SCRA 111,
117, where a daughter filed a separate action to annul a project of partition executed
between her and her father in the proceedings for the settlement of the estate of her mother:
The probate court loses jurisdiction of an estate under administration only after the
payment of all the debts and the remaining estate delivered to the heirs entitled to receive
the same. The finality of the approval of the project of partition by itself alone does not
terminate the probate proceeding (Timbol v. Cano, 1 SCRA 1271, 1276, L-15445, April 29,
1961; Siguiong v. Tecson, 89 Phil. pp. 28, 30). As long as the order of the distribution of the
estate has not been complied with, the probate proceedings cannot be deemed closed and
terminated (Siguiong v. Tecson, supra); because a judicial partition is not final and
conclusive and does not prevent the heirs from bringing an action to obtain his share,
provided the prescriptive period therefore has not elapsed (Mari v. Bonilla, 83 Phil.
137). The better practice, however, for the heir who has not received his share, is to demand
his share through a proper motion in the same probate or administration proceedings, or for
reopening of the probate or administrative proceedings if it had already been closed, and not
through an independent action, which would be tried by another court or Judge which may
thus reverse a decision or order of the probate or intestate court already final and executed
and re-shuffle properties long ago distributed and disposed of. (Ramos v. Ortuzar, 89 Phil.
730, 741-742; Timbol v. Cano, supra; Jingco v. Daluz, L-5107, April 24, 1953, 92 Phil. 1082;

Roman Catholic v. Agustines, L-14710, March 29, 1960, 107 Phil. 455, 460-461; Italics
supplied)
Same; Same; Probate proceedings are proceedings in rem, publication of the notice of
the proceedings is constructive notice to the whole world.The probate proceedings are
proceedings in rem. Notice of the time and place of hearing of the petition is required to be
published (Sec. 3, Rule 76 in relation to Sec. 3, Rule 79, Rules of Court). Notice of the
hearing of Celedonias original petition was published in the Visayan Tribune on April 25,
May 2 and 9, 1977 (Exh. 4, p. 197, Record). Similarly, notice of the hearing of her amended
petition of May 26, 1977 for the settlement of the estate was, by order of the court,
published in Bagong Kasanag (New Light) issues of May 27, June 3 and 10, 1977 (pp. 182305, Record). The publication of the notice of the proceedings was constructive notice to the
whole world. Concordia was not deprived of her right to intervene in the proceedings for she
had actual, as well as constructive notice of the same.
Same; Same; Same; Annulment of judgment; Extrinsic fraud; Failure to disclose to the
adverse party, or to the court, matters which will defeat ones own claim or defense does not
constitute extrinsic fraud that will justify vacation of judgment.Celedonias allegation in
her petition that she was the sole heir of Esteban within the third degree on his mothers
side was not false. Moreover, it was made in good faith and in the honest belief that because
the properties of Esteban had come from his mother, not his father, she, as Estebans
nearest surviving relative on his mothers side, is the rightful heir to them. It would have
been self-defeating and inconsistent with her claim of sole heirship if she stated in her
petition that Concordia was her co-heir. Her omission to so state did not constitute extrinsic
fraud. Failure to disclose to the adversary, or to the court, matters which would defeat
ones own claim or defense is not such extrinsic fraud as will justify or require vacation of
the judgment. (49 C.J.S. 489, citing Young v. Young, 2 SE 2d 622; First National Bank &
Trust Co. of King City v. Bowman, 15 SW 2d 842; Price v. Smith, 109 SW 2d 1144, 1149)
Wills and Succession; Reserva Troncal;Reserva troncal does not apply to property
inherited by a descendant from his ascendant.Clearly, the property of the deceased,
Esteban Javellana, Jr., is not reservable property, for Esteban, Jr. was not an ascendant,
but the descendant of his mother, Salustia Solivio, from whom he inherited the properties
in question. Therefore, he did not hold his inheritance subject to a reservation in favor of his
aunt, Celedonia Solivio, who is his relative within the third degree on his mothers side. The
reserva troncal applies to properties inherited by an ascendant from a descendant who
inherited it from another ascendant or a brother or sister. It does not apply to property
inherited by a descendant from his ascendant, the reverse of the situation covered by Article
891.

Evidence; Judicial Admissions; Judicial admissions are conclusive and no evidence is

required to prove the same.However, inasmuch as Concordia had agreed to deliver the
estate of the deceased to the foundation in honor of his mother, Salustia Solivio Vda. de
Javellana (from whom the estate came), an agreement which she ratified and confirmed in
her Motion to Reopen and/or Reconsider Order dated April 3, 1978 which she filed in Spl.
Proceeding No. 2540: 4. That x x x prior to the filing of the petition they (petitioner
Celedonia Solivio and movant Concordia Javellana) have agreed to make the estate of the
decedent a foundation, besides they have closely known each other due to their filiation to
the decedent and they have been visiting each others house which are not far away for (sic)
each other. (p. 234, Record; emphasis supplied) she is bound by that agreement. It is true
that by that agreement, she did not waive her inheritance in favor of Celedonia, but she did
agree to place all of Estebans estate in the Salustia Solivio Vda. de Javellana Foundation
which Esteban, Jr., during his lifetime, planned to set up to honor his mother and to finance
the education of indigent but deserving students as well. Her admission may not be taken
lightly as the lower court did. Being a judicial admission, it is conclusive and no evidence
need be presented to prove the agreement (Cunanan v. Amparo, 80 Phil. 227; Granada v.
Philippine National Bank, L-20745, Sept. 2, 1966, 18 SCRA 1; Sta. Ana v. Maliwat, L23023, Aug. 31, 1968, 24 SCRA 1018; People v. Encipido, G.R. 70091, Dec. 29, 1986, 146
SCRA 478; and Rodillas v. Sandiganbayan, G.R. 58652, May 20, 1988, 161 SCRA 347).

PETITION for review of the decision of the Court of Appeals.

The facts are stated in the opinion of the Court.
Rex Suiza Castillon for petitioner.
Salas & Villareal for private respondent.
MEDIALDEA, J.:
This is a petition for review of the decision dated January 26, 1988 of the Court of
Appeals in CA-GR CV No. 09010(Concor-dia Villanueva v. Celedonia Solivio)
affirming the decision of the trial court in Civil Case No. 13207 for partition,
reconvey-ance of ownership and possession and damages, the dispositive portion of
which reads as follows:
WHEREFORE, judgment is hereby rendered for the plaintiff and against defendant:
1. a)Ordering that the estate of the late Esteban Javellana, Jr. be divided into two (2)
shares: one-half for the plaintiff and one-half for defendant. From both shares shall

be equally deducted the expenses for the burial, mausoleum and related
expenditures. Against the share of defendants shall be charged the expenses for
scholarship, awards, donations and the Salustia Solivio Vda. de Javellana
Memorial Foundation;
2. b)Directing the defendant to submit an inventory of the entire estate property,
including but not limited to, specific items already mentioned in this decision and
to render an accounting of the property of the estate, within thirty (30) days from
receipt of this judgment; one-half (1/2) of this produce shall belong to plaintiff;
3. c)Ordering defendant to pay plaintiff P5,000.00 as expenses of litigation; P10,000.00
for and as attorneys fees plus costs.
SO ORDERED. (pp. 42-43, Rollo)

This case involves the estate of the late novelist, Esteban Javellana, Jr., author of
the first post-war Filipino novel With-out Seeing the Dawn, who died a bachelor,
without descendants, ascendants, brothers, sisters, nephews or nieces. His only
surviving relatives are: (1) his maternal aunt, petitioner Celedonia Solivio, the
spinster half-sister of his mother, Salus-tia Solivio; and (2) the private respondent,
Concordia Javel-lana-Villanueva, sister of his deceased father, Esteban Javel-lana,
Sr.
He was a posthumous child. His father died barely ten (10) months after his
marriage in December, 1916 to Salustia So-livio and four months before Esteban, Jr.
was born.
Salustia and her sister, Celedonia (daughter of Engracio Solivio and his second
wife Josefa Fernandez), a teacher in the Iloilo Provincial High School, brought up
Esteban, Jr. Salustia brought to her marriage paraphernal properties (various
parcels of land in Calinog, Iloilo covered by 24 titles) which she had inherited from
her mother, Gregoria Celo, Engracio Solivios first wife (p. 325, Record), but no
conjugal property was acquired during her short-lived marriage to Esteban, Sr.
On October 11, 1959, Salustia died, leaving all her properties to her only child,
Esteban, Jr., including a house and lot in La Paz, Iloilo City, where she, her son, and
her sister lived. In due time, the titles of all these properties were transferred in the
name of Esteban, Jr.

During his lifetime, Esteban, Jr. had, more than once, expressed to his aunt
Celedonia and some close friends his plan to place his estate in a foundation to
honor his mother and to help poor but deserving students obtain a college
education. Unfortunately, he died of a heart attack on February 26, 1977 without
having set up the foundation.
Two weeks after his funeral, Concordia and Celedonia talked about what to do
with Estebans properties. Celedonia told Concordia about Estebans desire to place
his estate in a foundation to be named after his mother, from whom his properties
came, for the purpose of helping indigent students in their schooling. Concordia
agreed to carry out the plan of the deceased. This fact was admitted by her in her
Motion to Reopen and/or Reconsider the Order dated April 3, 1978 which she filed
on July 27, 1978 in Special Proceeding No. 2540, where she stated:
4. That petitioner knew all along the narrated facts in the immediately preceding
paragraph [that herein movant is also the relative of the deceased within the third degree,
she being the younger sister of the late Esteban Javellana, father of the decedent herein],
because prior to the filing of the petition they (petitioner Celedonia Solivio and movant
Concordia Javellana) have agreed to make the estate of the decedent a foundation, besides
they have closely known each other due to their filiation to the decedent and they have been
visiting each others house which are not far away for (sic) each other. (p. 234, Record;
italics supplied.)

Pursuant to their agreement that Celedonia would take care of the proceedings
leading to the formation of the foundation, Celedonia in good faith and upon the
advice of her counsel, filed on March 8, 1977 Spl. Proceeding No. 2540 for her
appointment as special administratrix of the estate of Esteban Javellana, Jr. (Exh.
2). Later, she filed an amended petition (Exh. 5) praying that letters of
administration be issued to her; that she be declared sole heir of the deceased; and
that after payment of all claims and rendition of inventory and accounting, the
estate be adjudicated to her (p. 115, Rollo).
After due publication and hearing of her petition, as well as her amended
petition, she was declared sole heir of the estate of Esteban Javellana, Jr. She
explained that this was done for three reasons: (1) because the properties of the
estate had come from her sister, Salustia Solivio; (2) that she is the decedents
nearest relative on his mothers side; and (3) with her as sole heir, the disposition of
the properties of the estate to fund the foundation would be facilitated.

On April 3, 1978, the court (Branch II, CFI, now Branch 23, RTC) declared her
the sole heir of Esteban, Jr. Thereafter, she sold properties of the estate to pay the
taxes and other obligations of the deceased and proceeded to set up the SALUSTIA
SOLIVIO VDA. DE JAVELLANA FOUNDATION which she caused to be registered
in the Securities and Exchange Commission on July 17, 1981 under Reg. No.
0100027 (p. 98, Rollo).
Four months later, or on August 7, 1978, Concordia Javellana-Villanueva filed a
motion for reconsideration of the courts order declaring Celedonia as sole heir of
Esteban, Jr., because she too was an heir of the deceased. On October 27, 1978, her
motion was denied by the court for tardiness (pp. 80-81, Record). Instead of
appealing the denial, Concordia filed on January 7, 1980 (or one year and two
months later), Civil Case No. 13207 in the Regional Trial Court of Iloilo, Branch 26,
entitled Concordia Javellana-Villanueva v. Celedonia Solivio for partition, recovery
of possession, ownership and damages.
On September 3, 1984, the said trial court rendered judgment in Civil Case No.
13207, in favor of Concordia Javellana-Villanueva.
On Concordias motion, the trial court ordered the execution of its judgment
pending appeal and required Celedonia to submit an inventory and accounting of
the estate. In her motions for reconsideration of those orders, Celedonia averred
that the properties of the deceased had already been transferred to, and were in the
possession of, the Salustia Solivio Vda. de Javellana Foundation. The trial court
denied her motions for reconsideration.
In the meantime, Celedonia perfected an appeal to the Court of Appeals (CA-GR
CV No. 09010). On January 26, 1988, the Court of Appeals, Eleventh Division,
rendered judgment affirming the decision of the trial court in toto. Hence, this
petition for review wherein she raised the following legal issues:
1. 1.whether Branch 26 of the RTC of Iloilo had jurisdiction to entertain Civil Case No.
13207 for partition and recovery of Concordia Villanuevas share of the estate of
Esteban Javellana, Jr. even while the probate proceedings (Spl. Proc. No. 2540)
were still pending in Branch 23 of the same court;
2. 2.whether Concordia Villanueva was prevented from intervening in Spl. Proc. No.
2540 through extrinsic fraud;

3. 3.whether the decedents properties were subject to reserva troncal in favor of

Celedonia, his relative within the third degree on his mothers side from whom he
had inherited them; and
4. 4.whether Concordia may recover her share of the estate after she had agreed to
place the same in the Salustia Solivio Vda. de Javellana Foundation, and
notwithstanding the fact that conformably with said agreement, the Foundation
has been formed and properties of the estate have already been transferred to it.

I. The question of jurisdiction

After a careful review of the records, we find merit in the petitioners contention
that the Regional Trial Court, Branch 26, lacked jurisdiction to entertain Concordia
Villanuevas action for partition and recovery of her share of the estate of Esteban
Javellana, Jr. while the probate proceedings (Spl. Proc. No. 2540) for the settlement
of said estate are still pending in Branch 23 of the same court, there being as yet no
orders for the submission and approval of the administratrixs inventory and
accounting, distributing the residue of the estate to the heir, and terminating the
proceedings (p. 31, Record).
It is the order of distribution directing the delivery of the residue of the estate to
the persons entitled thereto that brings to a close the intestate proceedings, puts an
end to the administration and thus far relieves the administrator from his duties
(Santiesteban v. Santiesteban, 68 Phil. 367, Philippine Commercial and Industrial
Bank v. Escolin, et al., L-27860, March 29, 1974, 56 SCRA 266).
The assailed order of Judge Adil in Spl. Proc. No. 2540 declaring Celedonia as the
sole heir of the estate of Esteban Javellana, Jr. did not toll the end of the
proceedings. As a matter of fact, the last paragraph of the order directed the
administratrix to hurry up the settlement of the estate. The pertinent portions of
the order are quoted below:
2. As regards the second incident [Motion for Declaration of Miss Celedonia Solivio as Sole
Heir, dated March 7, 1978], it appears from the record that despite the notices posted and
the publication of these proceedings as required by law, no other heirs came out to interpose
any opposition to the instant proceeding. It further appears that herein Administratrix is
the only claimant-heir to the estate of the late Esteban Javellana who died on February 26,
1977.

During the hearing of the motion for declaration as heir on March 17, 1978, it was
established that the late Esteban Javellana died single, without any known issue, and
without any surviving parents. His nearest relative is the herein Administratrix, an elder
[sic] sister of his late mother who reared him and with whom he had always been living
with [sic] during his lifetime.
x x x

xxx

xxx

2. Miss Celedonia Solivio, Administratrix of this estate, is hereby declared as the sole
and legal heir of the late Esteban S. Javellana, who died intestate on February 26, 1977 at
La Paz, Iloilo City.
The Administratrix is hereby instructed to hurry up with the settlement of this estate
so that it can be terminated. (pp. 14-16, Record)

In view of the pendency of the probate proceedings in Branch 11of the Court of First
Instance (now RTC, Branch 23), Concordias motion to set aside the order declaring
Celedonia as sole heir of Esteban, and to have herself (Concordia) declared as coheir
and recover her share of the properties of the deceased, was properly filed by her in
Spl. Proc. No. 2540. Her remedy when the court denied her motion, was to elevate
the denial to the Court of Appeals for review on certiorari. However, instead of
availing of that remedy, she filed more than one year later, a separate action for the
same purpose in Branch 26 of the court. We hold that the separate action was
improperly filed for it is the probate court that has exclusive jurisdiction to make a
just and legal distribution of the estate.
The probate court, in the exercise of its jurisdiction to make distribution, has power to
determine the proportion or parts to which each distributee is entitled. x x x The power to
determine the legality or illegality of the testamentary provision is inherent in the
jurisdiction of the court making a just and legal distribution of the inheritance. x x x To
hold that a separate and independent action is necessary to that effect, would be contrary to
the general tendency of the jurisprudence of avoiding multiplicity of suits; and is further,
expensive, dilatory, and impractical. (Marcelino v. Antonio, 70 Phil. 388)
A judicial declaration that a certain person is the only heir of the decedent is exclusively
within the range of the administratrix proceedings and can not properly be made an
independent action. (Litam v. Espiritu, 100 Phil. 364)
A separate action for the declaration of heirs is not proper. (Pimentel v. Palanca, 5 Phil.
436)

In the interest of orderly procedure and to avoid confusing and conflicting

dispositions of a decedents estate, a court should not interfere with probate
proceedings pending in a co-equal court. Thus, did we rule in Guilas v. Judge of the
Court of First Instance of Pampanga,L-26695, January 31, 1972, 43 SCRA 111, 117,
where a daughter filed a separate action to annul a project of partition executed
between her and her father in the proceedings for the settlement of the estate of her
mother:
The probate court loses jurisdiction of an estate under administration only after the
payment of all the debts and the remaining estate delivered to the heirs entitled to receive
the same. The finality of the approval of the project of partition by itself alone does not
terminate the probate proceeding (Timbol v. Cano, 1 SCRA 1271, 1276, L-15445, April 29,
1961; Siguiong v. Tecson, 89 Phil. pp. 28, 30). As long as the order of the distribution of the
estate has not been complied with, the probate proceedings cannot be deemed closed and
terminated (Siguiong v. Tecson, supra); because a judicial partition is not final and
conclusive and does not prevent the heirs from bringing an action to obtain his share,
provided the prescriptive period therefore has not elapsed (Mari v. Bonilla, 83 Phil.
137).The better practice, however, for the heir who has not received his share, is to demand
his share through a proper motion in the same probate or administration proceedings, or for
reopening of the probate or administrative proceedings if it had already been closed, and not
through an independent action, which would be tried by another court or Judge which may
thus reverse a decision or order of the probate or intestate court already final and executed
and re-shuffle properties long ago distributed and disposed of. (Ramos v. Ortuzar, 89 Phil.
730, 741-742; Timbol v. Cano, supra; Jingco v. Daluz, L-5107, April 24, 1953, 92 Phil.
1082; Roman Catholic v. Agustines, L-14710, March 29, 1960, 107 Phil. 455, 460-461; Italics
supplied)

In Litam, et al., v. Rivera, 100 Phil. 364, where despite the pendency of the special
proceedings for the settlement of the intestate estate of the deceased Rafael Litam,
the plaintiffs-appellants filed a civil action in which they claimed that they were the
children by a previous marriage of the deceased to a Chinese woman, hence, entitled
to inherit his one-half share of the conjugal properties acquired during his marriage
to Marcosa Rivera, the trial court in the civil case declared that the plaintiffsappellants were not children of the deceased, that the properties in question were
paraphernal properties of his wife, Marcosa Rivera, and that the latter was his only
heir. On appeal to this Court, we ruled that such declarations (that Marcosa Rivera
was the only heir of the decedent) is improper, in Civil Case No. 2071, it being
within the exclusive competence of the court in Special Proceedings No. 1537, in

which it is not as yet, in issue, and, will not be, ordinarily, in issue until the
presentation of the project of partition.(p. 378).
However, in the Guilas case, supra, since the estate proceedings had been closed
and terminated for over three years, the action for annulment of the project of
partition was allowed to continue. Considering that in the instant case, the estate
proceedings are still pending, but nonetheless, Concordia had lost her right to have
herself declared as co-heir in said proceedings, We have opted likewise to proceed to
discuss the merits of her claim in the interest of justice.
The orders of the Regional Trial Court, Branch 26, in Civil Case No. 13207
setting aside the probate proceedings in Branch 23 (formerly Branch 11) on the
ground of extrinsic fraud, and declaring Concordia Villanueva to be a co-heir of
Celedonia to the estate of Esteban, Jr., ordering the partition of the estate, and
requiring the administratrix, Celedonia, to submit an inventory and accounting of
the estate, were improper and officious, to say the least, for these matters lie within
the exclusive competence of the probate court.
II. The question of extrinsic fraud
Was Concordia prevented from intervening in the intestate proceedings by extrinsic
fraud employed by Celedonia? It is noteworthy that extrinsic fraud was not
alleged in Concordias original complaint in Civil Case No. 13207. It was only in her
amended complaint of March 6, 1980, that extrinsic fraud was alleged for the first
time.
Extrinsic fraud, as a ground for annulment of judgment, is any act or conduct of the
prevailing party which prevented a fair submission of the controversy (Francisco v. David,
38 O.G. 714). A fraud which prevents a party from having a trial or presenting all of his
case to the court, or one which operates upon matters pertaining, not to the judgment itself,
but to the manner by which such judgment was procured so much so that there was no fair
submission of the controversy. For instance, if through fraudulent machination by one [his
adversary], a litigant was induced to withdraw his defense or was prevented from
presenting an available defense or cause of action in the case wherein the judgment was
obtained, such that the aggrieved party was deprived of his day in court through no fault of
his own, the equitable relief against such judgment may be availed of. (Yatco v. Sumagui,
44623-R, July 31, 1971). (cited inPhilippine Law Dictionary, 1972 Ed. by Moreno; Varela v.
Villanueva, et al., 95 Phil. 248)

A judgment may be annulled on the ground of extrinsic or collateral fraud, as

distinguished from intrinsic fraud, which connotes any fraudulent scheme executed by a
prevailing litigant outside the trial of a case against the defeated party, or his agents,
attorneys or witnesses, whereby said defeated party is prevented from presenting fully and
fairly his side of the case. x x x The overriding consideration is that the fraudulent scheme
of the prevailing litigant prevented a party from having his day in court or from presenting
his case. The fraud, therefore, is one that affects and goes into the jurisdiction of the court.
(Libudan v. Gil, L-21163, May 17, 1972, 45 SCRA 17, 27-29; Sterling Investment Corp. v.
Ruiz, L-30694, October 31, 1969, 30 SCRA 318, 323)

The charge of extrinsic fraud is, however, unwarranted for the following reasons:
1. Concordia was not unaware of the special proceeding intended to be filed by
Celedonia. She admitted in her complaint that she and Celedonia had agreed that
the latter would initiate the necessary proceeding and pay the taxes and
obligations of the estate. Thus paragraph 6 of her complaint alleged:
6. x x x for the purpose of facilitating the settlement of the estate of the late Esteban
Javellana, Jr. at the lowest possible cost and the least effort, the plaintiff and the defendant
agreed that the defendant shall initiate the necessary proceeding, cause the payment of taxes
and other obligations, and to do everything else required by law, and thereafter, secure the
partition of the estate between her and the plaintiff, [although Celedonia denied that they
agreed to partition the estate, for their agreement was to place the estate in a foundation.]
(p. 2, Record; emphasis supplied)

Evidently, Concordia was not preventedfrom intervening in the proceedings. She

stayed away by choice. Besides, she knew that the estate came exclusively from
Estebans mother, Salustia Solivio, and she had agreed with Celedonia to place it in
a foundation as the deceased had planned to do.
2. The probate proceedings are proceedings in rem. Notice of the time and place
of hearing of the petition is required to be published (Sec. 3, Rule 76 in relation to
Sec. 3, Rule 79, Rules of Court). Notice of the hearing of Celedonias original petition
was published in the Visayan Tribune on April 25, May 2 and 9, 1977 (Exh. 4, p.
197, Record). Similarly, notice of the hearing of her amended petition of May 26,
1977 for the settlement of the estate was, by order of the court, published in
Bagong Kasanag (New Light) issues of May 27, June 3 and 10, 1977 (pp. 182-305,
Record). The publication of the notice of the proceedings was constructive notice to
the whole world. Concordia was not deprived of her right to intervene in the

proceedings for she had actual, as well as constructive notice of the same. As
pointed out by the probate court in its order of October 27, 1978:
x x x. The move of Concordia Javellana, however, was filed about five months after
Celedonia Solivio was declared as the sole heir. x x x.
Considering that this proceeding is one in rem and had been duly published as required
by law, despite which the present movant only came to court now, then she is guilty of
laches for sleeping on her alleged right. (p. 22, Record)

The court noted that Concordias motion did not comply with the requisites of a
petition for relief from judgment nor a motion for new trial.
The rule is stated in 49 Corpus Juris Secundum 8030 as follows:
Where petition was sufficient to invoke statutory jurisdiction of probate court
andproceeding was in rem, no subsequent errors or irregularities are available on collateral
attack. (Bedwell v. Dean 132 So. 20)

Celedonias allegation in her petition that she was the sole heir of Esteban within
the third degree on his mothers side was not false. Moreover, it was made in good
faith and in the honest belief that because the properties of Esteban had come from
his mother, not his father, she, as Estebans nearest surviving relative on his
mothers side, is the rightful heir to them. It would have been self-defeating and
inconsistent with her claim of sole heirship if she stated in her petition that
Concordia was her co-heir. Her omission to so state did not constitute extrinsic
fraud.
Failure to disclose to the adversary, or to the court, matters which would defeat ones own
claim or defense is not such extrinsic fraud as will justify or require vacation of the
judgment. (49 C.J.S. 489, citing Young v. Young, 2 SE 2d 622; First National Bank & Trust
Co. of King City v. Bowman, 15 SW 2d 842; Price v. Smith, 109 SW 2d 1144, 1149)

It should be remembered that a petition for administration of a decedents estate

may be filed by any interested person (Sec. 2, Rule 79, Rules of Court). The filing of
Celedonias petition did not preclude Concordia from filing her own.
III. On the question of reserva troncal

We find no merit in the petitioners argument that the estate of the deceased was
subject to reserva troncal and that it pertains to her as his only relative within the
third degree on his mothers side. Thereserva troncal provision of the Civil Code is
found in Article 891 which reads as follows:
ART. 891. The ascendant who inherits from his descendant any property which the latter
may have acquired by gratuitous title from another ascendant, or a brother or sister, is
obliged to reserve such property as he may have acquired by operation of law for the benefit
of relatives who are within the third degree and who belong to the line from which said
property came.

The persons involved in reserva troncalare:

1. 1.The person obliged to reserve is the reservor (reservista)the ascendant who
inherits by operation of law property from his descendants.
2. 2.The persons for whom the property is reserved are the reservees (reservatarios)
relatives within the third degree counted from the descendant (propositus), and
belonging to the line from which the property came.
3. 3.The propositusthe descendant who received by gratuitous title and died without
issue, making his other ascendant inherit by operation of law. (p. 692, Civil Law by
Padilla, Vol. II, 1956 Ed.)

Clearly, the property of the deceased, Esteban Javellana, Jr., is not reservable
property, for Esteban, Jr. was not an ascendant, but the descendant of his mother,
Salustia Solivio, from whom he inherited the properties in question. Therefore, he
did not hold his inheritance subject to a reservation in favor of his aunt, Celedonia
Solivio, who is his relative within the third degree on his mothers side. The reserva
troncal applies to properties inherited by an ascendant from a descendant who
inherited it from another ascendant or a brother or sister. It does not apply to
property inherited by a descendant from his ascendant, the reverse of the situation
covered by Article 891.
Since the deceased, Esteban Javellana, Jr., died without descendants,
ascendants, illegitimate children, surviving spouse, brothers, sisters, nephews or
nieces, what should apply in the distribution of his estate are Articles 1003 and
1009 of the Civil Code which provide:

ART. 1003. If there are no descendants, ascendants, illegitimate children, or a surviving

spouse, the collateral relatives shall succeed to the entire estate of the deceased in
accordance with the following articles.
ART. 1009. Should there be neither brothers nor sisters, nor children of brothers or sisters,
the other collateral relatives shall succeed to the estate.
The latter shall succeed without distinction of lines or preference among them by
reason of relationship by the whole blood.

Therefore, the Court of Appeals correctly held that:

Both plaintiff-appellee and defendant-appellant being relatives of the decedent within the
third degree in the collateral line, each, therefore, shall succeed to the subject estate
without distinction of line or preference among them by reason of relationship by the whole
blood, and is entitled to one-half (1/2) share and share alike of the estate. (p. 57, Rollo)

IV. The question of Concordias one-half share

However, inasmuch as Concordia had agreed to deliver the estate of the deceased to
the foundation in honor of his mother, Salustia Solivio Vda. de Javellana (from
whom the estate came), an agreement which she ratified and confirmed in her
Motion to Reopen and/or Reconsider Order dated April 3, 1978 which she filed in
Spl. Proceeding No. 2540:
4. That x x x prior to the filing of the petition they (petitioner Celedonia Solivio and movant
Concordia Javellana) have agreed to make the estate of the decedent a foundation, besides
they have closely known each other due to their filiation to the decedent and they have been
visiting each others house which are not far away for (sic) each other. (p. 234, Record;
italics supplied)

she is bound by that agreement. It is true that by that agreement, she did not waive
her inheritance in favor of Celedonia, but she did agree to place all of Estebans
estate in the Salustia Solivio Vda. de Javellana Foundation which Esteban, Jr.,
during his lifetime, planned to set up to honor his mother and to finance the
education of indigent but deserving students as well.
Her admission may not be taken lightly as the lower court did. Being a judicial
admission, it is conclusive and no evidence need be presented to prove the

agreement (Cunanan v. Amparo, 80 Phil. 227; Granada v. Philippine National Bank,

L-20745, Sept. 2, 1966, 18 SCRA 1; Sta. Ana v. Maliwat, L-23023, Aug. 31, 1968,24
SCRA 1018; People v. Encipido,G.R.70091, Dec. 29, 1986, 146 SCRA 478;
and Rodillas v. Sandiganbayan, G.R. 58652, May 20, 1988, 161 SCRA 347).
The admission was never withdrawn or impugned by Concordia who,
significantly, did not even testify in the case, although she could have done so by
deposition if she were supposedly indisposed to attend the trial. Only her husband,
Narciso, and son-in-law, Juanito Domin, actively participated in the trial. Her
husband confirmed the agreement between his wife and Celedonia, but he
endeavored to dilute it by alleging that his wife did not intend to give all, but only
one-half, of her share to the foundation (p. 323, Record).
The records show that the Salustia Solivio Vda. de Javellana Foundation was
established and duly registered in the Securities and Exchange Commission under
Reg. No. 0100027 for the following principal purposes:
1. 1.To provide for the establishment and/or setting up of scholarships for such
deserving students as the Board of Trustees of the Foundation may decide of at
least one scholar each to study at West Visayas State College, and the University of
the Philippines in the Visayas, both located in Iloilo City.
2. 2.To provide a scholarship for at least one scholar for St. Clements Redemptorist
Community for a deserving student who has the religious vocation to become a
priest.
3. 3.To foster, develop, and encourage activities that will promote the advancement
and enrichment of the various fields of educational endeavors, especially in literary
arts. Scholarships provided for by this foundation may be named after its
benevolent benefactors as a token of gratitude for their contributions.
4. 4.To direct or undertake surveys and studies in the community to determine
community needs and be able to alleviate partially or totally said needs.

5. 5.To maintain and provide the necessary activities for the proper care of the SolivioJavellana mausoleum at Christ the King Memorial Park, Jaro, Iloilo City, and the
Javellana Memorial at the West Visayas State College, as a token of appreciation
for the contribution of the estate of the late Esteban S. Javellana which has made
this foundation possible. Also, in perpetuation of his Roman Catholic beliefs and

those of his mother, Gregorian masses or their equivalents will be offered every
February and October, and Requiem masses every February 25th and October
11th, their death anniversaries, as part of this provision.
1. 6.To receive gifts, legacies, donations, contributions, endowments and financial aids
or loans from whatever source, to invest and reinvest the funds, collect the income
thereof and pay or apply only the income or such part thereof as shall be
determined by the Trustees for such endeavors as may be necessary to carry out
the objectives of the Foundation.
2. 7.To acquire, purchase, own, hold, operate, develop, lease, mortgage, pledge,
exchange, sell, transfer, or otherwise, invest, trade, or deal, in any manner
permitted by law, in real and personal property of every kind and description or any
interest herein.
3. 8.To do and perform all acts and things necessary, suitable or proper for the
accomplishments of any of the purposes herein enumerated or which shall at any
time appear conducive to the protection or benefit of the corporation, including the
exercise of the powers, authorities and attributes concerned upon the corporation
organized under the laws of the Philippines in general, and upon domestic
corporation of like nature in particular. (pp. 9-10, Rollo)

As alleged without contradiction in the petition for review:

The Foundation began to function in June, 1982, and three (3) of its eight Esteban Javellana
scholars graduated in 1986, one (1) from UPV graduated Cum Laude and two (2) from WVSU
graduated with honors; one was a Cum Laude and the other was a recipient of Lagos Lopez award
for teaching for being the most outstanding student teacher.
The Foundation has four (4) high school scholars in Guiso Barangay High School, the site of
which was donated by the Foundation. The School has been selected as the Pilot Barangay High
School for Region VI.
The Foundation has a special scholar, Fr. Elbert Vasquez, who would be ordained this year. He studied at
St. Francis Xavier Major Regional Seminary at Davao City. The Foundation likewise is a member of the
Redemptorist Association that gives yearly donations to help poor students who want to become Redemptorist
priests or brothers. It gives yearly awards for Creative writing known as the Esteban Javellana Award.
Further, the Foundation had constructed the Esteban S. Javellana Multipurpose Center at the West
Visayas State University for teachers and students use, and has likewise contributed to religious, civic and
cultural fund-raising drives, amongst others. (p. 10, Rollo)

Having agreed to contribute her share of the decedents estate to the Foundation, Concordia is
obligated to honor her commitment as Celedonia has honored hers.
WHEREFORE, the petition for review is granted. The decision of the trial court and the Court of
Appeals are hereby SET ASIDE. Concordia J. Villanueva is declared an heir of the late Esteban
Javellana, Jr. entitled to one-half of his estate. However, comformably with the agreement between
her and her coheir, Celedonia Solivio, the entire estate of the deceased should be conveyed to the
Salustia Solivio Vda. de Javallana Foundation, of which both the petitioner and the private
respondent shall be trustees, and each shall be entitled to nominate an equal number of trustees to
constitute the Board of Trustees of the Foundation which shall administer the same for the purposes
set forth in its charter. The petitioner, as administratrix of the estate, shall submit to the probate
court an inventory and accounting of the estate of the deceased preparatory to terminating the
proceedings therein.
SO ORDERED.
Narvasa, Cruz, Gancayco andGrio-Aquino, JJ., concur.
Petition granted; decision set aside.
Note.Fraud is regarded as extrinsic or collateral where it has prevented a party from hearing a
trial or from presenting all his case to the court. (Asian Surety and Insurance Co., Inc. vs. sland
Steel, Inc., 118 SCRA 233.)

[No. L-10701. January 16, 1959]

MARIA CANO, applicant and appellee,vs. DIRECTOR OF LANDS, EUSTAQUIA
GUERRERO, ET AL., oppositors and appellants. JOSE FERNANDEZ, ET AL.,
oppositors and appellants.
1. 1.SUCCESSION; RESERVA
TRONCAL; RECORD
RESERVA;DEATH
OF
RESERVISTA;ISSUANCE OF CERTIFICATE OF TlTLE TO RESERVEE.Once
an original certificate of title by virtue of the final decree of the land court was duly
issued in the name of thereservista, subject to reserva, troncal,and subsequently the
latter died, the registration court, in view of the said recorded reserva has
authority under Sec. 112 of Act 496 to order thereservatario; for the reason that the
death of the reservista vested the ownership of the property in the solereservatario
troncal.

1. 2.ID.; ID.; ID.; ID.; ID.; EXCEPTION.Where, however, the registration decree
merely specifies the reservable character of the property, without determining the
identity of thereservatario (as in the case of Director of Lands vs. Aguas, 63 Phil.,
279) or where several reservatories dispute the property among themselves, further
proceedings would be unavoidable.
1. 3.ID.; ID.; ID.; REQUISITES TO VEST TITLE IN RESERVE.The only requisites
for the passing of the title from the reservista to the reservee are (1) the death of
the reservista; and (2) the fact that the reservatario has survived the reservista.
1. 4.ID.; ID.; RESERVATION NOT RESERVISTA'S SUCCESSOR MORTIS CAUSA.
The reservatario is not the reservista's successor mortis causa nor is the reservable
property part of the reservista's estate; thereservatario receives the property as a
conditional heir of the descendant(prepositus), the property merely reverting to the
line of origin from which it had temporarily and accidentally strayed during
thereservista's lifetime. The authorities are all agreed that there
beingreservatarios that survive thereservista, the latter must be deemed to have
enjoyed no more than a life interest In the reservable property.
1. 5.ID.; ID.; DEATH

OF

RESERVISTA;RESERVATARIO

AUTOMATICALLY

BECOMES OWNER OF RESERVABLE PROPERTY.Upon the death of

the reservatario nearest to the prepositus becomes,automatically and by operation
of law,the owner of the reservable property.
1. 6.ID.; ID.; RESERVABLE PROPERTY CANNOT BE TRANSMITTED MORTIS
CAUSA BY RESERVISTA.The reservable property cannot betransmitted by a
reservista to her or his own successors mortis causa so long as
a reservatario, within the third degree from the prepositus and belonging to the line
whence the property came, is in existence when the reservista dies.

APPEAL from an order of the Court of First Instance of Sorsogon. Torres, J.

The facts are stated in the opinion of the Court.
Ramon C. Fernandez for appellants.
Jose B. Dealca for appellee.
REYES, J. B. L., J.:

In an amended decision dated October 9, 1951, issued in Land Registration Case

No. 12, G. L. R. O. Rec. No. 2835, the Court of First Instance of Sorsogon decreed
the registration of Lots Nos. 1798 and 1799 of the Juban (Sorsogon) Cadastre, under
the following terms and conditions:
"In view of the foregoing, and it appearing that the notices have been duly published and
posted as required by law, and that the title of the applicant to the above-mentioned two
parcels of land is registrable in law, it is hereby adjudged and decreed, and with
reaffirmation of the order of general default, that the two parcels of land described in plan
SWO-24152, known as Lots Nos. 1798 and 1799 of the Cadastral Survey of Juban, with
their improvements, be registered in the name of Maria Cano, Filipina, 71 years of age,
widow and resident of Juban, province of Sorsogon, with the understanding that Lot No.
1799 shall be subject to the right of reservation in favor of Eustaquia Guerrero pursuant to
Article 891 of the Civil Code. After this decision shall have become final for lack of appeal
therefrom within the 30-day period from its promulgation, let the corresponding decree
issue.
So ordered." (Rec. App. pp. 18-19)

The decision having become final, the decree and the Certificate of Title (No. 020) were issued in the name of Maria Cano, subject to reserva troncal in favor of
Eustaquia
Guerrero.
In
October
1955,
counsel
for
the
reservee (reservatorio)Guerrero filed a motion with the Cadastral Court, alleging
the death of the original registered owner andreservista, Maria Cano, on September
8, 1955, and praying that the original Certificate of Title be ordered cancelled and a
new one issued in favor of movant Eustaquia Guerrero; and that the Sheriff be
ordered to place her in possession of the property. The motion was opposed by Jose
and Teotimo Fernandez, sons of thereservista Maria Cano, who contended that the
application and operation of thereserva troncal should be ventilated in an ordinary
contentious proceeding, and that the Registration Court did not have jurisdiction to
grant the motion.
In view of the recorded reserva in favor of the appellee, as expressly noted in the
final decree of registration, the lower court granted the petition for the issuance of a
new certificate, for the reason that the death of the reservistavested the ownership
of the property in the petitioner as the sole reservatario troncal.

The oppositors, heirs of the reservistaMaria Cano, duly appealed from the order,
insisting that the ownership of thereservatario can not be decreed in a mere
proceeding under sec. 112 of Act 496, but requires a judicial administration
proceedings, wherein the rights of appellee, as the reservatario entitled to the
reservable property, are to be declared. In this connection, appellants argue that the
reversion in favor of thereservatario requires the declaration of the existence of the
following facts:
1. "(1)The property was received by a descendant by gratuitous title from an ascendant
or from a brother or sister;
2. (2)Said descendant dies without issue;

3. (3)The property is inherited by another ascendant by operation of law; and

4. (4)The existence of relatives within the third degree belonging to the line from which
said property came." (Appellants' Brief, p. 8)

We find the appeal untenable. The requisites enumerated by appellants have

already been declared to exist by the decree of registration wherein the rights of the
appellee as reservatario troncal were expressly recognized:
"From the above-quoted agreed stipulation of facts, it is evident that Lot No. 1799 was
acquired by the applicant Maria Cano by inheritance from her deceased daughter, Lourdes
Guerrero who, in turn, inherited the same from her father Evaristo Guerrero and, hence,
falls squarely under the provisions of Article 891 of the Civil Code; and that each and
everyone of the private oppositors are within the third degree of consanguinity of the
decedent Evaristo Guererro, and who belonging to the same line from which the property
came.
It appears, however, from the agreed stipulation of facts that with the exception of
Eustaquia Guerrero, who is the only living daughter of the decedent Evaristo Guerrero, by
his former marriage, all the other oppositors are grandchildren of the said Evaristo
Guerrero by his former marriages. Eustaquia Guerrero, being the nearest of kin, excludes
all the other private oppositors, whose degree of relationship to the decedent is remoter
(Article 962, Civil Code; Director of Lands vs. Aguas, 62 Phil., 279)." (Rec. App. pp. 16-17)

This decree having become final, all persons (appellees included) are barred thereby
from contesting the existence of the constituent elements of the reserva.The only

requisites for the passing of the title from the reservista to the appellee are: (1) the
death of the reservista; and (2) the fact that the reservatario has survived
the reservista. Both facts are admitted, and their existence is nowhere questioned.
The contention that an intestacy proceeding is still necessary rests upon the
assumption that the reservatario will succeed in, or inherit, the reservable property
from
the reservista. This
is
not
true.
The reservatario is
not
thereservista's successor mortis causa nor is the reservable property part of
thereservista's estate; the reservatario receives the property as a conditional heir of
the descendant(prepositus), said property merely reverting to the line of origin from
which it had temporarily and accidentally strayed during the reservista's lifetime.
The authorities are all agreed that there being reservatarios that survive
thereservista, the latter must be deemed to have enjoyed no more than a life interest
in the reservable property,
It is a consequence of these principles that upon the death of
the reservista, thereservatario nearest to the prepositus(the appellee in this case)
becomes,automatically and by operation of law,the owner of the reservable property.
As already stated, that property is no part of the estate of the reservista, and does
not even answer for the debts of the latter. Hence, its acquisition by
the reservatariomay be entered in the property records without necessity of estate
proceedings, since the 'basic requisites therefor appear of record. It is equally well
settled that the reservable property can not be transmitted by a reservista to her or
his own successors mortis causa, (like appellants herein) so long as
areservatorio within the third degree from the prepositus and belonging to the line
whence the property came, is in existence when the reservista dies.
Of course, where the registration decree merely specifies the reservable character
of the property, without determining the identity of thereservatario (as in the case
of Director of Lands vs. Aguas, 63 Phil., 279) or where several reservatarios dispute
the property among themselves, further proceedings would be unavoidable. But this
is not the case. The rights of the reservatariaEustaquia Guerrero have been
expressly recognized, and it is nowhere claimed that there are other reservatarios of
equal or nearer degree. It is thus apparent that the heirs of the reservistaare merely
endeavoring to prolong their enjoyment of the reservable property to the detriment
of the party lawfully entitled thereto.

We find no error in the order appeal from and therefore, the same is affirmed with
costs against appellants in both instances. So ordered.
Pars,
C.
J., Bengzon, Padilla,Montemayor, Bautista Angelo, Labrador,Concepcin and Enden
cia JJ., concur.
Order affirmed.
_______________

No. L-29901. August 31, 1977.

IGNACIO FRIAS CHUA, DOMINADOR CHUA and REMEDIOS CHUA,

petitioners, vs. THE COURT OF FIRST INSTANCE OF NEGROS OCCIDENTAL,
BRANCH V and SUSANA DE LA TORRE, in her capacity as Administratrix of the
Intestate Estate of Consolacion de la Torre, respondents.
Civil law; Succession; Settlement of estate;Requisites for reserva troncal to arise.
Pursuant to the foregoing provision, in order that property may be impressed with a
reservable character the following requisites must exist, to wit: (1) that the property was
acquired by a descendant from an ascendant or from a brother or sister by gratuitous title;
(2) that said descendant died without an issue; (3) that the property is inherited by another
ascendant by operation of law; and (4) that there are relatives within the third degree

belonging to the line from which said property came. In the case before Us, all of the
foregoing requisites are present. Thus, as borne out by the records, Juanito Frias Chua of
the second marriage died intestate in 1952; he died without leaving any issue; his proindiviso of 1/2 share of Lot No. 399 was acquired by his mother, Consolacion de la Torre by
operation of law. When Consolacion de la Torre, died, Juanito Frias Chua who died
intestate had relatives within the third degree. These relatives are Ignacio Frias Chua and
Dominador Chua and Remedios Chua, the supposed legitimate children of the deceased
Lorenzo Frias Chua, who are the petitioners herein.
Same; Same; Same; For purposes of reserva troncal, there is a gratuitous transfer
when the recipient does not give anything in return and it matters not that the property is
subject to prior charges, such as an order of the court imposing the payment of a certain sum
owed by the deceased.As explained by Manresa which this Court quoted with approval in
Cabardo v. Villanueva, 44 Phil. 186, The transmission is gratuitous or by gratuitous title
when the recipient does not give anything in return. It matters not whether the property
transmitted be or be not subject to any prior charges; what is essential is that the
transmission be made gratuitously, or by an act of mere liberality of the person making it,
without imposing any obligation on the part of the recipient; and that the person receiving
the property gives or does nothing in return. x x x. It is true that there is the order (Exh.
D) of the probate Court in Intestate Proceeding No. 4816 which states in express terms x
x x. But the obligation of paying the Standard Oil Co. of New York the amount of P3,971.20
is imposed upon Consolacion de la Torre and Juanito Frias Chua not personally by the
deceased Jose Frias Chua in his last will and testament but by an order of the court in the
Testate Proceeding No. 4816 dated January 15, 1931. As long as the transmission of the
property to the heirs is free from any condition imposed by the deceased himself and the
property is given out of pure generosity, it-is gratuitous. It does not matter if later the court
orders one of the heirs, in this case Juanito Frias Chua, to pay the Standard Oil Co. of New
York the amount of P3,971.20. This does not change the gratuitous nature of the
transmission of the property to him.
Same; Same; Same; The fact that the decedents last will and testament was never
probated may not be a bar to transmission of the estate where a partition agreement was
entered into which was based on the will itself.It is easy to deduce that if the Last Will
and Testament has in fact been probated there would have been no need for the
testamentary heirs to prepare a project of partition among themselves. The very will itself
could be made the basis for the adjudication of the estate as in fact they did in their project
of partition with Juanito Frias Chua getting one-half of Lot 399 by inheritance as a son of
the deceased Jose Frias Chua by the latters second marriage.

Same; Same; Same; Prescription; The cause of action of the reservees of a piece of
property subject to reserva troncal does not arise until the reservor dies. It must be
remembered that the petitioners herein are claiming as reservees of the property in
question and their cause of action as reservees did not arise until the time the reservor,
Consolation de la Torre, died in March 1966. When the petitioners therefore filed their
complaint to recover the one-half (1/2) portion of Lot 399, they were very much in time to do
so.

PETITION for review of the decision of the Court of First Instance of Negros
Occidental. Fernandez, J.
The facts are stated in the opinion of the Court.
Dominador G. Abaria andPrimitivo Blanca for private respondent.
Rodrigo O. Delfinado for petitioners.
MARTIN, J.:
Petition for review of the decision of the respondent Court which dismissed the
complaint of petitioners in Civil Case No. 7839-A, entitled Ignacio Frias Chua, et
al. vs. Susana de la Torre, Administratrix of the Intestate Estate of Consolacion de
la Torre.
It appears that in the first marriage of Jose Frias Chua with Patricia S.
Militaralias Sy Quio, he sired three children, namely: Ignacio, Lorenzo and Manuel,
all surnamed Frias Chua. When Patricia S. Militar died, Jose Frias Chua
contracted a second marriage with Consolacion de la Torre with whom he had a
child by the name of Juanito Frias Chua. Manuel Frias Chua died without leaving
any issue. Then in 1929, Jose Frias Chua died intestate leaving his widow
Consolacion de la Torre and his son Juanito Frias Chua of the second marriage and
sons Ignacio Frias Chua and Lorenzo Frias Chua of his first marriage. In Intestate
Proceeding No. 4816, the lower court issued an order dated January 15,
1931 adjudicating, among others, the one-half (1/2) portion of Lot No. 399 and the
sum of P8,000.00 in favor of Jose Frias Chuas widow, Consolacion de la Torre, the
other half of Lot No. 399 in favor of Juanito Frias Chua, his son in the second
marriage; P3,000.00 in favor of Lorenzo Frias Chua; and P1,550.00 in favor of
Ignacio Frias, Chua, his sons of the first marriage. By virtue of said adjudication,
1

Transfer Certificate of Title No. TR-980 (14483) dated April 28, 1932 was issued by
the Register of Deeds in the names of Consolacion de la Torre and Juanito Frias
Chua as owners pro-indiviso of Lot No. 399.
2

On February 27, 1952, Juanito Frias Chua of the second marriage died intestate
without any issue. After his death, his mother Consolacion de la Torre succeeded to
his pro-indivisio share of Lot No. 399. In a weeks time or on March 6, 1952,
Consolacion de la Torre executed a declaration of heirship adjudicating in her favor
the pro-indiviso share of her son Juanito as a result of which Transfer Certificate of
Title No. 31796 covering the whole Lot No. 399 was issued in her name. Then on
March 5, 1966, Consolacion de la Torre died intestate leaving no direct heir either in
the descending or ascending line except her brother and sisters.
In the Intestate Estate of Consolacion de la Torre, docketed as Sp. Proc. No.
7839-A, the petitioners herein, Ignacio Frias Chua, of the first marriage and
Dominador and Remedios Chua, the supposed legitimate children of the deceased
Lorenzo Frias Chua, also of the first marriage filed the complaint
a quo (subsequently segregated as a distinct suit and docketed as Civil Case No.
7889-A) on May 11, 1966 before the respondent Court of First Instance of Negros
Occidental, Branch V, praying that the one-half (1/2) portion of Lot No. 399 which
formerly belonged to Juanito Frias Chua but which passed to Consolacion de la
Torre upon the latters death, be declared as a reservable property for the reason
that the lot in question was subject to reserva troncal pursuant to Article 981 of the
New Civil Code. Private respondent as administratrix of the estate of Consolacion
de la Torre and the heirs of the latter traversed individually the complaint of
petitioners.
3

On July 29, 1968, the respondent Court rendered a decision dismissing the
complaint of petitioners. Hence this instant petition.
The pertinent provision on reserva troncal under the New Civil Code provides:
ART. 891. The ascendant who inherits from his descendant any property which the latter
may have acquired by gratuitous title from another ascendant, or a brother or sister, is
obliged to reserve such property as he may have acquired by operation of law for the benefit
of relatives who are within the third degree and belong to the line from which said property
came.

Pursuant to the foregoing provision, in order that a property may be impressed with
a reservable character the following requisites must exist, to wit: (1) that the
property was acquired by a descendant from an ascendant or from a brother or
sister by gratuitous title; (2) that said descendant died without an issue: (3) that the
property is inherited by another ascendant by operation of law; and (4) that there
are relatives within the third degree belonging to the line from which said property
came. In the case before Us, all of the foregoing requisites are present. Thus, as
borne out by the records, Juanito Frias Chua of the second marriage died intestate
in 1952; he died without leaving any issue; his pro-indiviso of 1/2 share of Lot No.
399 was acquired by his mother, Consolacion de la Torre by operation of law. When
Consolacion de la Torre died, Juanito Frias Chua who died intestate had relatives
within the third degree. These relatives are Ignacio Frias Chua and Dominador
Chua and Remedios Chua, the supposed legitimate children of the deceased Lorenzo
Frias Chua, who are the petitioners herein.
5

The crux of the problem in instant petition is focused on the first requisite
ofreserva troncalwhether the property in question was acquired by Juanito Frias
Chua from his father, Jose Frias Chua, gratuitously or not. In resolving this point
the respondent Court said:
It appears from Exh. 3, which is part of Exh. D, that the property in question, was not
acquired by Consolacion de la Torre and Juanito Frias Chua gratuitously but for a
consideration, namely, that the legatees wore to pay the interest and cost and other fees
resulting from Civil Case No. 5300 of this Court. As such it is undeniable that the lot in
question is not subject to a reserva troncal,under Art 891 of the New Civil Code, and as
such the plaintiffs complaint must fail.

We are not prepared to sustain the respondent Courts conclusion that the lot in
question is not subject to a reserva troncal under Art. 891 of the New Civil Code. It
is, As explained by Manresa which this Court quoted with approval in Cabardo v.
Villanueva, 44 Phil. 186, The transmission is gratuitous or by gratuitous title when
the recipient does not give anything in return. It matters not whether the property
transmitted be or be not subject to any prior charges; what is essential is that the
transmission be made gratuitously, or by an act of mere liberality of the person
making it, without imposing any obligation on the part of the recipient; and that the
person receiving the property gives or does nothing in return; or, as ably put by an
eminent Filipino commentator, the essential thing is that the person who
6

transmits it does so gratuitously, from pure generosity, without requiring from the
transferee any prestation. It is evident from the record that the transmission of the
property in question to Juanito Frias Chua of the second marriage upon the death
of his father Jose Frias Chua was by means of a hereditary succession and therefore
gratuitous. It is true that there is the order (Exh. D) of the probate Court in
Intestate Proceeding No. 4816 which states in express terms:
2.Se adjudicada por el presente a favor de Consolation de la Torre, viuda, mayor de edad,
y de su hijo, Juanito Frias Chua, menor de edad, todos residentes de San Enrique, Negros
Occidental, I.F., como herederos del finado Jose Frias Chua Choo, estas propiadades:
14483
La parcela de terreno conocida por Lote No. 399 del Catastro de la Carlota, Negros
Occidental, de 191.954 metros cuadrados y cubierto por el Certificado de Titulo No. 11759,
en partes equates pro-indiviso; por con la obligation de pagar a las Standard Oil Co. of New
York la d-euda de P3,971.20, sus intereses, costas y demos gastos resultantes del asunto civil
No. 5800 de este Juzgado.

But the obligation of paying the Standard Oil Co. of New York the amount of
P3,971.20 is imposed upon Consolation de la Torre and Juanito Frias Chua not
personally by the deceased Jose Frias Chua in his last will and testament but by an
order of the court in the Testate Proceeding No. 4816 dated January 15, 1931. As
long as the transmission of the property to the heirs is free from any condition
imposed by the deceased himself and the property is given out of pure generosity, it
is gratuitous. It does not matter if later the court orders one of the heirs, in this case
Juanito Frias Chua, to pay the Standard Oil Co. of New York the amount of
P3,971.20 This does not change the gratuitous nature of the transmission of the
property to him. As far as the deceased Jose Frias Chua is concerned the
transmission of the property to his heirs is gratuitous. This being the case the lot in
question is subject to reserva troncal under Art. 891 of the New Civil Code.
It is contended that the distribution of the shares of the estate of Jose Frias Chua
to the respondent heirs or legatees was agreed upon by the heirs in their project of
partition based on the last will and testament of Jose Frias Chua. But petitioners
claim that the supposed Last Will and Testament of Jose Frias Chua was never
probated. The fact that the will was not probated was admitted in paragraph 6 of
the respondents answer. There is nothing mentioned in the decision of the trial
7

court in Civil Case No. 7839A which is the subject of the present appeal nor in the
order of January 15, 1931 of the trial court in the Testate Estate Proceeding No.
4816 nor in the private respondents brief, that the Last Will and Testament of Jose
Frias Chua has ever been probated. With the foregoing, it is easy to deduce that if
the Last Will and Testament has in fact been probated there would have been no
need for the testamentary heirs to prepare a project of partition among themselves.
The very will itself could be made the basis for the adjudication of the estate as in
fact they did in their project of partition with Juanito Frias Chua getting one-half of
Lot 399 by inheritance as a son of the deceased Jose Frias Chua by the latters
second marriage.
According to the records, Juanito Frias Chua died on February 27, 1952 without
any issue. After his death his mother Consolacion de la Torre succeeded to his onehalf pro-indiviso share of Lot 399. This was, however, subject to the condition that
the property was reservable in character under Art. 891 of the Civil Code in favor of
relatives within the third degree of Jose Frias Chua from whom the property came.
These relatives are the petitioners herein.
It is claimed that the complaint of petitioners to recover the one-half portion of
Lot 399 which originally belonged to Juanito Frias Chua has already prescribed
when it was filed on May 11, 1966. We do not believe so. It must be remembered
that the petitioners herein are claiming as reservees of the property in question and
their cause of action as reservees did not arise until the time the reservor,
Consolacion de la Torre, died in March 1966. When the petitioners therefore filed
their complaint to recover the one-half (1/2) portion of Lot 399, they were very much
in time to do so.
IN VIEW OF THE FOREGOING, the decision appealed from is hereby set aside.
The petitioners Ignacio Frias Chua, Dominador Chua and Remedios Chua are
declared owners of 1/2 undivided portion of Lot 399; and the Register of Deeds of
Negros Occidental is hereby ordered to cancel. Transfer Certificate of Title No.
31796 covering Lot No. 399 issued in the name of Consolacion de la Torre and to
issue a new Certificate of Title in the names of Consolacion de la Torre, 1/2
undivided portion; Ignacio Frias Chua, 1/4 undivided portion; and Dominador Chua
and Remedios Chua, 1/4 undivided portion, of said lot. Without pronouncement as
to costs.

SO ORDERED.
Teehankee (Chairman), Makasiar,Muoz-Palma, Fernandez and Guerrero,
JJ., concur.
Decision set aside.
Notes.The better practice for the heir who has not received his share is to
demand his share through a proper motion in the same probate or administration
proceedings, or for reopening of the probate or administrative proceedings if it had
already been closed, and not through an independent action, which would be tried
by another court or Judge which may thus reverse a decision or order of the probate
court or intestate court already final and executed and reshuffle properties long ago
distributed and disposed of. (Guilas vs. Judge of CFI, 43 SCRA 111; Macias vs. Uy
Kim, 45 SCRA 251).
Foreign laws may not be taken judicial notice of and have to be proven like any
other fact in dispute between the parties in any proceedings with the rare exception
in instances when the said laws are already within the actual knowledge of the
court, such as when they are well and generally known or they have been actually
ruled upon in other cases before it and none of the parties concerned claim
otherwise. (Philippine Commercial and Industrial Bank vs. Escolin, 56 SCRA 266).
In an intestate succession, a grandniece of the deceased cannot participate with a
niece in the inheritance, because the latter being a nearer relative, the more distant
grandniece is excluded. Such being the case, the partition is void with respect to the
grandniece. (De los Santos vs. De la Cruz, 37 SCRA 555).
o0o

G.R. No. 176422.March 20, 2013.*

MARIA MENDOZA, in her own capacity and as Attorney-in-fact of
DEOGRACIAS,
MENDOZA,

MARCELA,

REMEDIOS

DIONISIA,

MONTILLA,

ADORACION,

FELY

all

surnamed

BAUTISTA,

JULIANA

GUILALAS and ELVIRA MENDOZA, petitioners, vs.JULIA POLICARPIO

DELOS SANTOS, substituted by her heirs, CARMEN P. DELOS SANTOS,

ROSA BUENAVENTURA, ZENAIDA P. DELOS SANTOS VDA. DE MATEO,

LEONILA P. DELOS SANTOS, ELVIRA P. DELOS SANTOS VDA. DE JOSE,
TERESITA

P.

DELOS

SANTOS-CABUHAT,

MERCEDITA

P.

DELOS

SANTOS, LYDIA P. DELOS SANTOS VDA. DE HILARIO, PERFECTO P.

DELOS SANTOS, JR., and CECILIA M. MENDOZA, respondents.

Remedial Law; Civil Procedure; Appeals; Petition for Review on Certiorari; The general
rule in this regard is that a petition for review on certiorari under Rule 45 of the Rules of
Court should raise only questions of law. There are, however, admitted exceptions to this rule,
one of which is when the Court of Appeals findings are contrary to those of the trial court.
This petition is one for review on certiorari under Rule 45 of the Rules of Court. The general
rule in this regard is that it should raise only questions of law. There are, however, admitted
exceptions to this rule, one of which is when the CAs findings are contrary to those of the
trial court. This being the case in the petition at hand, the Court must now look into the
differing findings and conclusion of the RTC and the CA on the two issues that ariseone,
whether the properties in dispute are reservable properties and two, whether petitioners
are entitled to a reservation of these properties.
Civil Law; Property; Succession; Reserva Troncal; There are three (3) lines of
transmission in reserva troncal. The first transmission is by gratuitous title, whether by
inheritance or donation, from an ascendant/brother/sister to a descendant called the
prepositus. The second transmission is by operation of law from the prepositus to the other
ascendant or reservor, also called the reservista. The third and last transmission is from the
reservista to the reservees or reservatarios who must be relatives within the third degree from

which the property came.The principle of reserva troncal is provided in Article 891 of the
Civil Code: Art.891. The ascendant who inherits from his descendant any property which
the latter may have acquired by gratuitous title from another ascendant, or a brother or
sister, is obliged to reserve such property as he may have acquired by operation of law for
the benefit of relatives who are within the third degree and belong to the line
from which said property came.(Emphasis ours) There are three (3) lines of
transmission in reserva troncal. The first transmission is by gratuitous title, whether by
inheritance or donation, from an ascendant/brother/sister to a descendant called
the prepositus. The second transmission is by operation of law from theprepositus to the
other ascendant or reservor, also called the reservista. The third and last transmission is
from the reservista to the reservees or reservatarios who must be relatives within the third
degree from which the property came.
Same; Same; Same; Same; Persons Involved in Reserva Troncal.The persons involved
in reserva troncal are: (1) The ascendant or brother or sister from whom the property was
received by the descendant by lucrative or gratuitous title; (2) The descendant
or prepositus (propositus) who received the property; (3) The reservor (reservista), the other
ascendant who obtained the property from the prepositus by operation of law; and (4) The
reservee (reservatario) who is within the third degree from the prepositusand who belongs
to the (linea o tronco) from which the property came and for whom the property should be
reserved by the reservor. It should be pointed out that the ownership of the properties
should be reckoned only from Exequiels as he is the ascendant from where the first
transmission occurred, or from whom Gregoria inherited the properties in dispute. The law
does not go farther than such ascendant/brother/sister in determining the lineal character
of the property. It was also immaterial for the CA to determine whether Exequiel
predeceased Placido and Dominga or whether Gregoria predeceased Exequiel. What is
pertinent is that Exequiel owned the properties and he is the ascendant from whom the
properties in dispute originally came. Gregoria, on the other hand, is the descendant who
received the properties from Exequiel by gratuitous title.
Same; Same; Same; Same; Article 891 of the Civil Code simply requires that the
property should have been acquired by the descendant or prepositus from an ascendant by
gratuitous or lucrative title. A transmission is gratuitous or by gratuitous title when the
recipient does not give anything in return.Article 891 simply requires that the property
should have been acquired by the descendant or prepositus from an ascendant by gratuitous
or lucrative title. A transmission is gratuitous or by gratuitous title when the recipient does
not give anything in return. At risk of being repetitious, what was clearly established in this
case is that the properties in dispute were owned by Exequiel (ascendant). After his death,
Gregoria (descendant/prepositus) acquired the properties as inheritance.

Same; Same; Same; Same; Collateral Relatives; In determining the collateral line of
relationship, ascent is made to the common ancestor and then descent to the relative from
whom the computation is made.Gregorias ascendants are her parents, Exequiel and
Leonor, her grandparents, great-grandparents and so on. On the other hand, Gregorias
descendants, if she had one, would be her children, grandchildren and great-grandchildren.
Not being Gregorias ascendants, both petitioners and Julia, therefore, are her collateral
relatives. In determining the collateral line of relationship, ascent is made to the common
ancestor and then descent to the relative from whom the computation is made. In the case
of Julias collateral relationship with Gregoria, ascent is to be made from Gregoria to her
mother Leonor (one line/degree), then to the common ancestor, that is, Julia and Leonors
parents (second line/degree), and then descent to Julia, her aunt (third line/degree). Thus,
Julia is Gregorias collateral relative within the third degree and not her ascendant.
Same; Same; Same; Same; Same; The person from whom the degree should be reckoned
is the descendant/prepositusthe one at the end of the line from which the property came
and upon whom the property last revolved by descent.Petitioners cannot be considered
reservees/reservatarios as they are not relatives within the third degree of Gregoria from
whom the properties came. The person from whom the degree should be reckoned is the
descendant/prepositusthe one at the end of the line from which the property came and
upon whom the property last revolved by descent. It is Gregoria in this case. Petitioners are
Gregorias

fourth

degree

relatives,

being

her

first

cousins. First

cousins

of

theprepositus are fourth degree relatives and are not reservees or reservatarios.
Same; Same; Same; Same; Relatives of the fourth and the succeeding degrees can never
be considered as reservatarios, since the law does not recognize them as such. They cannot
even claim representation of their predecessors Antonio and Valentin as Article 891 grants
a personal right of reservation only to the relatives up to the third degree from whom the
reservable properties came. The only recognized exemption is in the case of nephews and
nieces of the prepositus, who have the right to represent their ascendants (fathers and
mothers) who are the brothers/sisters of the prepositus and relatives within the third
degree. InFlorentino v. Florentino, the Court stated: Following the order prescribed by law
in legitimate succession, when there are relatives of the descendant within the third degree,
the right of the nearest relative, calledreservatario, over the property which
thereservista (person holding it subject to reservation) should return to him, excludes that
of the one more remote. The right of representation cannot be alleged when the one
claiming same as a reservatario of the reservable property is not among the relatives within
the third degree belong to the line from which such property came, inasmuch asthe right
granted by the Civil Code in [A]rticle 811 [now Article 891] is in the highest
degree personal and for the exclusive benefit of the designated persons who are
the relatives, within the third degree, of the person from whom the reservable

property came. Therefore,relatives of the fourth and the succeeding degrees can
never be considered as reservatarios, since the law does not recognize them as
such.x x x [N]evertheless there is right of representation on the part of reservatarios who
are within the third degree mentioned by law, as in the case of nephews of the deceased
person from whom the reservable property came. x x x. (Emphasis and underscoring ours)
23

Same; Same; Same; Same; In reserva troncal, the reservista who inherits from a
prepositus, whether by the latters wish or by operation of law, acquires the inheritance by
virtue of a title perfectly transferring absolute ownership; It is when the reservation takes
place or is extinguished, that a reservatario becomes, by operation of law, the owner of the
reservable property.The Court takes note of a palpable error in the RTCs disposition of
the case. In upholding the right of petitioners over the properties, the RTC ordered the
reconveyance of the properties to petitioners and the transfer of the titles in their names.
What the RTC should have done, assuming for arguments sake that reserva troncal is
applicable, is have the reservable nature of the property registered on respondents titles. In
fact, respondent, as reservista, has the duty to reserve and to annotate the reservable
character of the property on the title. Inreserva troncal, the reservista who inherits from
a prepositus, whether by the latters wish or by operation of law, acquires the inheritance by
virtue of a title perfectly transferring absolute ownership. All the attributes of ownership
belong to him exclusively. The reservor has the legal title and dominion to the reservable
property but subject to the resolutory condition that such title is extinguished if the
reservor predeceased the reservee. The reservor is a usufructuary of the reservable
property. He may alienate it subject to the reservation. The transferee gets the revocable
and conditional ownership of the reservor. The transferees rights are revoked upon the
survival of the reservees at the time of the death of the reservor but become indefeasible
when the reservees predecease the reservor. (Citations omitted) It is when the reservation
takes place or is extinguished, that a reservatariobecomes, by operation of law, the owner of
the reservable property. In any event, the foregoing discussion does not detract from the fact
that petitioners are not entitled to a reservation of the properties in dispute.

PETITION for review on certiorari of the decision and resolution of the Court of
Appeals.
The facts are stated in the opinion of the Court.
Gancayco, Balasbas and Associates Law Office for petitioners.
Manuel S. Obedoza, Jr. for respondents Carmen Delos Santos, et al.
REYES,J.:

Reserva troncal is a special rule designed primarily to assure the return of a

reservable property to the third degree relatives belonging to the line from which
the property originally came, and avoid its being dissipated into and by the relatives
of the inheriting ascendant.1
The Facts
The properties subject in the instant case are three parcels of land located in Sta.
Maria, Bulacan: (1) Lot 1681-B, with an area of 7,749 square meters; 2 (2) Lot 1684,
with an area of 5,667 sq m;3 and (3) Lot No. 1646-B, with an area of 880 sq m.4 Lot
Nos. 1681-B and 1684 are presently in the name of respondent Julia Delos
Santos5 (respondent). Lot No. 1646-B, on the other hand, is also in the name of
respondent but co-owned by Victoria Pantaleon, who bought one-half of the property
from petitioner Maria Mendoza and her siblings.
Petitioners are grandchildren of Placido Mendoza (Placido) and Dominga
Mendoza (Dominga). Placido and Dominga had four children: Antonio, Exequiel,
married

to

Leonor, Apolonioand Valentin.

Petitioners

Maria,

Deogracias,

Dionisia, Adoracion, Marcela and Ricardo are the children of Antonio. Petitioners
Juliana, Fely, Mercedes, Elvira and Fortunato, on the other hand, are Valentins
children. Petitioners alleged that the properties were part of Placido and Domingas
properties that were subject of an oral partition and subsequently adjudicated to
Exequiel. After Exequiels death, it passed on to his spouse Leonor and only
daughter, Gregoria. After Leonors death, her share went to Gregoria. In 1992,
Gregoria died intestate and without issue. They claimed that after Gregorias death,
respondent, who is Leonors sister, adjudicated unto herself all these properties as
the sole surviving heir of Leonor and Gregoria. Hence, petitioners claim that the
properties should have been reserved by respondent in their behalf and must now
revert back to them, applying Article 891 of the Civil Code on reserva troncal.
Respondent, however, denies any obligation to reserve the properties as these did
not originate from petitioners familial line and were not originally owned by Placido
and Dominga. According to respondent, the properties were bought by Exequiel and
Antonio from a certain Alfonso Ramos in 1931. It appears, however, that it was only
Exequiel who was in possession of the properties.6

The Regional Trial Court (RTC) of Malolos, Bulacan, Branch 6, found merit in
petitioners claim and granted their action for Recovery of Possession byReserva
Troncal, Cancellation of TCT and Reconveyance. In its Decision dated November 4,
2002, the RTC disposed as follows:
WHEREFORE, premised from the foregoing judgment [is] hereby rendered:
1.Ordering [respondents] (heirs of Julia Policarpio) to reconvey the three (3) parcels of
land subject of this action in the name of the plaintiffs enumerated in the complaint
including intervenor Maria Cecilia M. Mendoza except one-half of the property described in
the old title[,] TCT No. T-124852(M) which belongs to Victorina Pantaleon;
2.Ordering the Register of Deeds of Bulacan to cancel the titles in the name of Julia
Policarpio[,] TCT No. T-149033(M), T-183631(M) and T-149035(M) and reconvey the same to
the enumerated plaintiffs; [and]
3.No pronouncement as to claims for attorneys fees and damages and costs.
SO ORDERED.

On appeal, the Court of Appeals (CA) reversed and set aside the RTC decision
and dismissed the complaint filed by petitioners. The dispositive portion of the CA
Decision dated November 16, 2006 provides:
WHEREFORE, premises considered, the November 4, 2002 Decision of the Regional
Trial Court, Br. 6, Third Judicial Region, Malolos, Bulacan, is REVERSED and SET
ASIDE. The Third Amended Complaint in Civil Case No. 609-M-92 is herebyDISMISSED.
Costs against the Plaintiffs-Appellants.
SO ORDERED.

Petitioners filed a motion for reconsideration but the CA denied the same per
Resolution9 dated January 17, 2007.
In dismissing the complaint, the CA ruled that petitioners failed to establish that
Placido and Dominga owned the properties in dispute. 10 The CA also ruled that even
assuming that Placido and Dominga previously owned the properties, it still cannot

be subject toreserva troncal as neither Exequiel predeceased Placido and Dominga

nor did Gregoria predecease Exequiel.11
Now before the Court, petitioners argue that:
A.
THE HONORABLE [CA] GRIEVOUSLY ERRED IN HOLDING THAT THE SUBJECT
PROPERTIES ARE NOT RESERVABLE PROPERTIES, COMING AS THEY DO FROM
THE FAMILY LINE OF THE PETITIONERS MENDOZAS.
B.
THE HONORABLE [CA] GRIEVOUSLY ERRED IN HOLDING THAT THE
PETITIONERS MENDOZAS DO NOT HAVE A RIGHT TO THE SUBJECT PROPERTIES
BY VIRTUE OF THE LAW ON RESERVA TRONCAL.
12

Petitioners take exception to the ruling of the CA, contending that it is sufficient
that the properties came from the paternal line of Gregoria for it to be subject
to reserva troncal. They also claim the properties in representation of their own
predecessors, Antonio and Valentin, who were the brothers of Exequiel.13
Ruling of the Court
This petition is one for review oncertiorari under Rule 45 of the Rules of Court.
The general rule in this regard is that it should raise only questions of law. There
are, however, admitted exceptions to this rule, one of which is when the CAs
findings are contrary to those of the trial court. 14 This being the case in the petition
at hand, the Court must now look into the differing findings and conclusion of the
RTC and the CA on the two issues that ariseone, whether the properties in
dispute are reservable properties and two, whether petitioners are entitled to a
reservation of these properties.
Article

891

of

the

Civil

on reserva troncal
The principle of reserva troncal is provided in Article 891 of the Civil Code:

Code

Art.891.The ascendant who inherits from his descendant any property which the
latter may have acquired by gratuitous title from another ascendant, or a brother or sister,
is obliged to reserve such property as he may have acquired by operation of law for the
benefit of relatives who are within the third degree and belong to the line from
which said property came. (Emphasis ours)

There are three (3) lines of transmission in reserva troncal. The first
transmission is by gratuitous title, whether by inheritance or donation, from an
ascendant/brother/sister

to

descendant

called

the prepositus.

Thesecond

transmission is by operation of law from the prepositus to the other ascendant or

reservor, also called thereservista. The third and last transmission is from
the reservista to the reservees or reservatarios who must be relatives within the
third degree from which the property came.15
The
property
dant

lineal
is
from

character
reckoned
whom

of
from
the

the

reservable
the

prepositus

ascenre-

ceived the property by gratuitous title

Based on the circumstances of the present case, Article 891 on reserva troncal is
not applicable.
The fallacy in the CAs resolution is that it proceeded from the erroneous premise
that Placido is the ascendant contemplated in Article 891 of the Civil Code. From
thence, it sought to trace the origin of the subject properties back to Placido and
Dominga, determine whether Exequiel predeceased Placido and whether Gregoria
predeceased Exequiel.
The persons involved in reserva troncal are:
(1)The ascendant or brother or sister from whom the property was received by
the descendant by lucrative or gratuitous title;
(2)The descendant or prepositus (propositus) who received the property;
(3)The reservor (reservista), the other ascendant who obtained the property
from the prepositus by operation of law; and

(4)The reservee (reservatario) who is within the third degree from

theprepositus and who belongs to the (linea o tronco) from which the property
came and for whom the property should be reserved by the reservor. 16
It should be pointed out that the ownership of the properties should be reckoned
only from Exequiels as he is the ascendant from where the first transmission
occurred, or from whom Gregoria inherited the properties in dispute. The law does
not go farther than such ascendant/brother/sister in determining the lineal
character of the property.17 It was also immaterial for the CA to determine whether
Exequiel predeceased Placido and Dominga or whether Gregoria predeceased
Exequiel. What is pertinent is that Exequiel owned the properties and he is the
ascendant from whom the properties in dispute originally came. Gregoria, on the
other hand, is the descendant who received the properties from Exequiel by
gratuitous title.
Moreover, Article 891 simply requires that the property should have been
acquired by the descendant or prepositusfrom an ascendant by gratuitous or
lucrative title. A transmission is gratuitous or by gratuitous title when the recipient
does not give anything in return.18 At risk of being repetitious, what was clearly
established in this case is that the properties in dispute were owned by Exequiel
(ascendant). After his death, Gregoria (descendant/prepositus) acquired the
properties as inheritance.
Ascendants,
collateral

descendants
relatives

under

and
Article

964 of the Civil Code

Article 891 provides that the person obliged to reserve the property should be an
ascendant (also known as the reservor/reservista) of the descendant/prepositus.
Julia, however, is not Gregorias ascendant; rather, she is Gregorias collateral
relative.
Article 964 of the Civil Code provides for the series of degrees among ascendants
and descendants, and those who are not ascendants and descendants but come from
a common ancestor, viz.:
Art.964.A series of degrees forms a line, which may be either direct or collateral.

A direct line is that constituted by the series of degrees among ascendants and
descendants.
A collateral line is that constituted by the series of degrees among persons who are not
ascendants and descendants, but who come from a common ancestor. (Emphasis and
italics ours)

Gregorias ascendants are her parents, Exequiel and Leonor, her grandparents,
great-grandparents and so on. On the other hand, Gregorias descendants, if she
had one, would be her children, grandchildren and great-grandchildren. Not being
Gregorias ascendants, both petitioners and Julia, therefore, are her collateral
relatives. In determining the collateral line of relationship, ascent is made to the
common ancestor and then descent to the relative from whom the computation is
made. In the case of Julias collateral relationship with Gregoria, ascent is to be
made from Gregoria to her mother Leonor (one line/degree), then to the common
ancestor, that is, Julia and Leonors parents (second line/degree), and then descent
to Julia, her aunt (third line/degree). Thus, Julia is Gregoriascollateral relative
within the third degree and not her ascendant.
First

cousins

prepositus

are

of
fourth

the

descendant/
degree

rela-

tives and cannot be considered reservees/reservatarios

Moreover,
petitioners
cannot
be
considered
reservees/
reservatarios as they are not relatives within the third degree of Gregoria from
whom the properties came. The person from whom the degree should be reckoned is
the descendant/prepositusthe one at the end of the line from which the property
came and upon whom the property last revolved by descent. 19 It is Gregoria in this
case. Petitioners are Gregorias fourth degree relatives, being her first cousins. First
cousins of theprepositus are fourth degree relatives and are not reservees
orreservatarios.20
They cannot even claim representation of their predecessors Antonio and
Valentin as Article 891 grants a personal right of reservation only to the relatives
up to the third degree from whom the reservable properties came. The only
recognized exemption is in the case of nephews and nieces of the prepositus, who
have the right to represent their ascendants (fathers and mothers) who are the

brothers/sisters
of
the prepositus and
relatives
21
22
degree. InFlorentino v. Florentino, the Court stated:

within

the

third

Following the order prescribed by law in legitimate succession, when there are relatives
of the descendant within the third degree, the right of the nearest relative,
calledreservatario, over the property which thereservista (person holding it subject to
reservation) should return to him, excludes that of the one more remote. The right of
representation cannot be alleged when the one claiming same as a reservatario of the
reservable property is not among the relatives within the third degree belong to the line
from which such property came, inasmuch asthe right granted by the Civil Code in
[A]rticle 811 [now Article 891] is in the highest degree personal and for the
exclusive benefit of the designated persons who are the relatives, within the third
degree,

of

the

person

from

whom

the

reservable

property

came.

Therefore,relatives of the fourth and the succeeding degrees can never be

considered as reservatarios, since the law does not recognize them as such.
x x x [N]evertheless there is right of representation on the part of reservatarioswho are
within the third degree mentioned by law, as in the case of nephews of the deceased person
from whom the reservable property came. x x x. (Emphasis and underscoring ours)
23

The conclusion, therefore, is that while it may appear that the properties are
reservable in character, petitioners cannot benefit from reserva troncal. First,
because Julia, who now holds the properties in dispute, is not the other ascendant
within the purview of Article 891 of the Civil Code and second, because petitioners
are not Gregorias relatives within the third degree. Hence, the CAs disposition that
the complaint filed with the RTC should be dismissed, only on this point, is correct.
If at all, what should apply in the distribution of Gregorias estate are Articles 1003
and 1009 of the Civil Code, which provide:
Art. 1003.If there are no descendants, ascendants, illegitimate children, or a surviving
spouse, the collateral relatives shall succeed to the entire estate of the deceased in
accordance with the following articles.
Art. 1009.Should there be neither brothers nor sisters, nor children of brothers or
sisters, the other collateral relatives shall succeed to the estate.
The latter shall succeed without distinction of lines or preference among them by reason
of relationship by the whole blood.

Nevertheless, the Court is not in the proper position to determine the proper
distribution of Gregorias estate at this point as the cause of action relied upon by
petitioners in their complaint filed with the RTC is based solely on reserva troncal.
Further, any determination would necessarily entail reception of evidence on
Gregorias entire estate and the heirs entitled thereto, which is best accomplished in
an action filed specifically for that purpose.
A

reservista

of

the

the

reservation

acquires
reservable
takes

ownership
property

place

until
or

is

extinguished
Before concluding, the Court takes note of a palpable error in the RTCs disposition of the case. In
upholding the right of petitioners over the properties, the RTC ordered the reconveyance of the
properties to petitioners and the transfer of the titles in their names. What the RTC should have
done, assuming for arguments sake that reserva troncal is applicable, is have the reservable nature
of the property registered on respondents titles. In fact, respondent, as reservista, has the duty to
reserve and to annotate the reservable character of the property on the title. 24 In reserva troncal,
thereservista who inherits from a prepositus, whether by the latters wish or by operation of law,
acquires the inheritance by virtue of a title perfectly transferring absolute ownership. All the
attributes of ownership belong to him exclusively.25
The reservor has the legal title and dominion to the reservable property but subject to the resolutory
condition that such title is extinguished if the reservor predeceased the reservee. The reservor is a usufructuary
of the reservable property. He may alienate it subject to the reservation. The transferee gets the revocable and
conditional ownership of the reservor. The transferees rights are revoked upon the survival of the reservees at
the time of the death of the reservor but become indefeasible when the reservees predecease the
reservor. (Citations omitted)
26

It is when the reservation takes place or is extinguished, 27 that a reservatariobecomes, by

operation of law, the owner of the reservable property. 28 In any event, the foregoing discussion does
not detract from the fact that petitioners are not entitled to a reservation of the properties in dispute.
WHEREFORE, the petition is DENIED. The Decision dated November 16, 2006 and Resolution
dated January 17, 2007 of the Court of Appeals in CA-G.R. CV No. 77694 insofar as it dismissed the
Third Amended Complaint in Civil CaseNo. 609-M-92 are AFFIRMED. This Decision is without
prejudice to any civil action that the heirs of Gregoria Mendoza may file for the settlement of her
estate or for the determination of ownership of the properties in question.

SO ORDERED.
Sereno (C.J., Chairperson), Leonardo-De Castro, Bersamin andVillarama, Jr., JJ., concur.
Petition denied, judgment and resolution affirmed.
Notes.Our laws do not prohibit the probate of wills executed by foreigners abroad although the
same have not as yet been probated and allowed in the countries of their execution. ( Palaganas vs.
Palaganas, 640 SCRA 538 [2011])
Preterition is the total omission of a compulsory heir from the inheritanceit consists in the
silence of the testator with regard to a compulsory heir, omitting him in the testament, either by not
mentioning him at all, or by not giving him anything in the hereditary property but without
expressly disinheriting him, even if he is mentioned in the will in the latter case. (Heirs of Policronio
M. Ureta, Sr. vs. Heirs of Liberato M. Ureta, 657 SCRA 555 [2011])

[No. 7890. September 29, 1914.]

FILOMENA PECSON, as administratrix of the last will and testament of Florencio
Pecson et al., plaintiffs and appellants,vs. ROSARIO MEDIAVILLO, defendant and
appellee.
DESCENT AND DISTRIBUTION;DISINHERITANCE.Disinheritance of a lawful
heir can only be made for one of the causes expressly fixed by law. (Arts. 848, 756, 853,
and 849, Civil Code.) Such disinheritance can only be effected by a will in which shall be
mentioned the legal grounds or causes for such disinheritance. Article 850 of the Civil
Code provides that the reason for the disinheritance shall be established by the heirs of
the testator. In other words, if the person disinherited shall deny the truthfulness of the
cause of disinheritance, he may be permitted to support his allegations by proof. (Art.
851, Civil Code.) In accordance with the foregoing provisions of the Civil Code, courts
may inquire into the justice of a disinheritance, and if they find that the disinheritance
was without cause, that part of the will may be pronounced null and void.

APPEAL from a judgment of the Court of First Instance of Albay. Moir, J.

The facts are stated in the opinion of the court.
S, E. Imperial for appellants.
Tomas Lorayes for appellee.

JOHNSON, J.;
It appears from the record that some time prior to the 17th day of September, 1910,
the last will and testament of Florencio Pecson was presented to the Court of First
Instance of the Province of Albay for probate. Mr. Tomas Lorayes, an attorney at
law, opposed the legalization of the will on the ground that it had not been
authorized nor signed by the deceased, in accordance with the provisions of the Code
of Civil Procedure. After hearing the respective parties, the Honorable Percy M.
Moir, judge, found that the will had been signed and executed in accordance with
the provisions of law, and denied the opposition on the 17th day of September, 1910.
On the 18th day of September, 1910, the said Tomas Lorayes, representing Basiliso
Mediavillo and Rosario Mediavillo, presented a motion in the words following:
1. "1.That Rosario Mediavillo is and Joaquin Mediavillo was a legitimate child of the
deceased Teresa Pecson, who also was a daughter of the testator, Florencio Pecson,
and therefore the first mentioned is and the second was a grandchild of the latter.
2. "2.That the said granddaughter, Rosario Mediavillo y Pecson, was disinherited by
her grandfather, the testator Florencio Pecson, according to clause 3 of the will,
because she failed to show him due respect and on a certain occasion raised her
hand against him.
3. "3.That the interested party did not commit such an act, and if perhaps she did, it
was due to the derangement of her mental faculties which occurred a long time ago
and from which she now suffers in periodical attacks.

"By reason of all the foregoing and because the disinheriting clause 3 of the will is
unfounded, the undersigned prays the court to annul the said clause and to make
the testator's grandchildren, Rosario and Joaquin Mediavillo (the latter died
without succession, but is represented now by his father, Basiliso Mediavillo),
participants in the estate left by their grandfather; and, finally, that the court grant
such other relief as it may deem just and equitable."
After a consideration .of the question presented by said motion, the lower court,
on the 22d day of September, 1911, rendered the following decision:
"This case has come up to-day for a hearing on the declaration of heirs of the
deceased Florencio Pecson, who died in Daraga, about the year 1910.

"From the evidence it appears that the deceased had eight children by his wife
Nicolasa Manjares, likewise deceased, which c hildren are those named
Emerenciano, Teresa, Filomena, Asuncion, Rufino, Zoila, Emiliano, and Perfecto, all
surnamed Pecson. It also appears that Rufino Pecson absented himself from these
Islands twenty-five years ago, going to Australia, and that nothing has been heard of
him for the past twenty years. The said Rufino Pecson left no children in the
Philippines and was unmarried when he emigrated. As nothing has been heard of
him for twenty years, it is presumed that he died and it is held that the part of this
estate to which he was entitled must be divided among the other heirs.
"It also appears from the evidence that Teresa Pecson married Basiliso
Mediavillo, by whom she had two children, Joaquin and Rosario Mediavillo. Teresa
also died, leaving these two children and her husband, Basiliso Mediavillo. Her son
Joaquin died. unmarried and childless, before the death of the testator, Florencio
Pecson. Rosario is the only living daughter of Teresa and the latter's husband,
Basiliso Mediavillo, is also living. The evidence shows that this girl Rosario became
insane in 1895, when she went to Nueva Caceres to study in college, and it has been
proved that it was previous to this date that she disobeyed her grandfather and
raised her hand against him, and, as the testator states in the third paragraph of
his will, he disinherited her. This court understands that this Rosario, who was
then 14 years of age, and who shortly afterwards became insane, was not
responsible for her acts and should not have been disinherited by her grandfather.
"The court therefore decrees that this part of the will is contrary to law and sets
it aside as being of no force or value whatever, The court further holds that Rosario
Mediavillo, the daughter of Teresa Pecson, is the heiress of the one-half of the share
of this estate pertaining to the said Teresa, and that her father, as the heir of his
son Joaquin, also. Teresa's son, is the heir of the other one-half of the said share
pertaining to Teresathat is, of the oneseventh of this estate that pertains to the
latter. Moreover, the court decrees that, besides the two heirs just above mentioned,
Emerciano, Filomena, Asuncion, Zoila, Emiliano, and Perfecto, surnamed Pecson,
and the children -of Teresa, are also heirs of the estate of Florencio Pecson."
From that decision the plaintiff appealed to this court and made the following
assignments of error:
"FIRST ERROR.

"The lower court erred in finding' that the part of the will which disinherits Rosario
Mediavillo is contrary to law, and in setting it aside as being of no force or value whatever.
"SECOND ERROR.
"The lower court erred by decreeing that Basiliso Mediavillo, the father of Joaquin
Mediavillo, is the heir by representation of the one-half of the one-seventh of this estate
pertaining to Joaquin Mediavillo."

With reference to the first assignment of error it may be said that from the record it
appears that during the lifetime of Florencio Pecson he had been married to
Nicolasa Manjares, with whom he had eight children, named Filomena, Asuncion,
Zoila, Emerenciano, Emiliano, Perfecto, Rufino and Teresa Pecson; that before the
death of Florencio Pecson he executed and delivered the will in question. The will
made no provision for the said Rufino Pecson,. neither was there any provision in
the will for the said Teresa. All of the other children were named as heirs in said
will. It appears that Teresa had been married with one Basiliso Mediavillo, and that
some time before the making of the will in question she died, leaving her husband
and two children, Joaquin Mediavillo and Rosario Mediavillo, as her heirs. It also
appears from the record that Joaquin Mediavillo died without heirs, leaving as the
only heirs of the said Teresa Pecson, her husband, Basiliso Mediavillo and the said
Rosario Mediavillo. The said Joaquin Mediavillo died before his grandfather,
Florencio Pecson, and probably before the will in question was made.
Paragraph 3 of the will disinherited Rosario Mediavillo in the following language:
"I declare that one of my daughters, named Teresa, now deceased, left a legitimate
daughter named Rosario Mediavillo. I also declare that I disinherit my granddaughter, the
said Rosario Mediavillo, because she was grossly disrespectful to me and because on one
occasion, when it was I do not remember.she raised her hand against me. Therefore, it is my
will that t he s aid Ros ario Media villo shal no share in my property."

The defendant Rosario Mediavillo, in the motion which she presented and which is
copied above, alleges that she was disinherited without cause. Upon a consideration
of that question, the lower court found that she had been disinherited without caus
e a nd annul led said para g ra the will. That order of the lower court constitutes the
error complained of by the appellant in her first assignment of error.

By reference to said paragraph 3 above quoted, it will be seen that Florencio

Pecson disinherited the said Rosario Mediavillo "because sh e w as gros sly
disrespec tf ul to because on one occasion, when it was I do not remember, she
raised her hand against me. Therefore it is my will that she, the said Rosario
Mediavillo, shall have no share in my property.''
The lower court admitted proof upon the question of the responsibility of the said
Rosario Mediavillo at the time she offered the offense to her grandfather, Florencio
Pecson. After hearing the proof, the lower court reached the following conclusion:
"The evidence shows that this girl Rosario became insane in 1895, when she went
to Nueva Caceres to study in college, and it has been proved that it was previous to
this date that she disobeyed her grandfather and raised her hand against him, and,
as the testator states in the third paragraph of his will, he disinherited her, This
court understands that this Rosario, who was then 14 years of age, and who shortly
afterwards became insane, was not responsible for her acts and should not have
been disinherited by her grandfather."
The first assignment of error presents the question whether or not the courts,
when a parent disinherits his children, may inquire into the cause of the
disinheritance and decide that there was or was not ground for such disinheritance.
The Civil Code (art. 848) provides that disinheritance shall only take place for one of
the causes expressly fixed by law. In accordance with the provisions of that article
(848) we find that articles 756 and 853 provide the cases or causes for
disinheritance; or, in other words, the cases or causes in which the ancestors may by
will disinherit their heirs. Article 849 of the Civil Code provides that the
disinheritance can only be effected by the testament, in which shall be mentioned
the legal grounds or causes for such disinheritance. If it is true that heirs can be
disinherited only by will, and for causes mentioned in the Civil Code, it would seem
to follow that the courts might properly inquire whether the disinheritance has been
made properly and for the causes provided for by law. The right of the courts to
inquire into the causes and whether there was sufficient cause for the
disinheritance or not, seems to be supported by express provisions of the Civil Code.
Article 850 provides that "the proof' of the truthfulness of the reason for
disinheritance shall be established by the heirs of the testator, should the
disinherited person deny it." It would appear then that if the person disinherited
should deny the truthfulness of the cause of disinheritance, he might be permitted

to support his allegation by proof. The right of the court to inquire whether or not
the disinheritance was made for just cause is also sustained by the provisions of
article 851, which in part provides that:
"Disinheritance made without statement of the reason, or for a cause the truth of
which, if contradicted, should not be proven * * * shall annul the designation of
heirship, in so far as it prejudices the person disinherited."
It seems clear from the above-quoted provisions, that the courts may inquire into the justice of a
disinheritance such as was attempted in the present case, and if they find that the disinheritance
was without cause, that part of the testament or will may be pronounced null and void. It remains,
however, to be seen whether the evidence adduced during the trial of the present cause was sufficient
to show that the disinheritance made in paragraph 3 of the will was made for just cause. It appears
from the record that when Rosario Mediavillo was about 14 years of age, she had received some
attentions from a young manthat she had received a letter from himand that her grandf ather,
Florencio Pecson, took occasion to talk to her about the relations between her and the said young
man; that it was upon that occasion when, it is alleged, the disobedience and disrespect were shown
to her grandfather, and that was the cause for her disinheritance by her grandfather. The record
shows that very soon after said event she lost the use of her mental powers and that she has never
regained them, except for very brief periods, up to the present time. The lower court, taking into
consideration her tender years, and the fact that she very soon thereafter lost the use of her mental
faculties, reached the conclusion that she was probably not responsible for the disrespect and
disobedience shown to her grandfather in the year 1894 or 1895.
After a careful consideration of the record, we are inclined to believe that the same supports the
.conclusions of the lower court and that he did not commit the error complained of in the first
assignment of error.
With reference to the second assignment of error, it will be remembered that Teresa Pecson, the
mother of Rosario Mediavillo, at the time of her death left two children, Rosario and Joaquin, and
her husband Basiliso Mediavillo, and that the said Joaquin Mediavillo died without heirs. The lower
court gave one-half of the inheritance of the said Teresa Pecson to Rosario Mediavillo and the share
that would have gone to Joaquin Mediavillo, to his father Basiliso Mediavillo. In that conclusion of
the lower court we think error was committed. The appellant relies upon the provisions of article 925
of the Civil Code, in his contention that the lower court committed an error. Article 925 provides
that:

"The right of representation shall always take place in the direct descending line, but never in the ascending. In
collateral lines, it shall take place only in favor of the children of brothers or sisters, whether they be of the
whole or half blood."

The appellee, in support of the conclusions of the lower court, cites articles 935 and 936 of the Civil
Code. Article 935 provides that:
"In the absence of legitimate children and descendants of the deceased, his ascendants shall inherit from him, to
the exclusion of collaterals."

Article 936 provides that:

"The father and mother, if living, shall inherit share and share alike. If one of them only survive, he or she shall
succeed to the son's entire estate."

It will be remembered that the whole argument of the appellants with reference to the first
assignment of error was that Rosario Mediavillo had been disinherited and the court evidently
believed that there were no "legitimate children, descendants of the deceased, surviving," and that
therefore the father or mother of said legitimate children would inherit as ascendants. Inasmuch,
however, as there was a descendant in the direct line, surviving, the inheritance could not ascend,
and for that reason the lower court committed an error in declaring that Basiliso Mediavillo was
entitled to inherit that share of the estate that would have belonged to Joaquin Mediavillo , h ad he b
een liv ing. T fore, and for all of the foregoing, that part of the judgment of the lower court nullifying
and setting aside paragraph 3 of the will is hereby affirmed, and that part of said judgment which
decrees to Basiliso Mediavillo one-half of the estate of Florencio Pecson; belonging to Teresa Pecson
and which would have been given to Joaquin Mediavillo, had he been surviving, is hereby revoked.
And without any finding as to costs, it is hereby ordered that the cause be remanded to the lower
court, with direction that judgment be entered in accordance herewith. and that such further
proceedings be had as the interested parties may deem necessary, for the purpose of disposing of that
part of the inheritance of Teresa Pecson which would have belonged to Joaquin Mediavillo, had he
been surviving.
Torres, Carson, and Moreland, JJ.,concur.
ARELLANO, C. J., concurring:
I agree with the second part of the decision reversing the judgment appealed from.
ARAULLO, J., dissenting:

I do not agree with that part of the decision which affirms the judgment appealed from.
Case remanded with instructions.
____________

TESTATE ESTATE
VDA.

DE

[No. 48627. February 19, 1943]

OF

VICENTE SINGSON PABLO,deceased. ROSALIA ROSARIO

SINGSON, petitioner-appellee, vs.JOSEFINA

LIM, oppositor-appellee, EMILIA

FLORENTINA

ET.

F.

VDA.

DE

AL.,oppositors-

appellees, EVARISTO SINGSON ET AL., oppositors-appellants.

DESCENT AND DISTRIBUTION; INTERPRETATION OF TESTAMENTARY PROVISION IN
CONNECTION WITH ARTICLE 751 OF THE CIVIL CODE. Don Vicente Singson
Pablo, a lawyer, died without any descendant or ascendant, his nearest surviving
relatives being his widow, four brothers, and four nieces, the children of a deceased sister. He left a will which was duly probated, clause 8 of which provides
that "all of my properties not disposed of otherwise in this testament shall be
distributed in equal parts to all who are entitled thereto." Article 751 of the Civil
Code, in turn, provides that "a disposition made in general terms in favor of the
testator's relatives shall be understood as made in favor of those nearest in
degree." The authorities differ on the interpretation of article 751. Some hold
that under said article the nephews and nieces inherit by representation together
with the brothers and sisters of the testator, as in legal succession; while others,
Manresa among them, hold that said article excludes nephews and nieces when
brothers and sisters survive. Held:That the testator, by referring to "all who are
entitled thereto," instead of referring to his "relatives," precisely meant to avoid
the uncertainty of the interpretation of article 751 and to indicate his wish that
the residue of his estate be distributed in equal parts to all who would have been
entitled to inherit from him had he died intestate.
APPEAL from an order of the Court of First Instance of Ilocos Sur. Bautista, J.
The facts are stated in the opinion of the court.
M. H. de Joya and Evaristo Singsonfor appellants.
Teofilo Mendoza and Vicente Paz for appellees.
OZAETA,J.:

Don Vicente Singson Pablo, a lawyer of Vigan, Ilocos Sur, died on April 15,1938,
without any descendant or ascendant, his nearest surviving relatives being his
widow Dona Rosalia Rosario, four brothers, and four nieces, the children of a
deceased sister. He left a will which was duly probated, clause 8 of which reads as
follows:

"Octavo.Ordeno y mando que todos mis bienes no dispuestos de otro modo en este
testamento, se distribuirn en partes iguales a todos los que tienen derecho a ello."
The widow, as administratrix, presented a project of partition in which the properties
not disposed of in the will were adjudicated to the four brothers and the four nieces of the
deceased "in the proportion provided in paragraph 8 of the will." The brothers, appellants
herein, objected to the project of partition insofar as it includes the nieces of the deceased,
on the ground that under clause 8 of the will, in relation to article 751 of the Civil Code,
they were not entitled to any share. The nieces also objected to the project of partition,
alleging that certain other specified properties had been omitted therefrom, which formed
part of the properties not disposed of and which under clause 8 of the will "should be
distributed in equal parts to all who are entitled thereto." The trial court sustained the
contention of the nieces (appellees herein) and ordered the administratrix "to amend the
project of partition so as to include therein the said properties and that all of those not dis posed of in the will be adjudicated in equal parts to the brothers and nieces of the
deceased."
The only question raised in this appeal is the interpretation of clause 8 of the will above
quoted. Said clause provides that "all of my properties not disposed of otherwise in this
testament shall be distributed in equal parts to all who are entitled thereto." In this
connection appellants invoke article 751 of the Civil Code, which provides that "a
disposition made in general terms in favor of the testator's relatives shall be understood as
made in favor of those nearest in degree."

The trial court noted that the testator, who was a lawyer, did not use the word
"relatives" in the clause in question. We do not need to decide here whether, had the
testator used the word "relatives," the nieces would be excluded.
The authorities differ on the interpretation of article 751. Some hold that under
said article the nephews and nieces inherit by representation together with the
brothers and sisters of the testator, as in legal succession; while others, Manresa
among them, hold that said article excludes nephews and nieces when brothers and
sisters survive. We think the testator, by referring to "all who are entitled thereto,"
instead of referring to his "relatives," precisely meant to avoid the uncertainty of the
interpretation of article 751 and to indicate his wish that the residue of his estate

be distributed in equal parts to all who would have been entitled to inherit from him
had he died intestate.
The order appealed from is affirmed, with costs. So ordered.
Yulo, C. J., Moran, Paras, andBocobo, J J., concur.
Order affirmed.

G.R. No. 155733. January 27, 2006.

IN THE MATTER OF THE INTESTATE ESTATES OF THE DECEASED JOSEFA

DELGADO AND GUILLERMO RUSTIA
CARLOTA DELGADO VDA. DE DE LA ROSA and other HEIRS OF LUIS
DELGADO, namely, HEIRS OF CONCHA VDA. DE AREVALO, HEIRS OF LUISA

DELGADO VDA. DE DANAO, ANGELA DELGADO ARESPACOCHAGA, TERESA

DELGADO PERLAS, CAROLINA DELGADO-ARESPACOCHAGA, RODOLFO
DELGADO, BENJAMIN DELGADO, GLICERIA DELGADO and CLEOFAS
DELGADO; and HEIRS OF GORGONIO DELGADO, namely, RAMON DELGADO
CAMPO, CARLOS DELGADO CAMPO, CLARITA DELGADO CAMPO-REIZA,
YOLANDA DELGADO ENCINAS, FELISA DELGADO CAMPO-ENCINAS and
MELINDA
DELGADO
CAMPO-MADARANG,
petitioners, vs. HEIRS
OF
MARCIANA RUSTIA VDA. DE DAMIAN, namely, GUILLERMO R. DAMIAN and
JOSE R. DAMIAN; HEIRS OF HORTENCIA RUSTIA CRUZ, namely, TERESITA
CRUZ-SISON, HORACIO R. CRUZ, JOSEFINA CRUZ-RODIL, AMELIA CRUZENRIQUEZ and FIDEL R. CRUZ, JR.; HEIRS OF ROMAN RUSTIA, SR., namely,
JOSEFINA RUSTIA ALBANO, VIRGINIA RUSTIA PARAISO, ROMAN RUSTIA,
JR., SERGIO RUSTIA, FRANCISCO RUSTIA, LETICIA RUSTIA-MIRANDA; and
GUILLERMINA RUSTIA, as Oppositors; and GUILLERMA RUSTIA, as
Intervenor, respondents.
1

Civil Law; Marriages; Although a marriage contract is considered a primary evidence of

marriage, its absence is not always proof that no marriage in fact took place.Although a
marriage contract is considered a primary evidence of marriage, its absence is not always
proof that no marriage in fact took place. Once the presumption of marriage arises, other
evidence may be presented in support thereof. The evidence need not necessarily or directly
establish the marriage but must at least be enough to strengthen the presumption of
marriage. Here, the certificate of identity issued to Josefa Delgado as Mrs. Guillermo
Rustia, the passport issued to her as Josefa D. Rustia, the declaration under oath of no less
than Guillermo Rustia that he was married to Josefa Delgado and the titles to the
properties in the name of Guillermo Rustia married to Josefa Delgado, more than
adequately support the presumption of marriage. These are public documents which
are prima facie evidence of the facts stated therein. No clear and convincing evidence
sufficient to overcome the presumption of the truth of the recitals therein was presented by
petitioners.
Same; Same; Persons dwelling together apparently in marriage are presumed to be in
fact married.Petitioners failed to rebut the presumption of marriage of Guillermo Rustia
and Josefa Delgado. In this jurisdiction, every intendment of the law leans toward
legitimizing matrimony. Persons dwelling together apparently in marriage are presumed to
be in fact married. This is the usual order of things in society and, if the parties are not
what they hold themselves out to be, they would be living in constant violation of the
common rules of law and propriety. Semper praesumitur pro matrimonio. Always presume
marriage.

Same; Same; Presumptions of law are either conclusive or disputable.Presumptions of

law are either conclusive or disputable. Conclusive presumptions are inferences which the
law makes so peremptory that no contrary proof, no matter how strong, may overturn them.
On the other hand, disputable presumptions, one of which is the presumption of marriage,
can be relied on only in the absence of sufficient evidence to the contrary.
Same; Succession; The right of representation in the collateral line takes place only in
favor of the children of brothers and sisters (nephews and nieces); It cannot be exercised by
grandnephews and grandnieces.We note, however, that the petitioners before us are
already the nephews, nieces, grandnephews and grandnieces of Josefa Delgado. Under
Article 972 of the new Civil Code, the right of representation in the collateral line takes
place only in favor of the children of brothers and sisters (nephews and nieces).
Consequently, it cannot be exercised by grandnephews and grandnieces. Therefore, the only
collateral relatives of Josefa Delgado who are entitled to partake of her intestate estate are
her brothers and sisters, or their children who were still alive at the time of her death on
September 8, 1972. They have a vested right to participate in the inheritance. The records
not being clear on this matter, it is now for the trial court to determine who were the
surviving brothers and sisters (or their children) of Josefa Delgado at the time of her death.
Together with Guillermo Rustia, they are entitled to inherit from Josefa Delgado in
accordance with Article 1001 of the new Civil Code:
Same; Same; Adjudication by an heir of the decedents entire estate to himself by means
of an affidavit is allowed only if he is the sole heir of the estate.Since Josefa Delgado had
heirs other than Guillermo Rustia, Guillermo could not have validly adjudicated Josefas
estate all to himself. Rule 74, Section 1 of the Rules of Court is clear. Adjudication by an
heir of the decedents entire estate to himself by means of an affidavit is allowed only if he is
the sole heir to the estate.
Same; Paternity and Filiation; Under the new law, recognition may be compulsory or
voluntary; Cases of Compulsory Recognition.Under the new law, recognition may be
compulsory or voluntary. Recognition is compulsory in any of the following cases: (1) in
cases of rape, abduction or seduction, when the period of the offense coincides more or less
with that of the conception; (2) when the child is in continuous possession of status of a
child of the alleged father (or mother) by the direct acts of the latter or of his family; (3)
when the child was conceived during the time when the mother cohabited with the
supposed father; (4) when the child has in his favor any evidence or proof that the defendant
is his father. On the other hand, voluntary recognition may be made in the record of birth, a
will, a statement before a court of record or in any authentic writing.

Same; Same; Dual limitation in a judicial action for compulsory acknowledgement: the
lifetime of the child and the lifetime of the putative parent.There was apparently no doubt
that she possessed the status of an illegitimate child from her birth until the death of her
putative father Guillermo Rustia. However, this did not constitute acknowledgment but
a mere ground by which she could have compelled acknowledgment through the courts.
Furthermore, any (judicial) action for compulsory acknowledgment has a dual limitation:
the lifetime of the child and the lifetime of the putative parent. On the death of either, the
action for compulsory recognition can no longer be filed. In this case, intervenor Guillermas
right to claim compulsory acknowledgment prescribed upon the death of Guillermo Rustia
on February 28, 1974.
Same; Same; An authentic writing, for purposes of voluntary recognition, is understood
as a genuine or indubitable writing of the parent.The claim of voluntary recognition
(Guillermas second ground) must likewise fail. An authentic writing, for purposes of
voluntary recognition, is understood as a genuine or indubitable writing of the parent (in
this case, Guillermo Rustia). This includes a public instrument or a private writing
admitted by the father to be his. Did intervenors report card from the University of Santo
Tomas and Josefa Delgados obituary prepared by Guillermo Rustia qualify as authentic
writings under the new Civil Code? Unfortunately not. The report card of intervenor
Guillerma did not bear the signature of Guillermo Rustia. The fact that his name appears
there as intervenors parent/guardian holds no weight since he had no participation in its
preparation. Similarly, while witnesses testified that it was Guillermo Rustia himself who
drafted the notice of death of Josefa Delgado which was published in the Sunday Times on
September 10, 1972, that published obituary was not the authentic writing contemplated by
the law. What could have been admitted as an authentic writing was the original
manuscript of the notice, in the handwriting of Guillermo Rustia himself and signed by
him, not the newspaper clipping of the obituary. The failure to present the original signed
manuscript was fatal to intervenors claim.
Remedial Law; Settlement of Estate;Administrator; Words and Phrases; An
administrator is a person appointed by the court to administer the intestate estate of the
decedent; Order of preference in the appointment of an administrator prescribes in Section 6,
Rule 78 of the Rules of Court.An administrator is a person appointed by the court to
administer the intestate estate of the decedent. Rule 78, Section 6 of the Rules of Court
prescribes an order of preference in the appointment of an administrator.
Same; Same; Same; In the appointment of an administrator, the principal consideration
is the interest in the estate of the one to be appointed; Order of preference does not rule out
the appointment of co-administrators specially in cases where justice and equity demand
that opposing parties or factions be represented in the management of the estates.In the

appointment of an administrator, the principal consideration is the interest in the estate of

the one to be appointed. The order of preference does not rule out the appointment of coadministrators, specially in cases where justice and equity demand that opposing parties or
factions be represented in the management of the estates, a situation which obtains here.

PETITION for review on certiorari of a decision of the Court of Appeals.

The facts are stated in the opinion of the Court.
Emilia Vidanes-Baloing andPadilla Law Office for petitioners.
Inocentes, Untalan, Untalan, Lacuanan & Associates Law Office for intervenor
G.S. Rustia.
CORONA, J.:
In this petition for review on certiorari, petitioners seek to reinstate the May 11,
1990 decision of the Regional Trial Court (RTC) of Manila, Branch 55, in SP Case
No. 97668, which was reversed and set aside by the Court of Appeals in its
decision dated October 24, 2002.
4

Facts of the Case

This case concerns the settlement of the intestate estates of Guillermo Rustia and
Josefa Delgado. The main issue in this case is relatively simple: who, between
petitioners and respondents, are the lawful heirs of the decedents. However, it is
attended by several collateral issues that complicate its resolution.
6

The claimants to the estates of Guillermo Rustia and Josefa Delgado may be
divided into two groups: (1) the alleged heirs of Josefa Delgado, consisting of her
half- and full-blood siblings, nephews and nieces, and grandnephews and grandnieces, and (2) the alleged heirs of Guillermo Rustia, particularly, his sisters, his
nephews and nieces, his illegitimate child, and the de facto adopted child (ampunampunan) of the decedents.
7

10

The Alleged Heirs of Josefa Delgado

The deceased Josefa Delgado was the daughter of Felisa Delgado by one Lucio
Campo. Aside from Josefa, five other children were born to the couple, namely,
11

Nazario, Edilberta, Jose, Jacoba, and Gorgonio, all surnamed Delgado. Felisa
Delgado was never married to Lucio Campo, hence, Josefa and her full-blood
siblings were all natural children of Felisa Delgado.
However, Lucio Campo was not the first and only man in Felisa Delgados life.
Before him was Ramon Osorio with whom Felisa had a son, Luis Delgado. But,
unlike her relationship with Lucio Campo which was admittedly one without the
benefit of marriage, the legal status of Ramon Osorios and Felisa Delgados union is
in dispute.
12

The question of whether Felisa Delgado and Ramon Osorio ever got married is
crucial to the claimants because the answer will determine whether their
successional rights fall within the ambit of the rule against reciprocal intestate
succession between legitimate and illegitimate relatives. If Ramon Osorio and
Felisa Delgado had been validly married, then their only child Luis Delgado was a
legitimate half-blood brother of Josefa Delgado and therefore excluded from the
latters intestate estate. He and his heirs would be barred by the principle of
absolute separation between the legitimate and illegitimate families. Conversely, if
the couple were never married, Luis Delgado and his heirs would be entitled to
inherit from Josefa Delgados intestate estate, as they would all be within the
illegitimate line.
13

Petitioners allege that Ramon Osorio and Felisa Delgado were never married. In
support thereof, they assert that no evidence was ever presented to establish it, not
even so much as an allegation of the date or place of the alleged marriage. What is
clear, however, is that Felisa retained the surname Delgado. So did Luis, her son
with Ramon Osorio. Later on, when Luis got married, his Partida de
Casamiento stated that he was hijo natural de Felisa Delgado (the natural child of
Felisa Delgado), significantly omitting any mention of the name and other
circumstances of his father. Nevertheless, oppositors (now respondents) insist that
the absence of a record of the alleged marriage did not necessarily mean that no
marriage ever took place.
14

15

16

Josefa Delgado died on September 8, 1972 without a will. She was survived by
Guillermo Rustia and some collateral relatives, the petitioners herein. Several
months later, on June 15, 1973, Guillermo Rustia executed an affidavit of selfadjudication of the remaining properties comprising her estate.

The Marriage of Guillermo Rustia and Josefa Delgado

Sometime in 1917, Guillermo Rustia proposed marriage to Josefa Delgado but
whether a marriage in fact took place is disputed. According to petitioners, the two
eventually lived together as husband and wife but were never married. To prove
their assertion, petitioners point out that no record of the contested marriage
existed in the civil registry. Moreover, a baptismal certificate naming Josefa Delgado
as one of the sponsors referred to her as Seorita or unmarried woman.
17

The oppositors (respondents here), on the other hand, insist that the absence of a
marriage certificate did not of necessity mean that no marriage transpired. They
maintain that Guillermo Rustia and Josefa Delgado were married on June 3, 1919
and from then on lived together as husband and wife until the death of Josefa on
September 8, 1972. During this period spanning more than half a century, they were
known among their relatives and friends to have in fact been married. To support
their proposition, oppositors presented the following pieces of evidence:
1. 1.Certificate of Identity No. 9592 dated [December 1, 1944] issued to Mrs. Guillermo
J. Rustia by Carlos P. Romulo, then Resident Commissioner to the United States of
the Commonwealth of the Philippines;
2. 2.Philippine Passport No. 4767 issued to Josefa D. Rustia on June 25, 1947;
3. 3.Veterans Application for Pension or Compensation for Disability Resulting from
Service in the Active Military or Naval Forces of the United States- Claim No. C-4,
004, 503 (VA Form 526) filed with the Veterans Administration of the United States
of America by Dr. Guillermo J. Rustia wherein Dr. Guillermo J. Rustia himself
[swore] to his marriage to Josefa Delgado in Manila on 3 June 1919;
18

4. 4.Titles to real properties in the name of Guillermo Rustia indicated that he was
married to Josefa Delgado.

The Alleged Heirs of Guillermo Rustia

Guillermo Rustia and Josefa Delgado never had any children. With no children of
their own, they took into their home the youngsters Guillermina Rustia Rustia and
Nanie Rustia. These children, never legally adopted by the couple, were what was
known in the local dialect asampun-ampunan.

During his life with Josefa, however, Guillermo Rustia did manage to father an
illegitimate child, the intervenor-respondent Guillerma Rustia, with one Amparo
Sagarbarria. According to Guillerma, Guillermo Rustia treated her as his daughter,
his own flesh and blood, and she enjoyed open and continuous possession of that
status from her birth in 1920 until her fathers demise. In fact, Josefa Delgados
obituary which was prepared by Guillermo Rustia, named the intervenorrespondent as one of their children. Also, her report card from the University of
Santo Tomas identified Guillermo Rustia as her parent/guardian.
19

20

Oppositors (respondents here) nonetheless posit that Guillerma Rustia has no

interest in the intestate estate of Guillermo Rustia as she was never duly
acknowledged as an illegitimate child. They contend that her right to compulsory
acknowledgement prescribed when Guillermo died in 1974 and that she cannot
claim voluntary acknowledgement since the documents she presented were not the
authentic writings prescribed by the new Civil Code.
21

On January 7, 1974, more than a year after the death of Josefa Delgado,
Guillermo Rustia filed a petition for the adoption of their ampunampunanGuillermina Rustia. He stated under oath [t]hat he ha[d] no legitimate,
legitimated, acknowledged natural children or natural children by legal
fiction. The petition was overtaken by his death on February 28, 1974.
22

23

Like Josefa Delgado, Guillermo Rustia died without a will. He was survived by
his sisters Marciana Rustia Vda. deDamian and Hortencia Rustia-Cruz, and by the
children of his predeceased brother Roman Rustia Sr., namely, Josefina Rustia
Albano, Virginia Rustia Paraiso, Roman Rustia, Jr., Sergio Rustia, Francisco Rustia
and Leticia Rustia Miranda.
24

Antecedent Proceedings
On May 8, 1975, Luisa Delgado Vda. deDanao, the daughter of Luis Delgado, filed
the original petition for letters of administration of the intestate estates of the
spouses Josefa Delgado and Guillermo Rustia with the RTC of Manila, Branch
55. This petition was opposed by the following: (1) the sisters of Guillermo Rustia,
namely, Marciana Rustia vda. de Damian and Hortencia Rustia-Cruz; (2) the heirs
of Guillermo Rustias late brother, Roman Rustia, Sr., and (3) the ampunampunan Guillermina Rustia Rustia. The opposition was grounded on the theory
25

26

that Luisa Delgado Vda. de Danao and the other claimants were barred under the
law from inheriting from their illegitimate half-blood relative Josefa Delgado.
In November of 1975, Guillerma Rustia filed a motion to intervene in the
proceedings, claiming she was the only surviving descendant in the direct line of
Guillermo Rustia. Despite the objections of the oppositors (respondents herein), the
motion was granted.
On April 3, 1978, the original petition for letters of administration was amended
to state that Josefa Delgado and Guillermo Rustia were never married but had
merely lived together as husband and wife.
On January 24, 1980, oppositors (respondents herein) filed a motion to dismiss
the petition in the RTC insofar as the estate of Guillermo Rustia was concerned.
The motion was denied on the ground that the interests of the petitioners and the
other claimants remained in issue and should be properly threshed out upon
submission of evidence.
On March 14, 1988, Carlota DelgadoVda. de de la Rosa substituted for her sister,
Luisa Delgado Vda. de Danao, who had died on May 18, 1987.
On May 11, 1990, the RTC appointed Carlota Delgado vda. de de la Rosa as
administratrix of both estates. The dispositive portion of the decision read:
27

WHEREFORE, in view of all the foregoing, petitioner and her co-claimants to the estate of
the late Josefa Delgado listed in the Petitions, and enumerated elsewhere in this Decision,
are hereby declared as the only legal heirs of the said Josefa Delgado who died intestate in
the City of Manila on September 8, 1972, and entitled to partition the same among
themselves in accordance with the proportions referred to in this Decision.
Similarly, the intervenor Guillerma S. Rustia is hereby declared as the sole and only
surviving heir of the late Dr. Guillermo Rustia, and thus, entitled to the entire estate of the
said decedent, to the exclusion of the oppositors and the other parties hereto.
The Affidavit of Self-Adjudication of the estate of Josefa Delgado executed by the late
Guillermo J. Rustia on June 15, 1973 is hereby SET ASIDE and declared of no force and
effect.

As the estates of both dece[d]ents have not as yet been settled, and their settlement [is]
considered consolidated in this proceeding in accordance with law, a single administrator
therefor is both proper and necessary, and, as the petitioner Carlota Delgado Vda. de dela
Rosa has established her right to the appointment as administratrix of the estates, the
Court hereby APPOINTS her as the ADMINISTRATRIX of the intestate estate of the
decedent JOSEFA DELGADO in relation to the estate of DR. GUILLERMO J. RUSTIA.
Accordingly, let the corresponding LETTERS OF ADMINISTRATION issue to the
petitioner CARLOTA DELGADO VDA. DE DE LA ROSA upon her filing of the requisite
bond in the sum of FIVE HUNDRED THOUSAND PESOS (P500,000.00).
Finally, oppositor GUILLERMINA RUSTIA RUSTIA is hereby ordered to cease and desist
from her acts of administration of the subject estates, and is likewise ordered to turn over to
the appointed administratix all her collections of the rentals and income due on the assets
of the estates in question, including all documents, papers, records and titles pertaining to
such estates to the petitioner and appointed administratrix CARLOTA DELGADO VDA.
DE DE LA ROSA, immediately upon receipt of this Decision. The same oppositor is hereby
required to render an accounting of her actual administration of the estates in controversy
within a period of sixty (60) days from receipt hereof.
SO ORDERED.

28

On May 20, 1990, oppositors filed an appeal which was denied on the ground that
the record on appeal was not filed on time. They then filed a petition for certiorari
and mandamus which was dismissed by the Court of Appeals. However, on motion
for reconsideration and after hearing the parties oral arguments, the Court of
Appeals reversed itself and gave due course to oppositors appeal in the interest of
substantial justice.
29

30

31

32

In a petition for review to this Court, petitioners assailed the resolution of the
Court of Appeals, on the ground that oppositors failure to file the record on appeal
within the reglementary period was a jurisdictional defect which nullified the
appeal. On October 10, 1997, this Court allowed the continuance of the appeal. The
pertinent portion of our decision read:
33

As a rule, periods prescribed to do certain acts must be followed. However, under

exceptional circumstances, a delay in the filing of an appeal may be excused on grounds of
substantial justice.
xxx

xxx

xxx

The respondent court likewise pointed out the trial courts pronouncements as to certain
matters of substance, relating to the determination of the heirs of the decedents and the
party entitled to the administration of their estate, which were to be raised in the appeal,
but were barred absolutely by the denial of the record on appeal upon too technical ground
of late filing.
xxx

xxx

xxx

In this instance, private respondents intention to raise valid issues in the appeal is
apparent and should not have been construed as an attempt to delay or prolong the
administration proceedings.
xxx

xxx

xxx

A review of the trial courts decision is needed.

xxx

xxx

xxx

WHEREFORE, in view of the foregoing considerations, the Court hereby AFFIRMS the
Resolution dated November 27, 1991 of the Court of Appeals in CA-G.R. SP No. 23415, for
the APPROVAL of the private respondents Record on Appeal and the CONTINUANCE of
the appeal from the Manila, Branch LV Regional Trial Courts May 11, 1990 decision.
SO ORDERED.

Acting on the appeal, the Court of Appeals partially set aside the trial courts
decision. Upon motion for reconsideration, the Court of Appeals amended its earlier
decision. The dispositive portion of the amended decision read:
34

35

36

With the further modification, our assailed decision is RECONSIDERED and VACATED.
Consequently, the decision of the trial court is REVERSED and SET ASIDE. A new one is
hereby RENDERED declaring: 1.) Dr. Guillermo Rustia and Josefa Delgado Rustia to have
been legally married; 2.) the intestate estate of Dr. Guillermo Rustia, Jacoba DelgadoEncinas and the children of Gorgonio Delgado (Campo) entitled to partition among
themselves the intestate estate of Josefa D. Rustia in accordance with the proportion
referred to in this decision; 3.) the oppositors-appellants as the legal heirs of the late Dr.
Guillermo Rustia and thereby entitled to partition his estate in accordance with the
proportion referred to herein; and 4.) the intervenor-appellee Guillerma S. Rustia as
ineligible to inherit from the late Dr. Guillermo Rustia; thus revoking her appointment as
administratrix of his estate.

The letters of administration of the intestate estate of Dr. Guillermo Rustia in relation to
the intestate estate of Josefa Delgado shall issue to the nominee of the oppositorsappellants upon his or her qualification and filing of the requisite bond in the sum of FIVE
HUNDRED THOUSAND PESOS (P500,000.00).
Oppositor-appellant Guillermina Rustia Rustia is hereby ordered to cease and desist
from her acts of administration of the subject estates and to turn over to the appointed
administrator all her collections of the rentals and incomes due on the assets of the estates
in question, including all documents, papers, records and titles pertaining to such estates to
the appointed administrator, immediately upon notice of his qualification and posting of the
requisite bond, and to render an accounting of her (Guillermina Rustia Rustia) actual
administration of the estates in controversy within a period of sixty (60) days from notice of
the administrators qualification and posting of the bond.
The issue of the validity of the affidavit of self-adjudication executed by Dr. Guillermo
Rustia on June 15, 1973 is REMANDED to the trial court for further proceedings to
determine the extent of the shares of Jacoba Delgado-Encinas and the children of Gorgonio
Delgado (Campo) affected by the said adjudication.

Hence, this recourse.

The issues for our resolution are:
1. 1.whether there was a valid marriage between Guillermo Rustia and Josefa Delgado;
2. 2.who the legal heirs of the decedents Guillermo Rustia and Josefa Delgado are;
3. 3.who should be issued letters of administration.

The Marriage of Guillermo Rustia and Josefa Delgado

A presumption is an inference of the existence or nonexistence of a fact which courts
are permitted to draw from proof of other facts. Presumptions are classified into
presumptions of law and presumptions of fact. Presumptions of law are, in turn,
either conclusive or disputable.
37

Rule 131, Section 3 of the Rules of Court provides:

Sec. 3. Disputable presumptions.The following presumptions are
uncontradicted, but may be contradicted and overcome by other evidence:

satisfactory

if

xxx

xxx

xxx

(aa) That a man and a woman deporting themselves as husband and wife have entered
into a lawful contract of marriage;
xxx

xxx

xxx

In this case, several circumstances give rise to the presumption that a valid
marriage existed between Guillermo Rustia and Josefa Delgado. Their cohabitation
of more than 50 years cannot be doubted. Their family and friends knew them to be
married. Their reputed status as husband and wife was such that even the original
petition for letters of administration filed by Luisa Delgado Vda. de Danao in 1975
referred to them as spouses.
Yet, petitioners maintain that Josefa Delgado and Guillermo Rustia had simply
lived together as husband and wife without the benefit of marriage. They make
much of the absence of a record of the contested marriage, the testimony of a
witness attesting that they were not married, and a baptismal certificate which
referred to Josefa Delgado as Seorita or unmarried woman.
38

39

We are not persuaded.

First, although a marriage contract is considered a primary evidence of marriage,
its absence is not always proof that no marriage in fact took place. Once the
presumption of marriage arises, other evidence may be presented in support thereof.
The evidence need not necessarily or directly establish the marriage but must at
least be enough to strengthen the presumption of marriage. Here, the certificate of
identity issued to Josefa Delgado as Mrs. Guillermo Rustia, the passport issued to
her as Josefa D. Rustia, the declaration under oath of no less than Guillermo
Rustia that he was married to Josefa Delgado and the titles to the properties in the
name of Guillermo Rustia married to Josefa Delgado, more than adequately
support the presumption of marriage. These are public documents which areprima
facie evidence of the facts stated therein. No clear and convincing evidence
sufficient to overcome the presumption of the truth of the recitals therein was
presented by petitioners.
40

41

42

43

44

Second, Elisa Vda. de Anson, petitioners own witness whose testimony they
primarily relied upon to support their position, confirmed that Guillermo Rustia

had proposed marriage to Josefa Delgado and that eventually, the two had lived
together as husband and wife. This again could not but strengthen the presumption
of marriage.
Third, the baptismal certificate was conclusive proof only of the baptism
administered by the priest who baptized the child. It was no proof of the veracity of
the declarations and statements contained therein, such as the alleged single or
unmarried (Seorita) civil status of Josefa Delgado who had no hand in its
preparation.
45

46

Petitioners failed to rebut the presumption of marriage of Guillermo Rustia and

Josefa Delgado. In this jurisdiction, every intendment of the law leans toward
legitimizing matrimony. Persons dwelling together apparently in marriage are
presumed to be in fact married. This is the usual order of things in society and, if
the parties are not what they hold themselves out to be, they would be living in
constant violation of the common rules of law and propriety.Semper prae-sumitur
pro matrimonio. Always presume marriage.
47

The Lawful Heirs Of Josefa Delgado

To determine who the lawful heirs of Josefa Delgado are, the questioned status of
the cohabitation of her mother Felisa Delgado with Ramon Osorio must first be
addressed.
As mentioned earlier, presumptions of law are either conclusive or disputable.
Conclusive presumptions are inferences which the law makes so peremptory that no
contrary proof, no matter how strong, may overturn them. On the other hand,
disputable presumptions, one of which is the presumption of marriage, can be relied
on only in the absence of sufficient evidence to the contrary.
48

Little was said of the cohabitation or alleged marriage of Felisa Delgado and
Ramon Osorio. The oppositors (now respondents) chose merely to rely on the
disputable presumption of marriage even in the face of such countervailing evidence
as (1) the continued use by Felisa and Luis (her son with Ramon Osorio) of the
surname Delgado and (2) Luis Delgados and Caridad ConcepcionsPartida de
Casamiento identifying Luis as hijo natural de Felisa Delgado (the natural child
of Felisa Delgado).
49

50

All things considered, we rule that these factors sufficiently overcame the
rebuttable presumption of marriage. Felisa Delgado and Ramon Osorio were never
married. Hence, all the children born to Felisa Delgado out of her relations with
Ramon Osorio and Lucio Campo, namely, Luis and his half-blood siblings Nazario,
Edilberta, Jose, Jacoba, Gorgonio and the decedent Josefa, all surnamed
Delgado, were her natural children.
51

52

Pertinent to this matter is the following observation:

Suppose, however, that A begets X with B, and Y with another woman, C; then X and Y
would be natural brothers and sisters, but of half-blood relationship. Can they succeed each
other reciprocally?
The law prohibits reciprocal succession between illegitimate children and legitimate
children of the same parent, even though there is unquestionably a tie of blood between
them. It seems that to allow an illegitimate child to succeed ab intestato (from) another
illegitimate child begotten with a parent different from that of the former, would be
allowing the illegitimate child greater rights than a legitimate child. Notwithstanding this,
however, we submit that succession should be allowed, even when the illegitimate brothers
and sisters are only of the half-blood. The reason impelling the prohibition on reciprocal
successions between legitimate and illegitimate families does not apply to the case under
consideration. That prohibition has for its basis the difference in category between
illegitimate and legitimate relatives. There is no such difference when all the children are
illegitimate children of the same parent, even if begotten with different persons. They all
stand on the same footing before the law, just like legitimate children of half-blood relation.
We submit, therefore, that the rules regarding succession of legitimate brothers and sisters
should be applicable to them. Full blood illegitimate brothers and sisters should receive
double the portion of half-blood brothers and sisters; and if all are either of the full blood or
of the half-blood, they shall share equally.
53

Here, the above-named siblings of Josefa Delgado were related to her by full-blood,
except Luis Delgado, her half-brother. Nonetheless, since they were all illegitimate,
they may inherit from each other. Accordingly, all of them are entitled to inherit
from Josefa Delgado.
We note, however, that the petitioners before us are already the nephews, nieces,
grandnephews and grandnieces of Josefa Delgado. Under Article 972 of the new
Civil Code, the right of representation in the collateral line takes place only in favor
of the children of brothers and sisters (nephews and nieces). Consequently, it cannot

be exercised by grandnephews and grandnieces. Therefore, the only collateral

relatives of Josefa Delgado who are entitled to partake of her intestate estate are
her brothers and sisters, or their children who were still alive at the time of her death
on September 8, 1972. They have a vested right to participate in the
inheritance. The records not being clear on this matter, it is now for the trial court
to determine who were the surviving brothers and sisters (or their children) of
Josefa Delgado at the time of her death. Together with Guillermo Rustia, they are
entitled to inherit from Josefa Delgado in accordance with Article 1001 of the new
Civil Code:
54

55

56

57

Art. 1001. Should brothers and sisters or their children survive with the widow or widower,
the latter shall be entitled to one-half of the inheritance and the brothers and sisters or
their children to the other one-half.

Since Josefa Delgado had heirs other than Guillermo Rustia, Guillermo could not
have validly adjudicated Josefas estate all to himself. Rule 74, Section 1 of the
Rules of Court is clear. Adjudication by an heir of the decedents entire estate to
himself by means of an affidavit is allowed only if he is the sole heir to the estate:
SECTION 1. Extrajudicial settlement by agreement between heirs.If the decedent left no
will and no debts and the heirs are all of age, or the minors are represented by their judicial
or legal representatives duly authorized for the purpose, the parties may, without securing
letters of administration, divide the estate among themselves as they see fit by means of a
public instrument filed in the office of the register of deeds, and should they disagree, they
may do so in an ordinary action of partition. If there is only one heir, he may
adjudicate to himself the estate by means of an affidavit filed in the office of the
register of deeds. x x x (emphasis supplied)

The Lawful Heirs Of Guillermo Rustia

Intervenor (now co-respondent) Guillerma Rustia is an illegitimate child of
Guillermo Rustia. As such, she may be entitled to successional rights only upon
proof of an admission or recognition of paternity. She, however, claimed the status
of an acknowledged illegitimate child of Guillermo Rustia only after the death of the
latter on February 28, 1974 at which time it was already the new Civil Code that
was in effect.
58

59

Under the old Civil Code (which was in force till August 29, 1950), illegitimate
children absolutely had no hereditary rights. This draconian edict was, however,
later relaxed in the new Civil Code which granted certain successional rights to
illegitimate children but only on condition that they were first recognized or
acknowledged by the parent.
Under the new law, recognition may be compulsory or voluntary. Recognition is
compulsory in any of the following cases:
60

1. (1)in cases of rape, abduction or seduction, when the period of the offense coincides
more or less with that of the conception;
2. (2)when the child is in continuous possession of status of a child of the alleged father
(or mother) by the direct acts of the latter or of his family;
61

3. (3)when the child was conceived during the time when the mother cohabited with the
supposed father;
4. (4)when the child has in his favor any evidence or proof that the defendant is his
father.
62

On the other hand, voluntary recognition may be made in the record of birth, a will,
a statement before a court of record or in any authentic writing.
63

Intervenor Guillerma sought recognition on two grounds: first, compulsory

recognition through the open and continuous possession of the status of an
illegitimate child and second, voluntary recognition through authentic writing.
There was apparently no doubt that she possessed the status of an illegitimate
child from her birth until the death of her putative father Guillermo Rustia.
However, this did not constitute acknowledgment but a mere ground by which she
could have compelled acknowledgment through the courts. Furthermore, any
(judicial) action for compulsory acknowledgment has a dual limitation: the lifetime
of the child and the lifetime of the putative parent. On the death of either, the
action for compulsory recognition can no longer be filed. In this case, intervenor
Guillermas right to claim compulsory acknowledgment prescribed upon the death of
Guillermo Rustia on February 28, 1974.
64

65

66

The claim of voluntary recognition (Guillermas second ground) must likewise

fail. An authentic writing, for purposes of voluntary recognition, is understood as a
genuine or indubitable writing of the parent (in this case, Guillermo Rustia). This
includes a public instrument or a private writing admitted by the father to be
his. Did intervenors report card from the University of Santo Tomas and Josefa
Delgados obituary prepared by Guillermo Rustia qualify as authentic writings
under the new Civil Code? Unfortunately not. The report card of intervenor
Guillerma did not bear the signature of Guillermo Rustia. The fact that his name
appears there as intervenors parent/guardian holds no weight since he had no
participation in its preparation. Similarly, while witnesses testified that it was
Guillermo Rustia himself who drafted the notice of death of Josefa Delgado which
was published in the Sunday Times on September 10, 1972, that published obituary
was not the authentic writing contemplated by the law. What c ould hav e b een
admitted as an authentic writing was the original manuscript of the notice, in the
handwriting of Guillermo Rustia himself and signed by him, not the newspaper
clipping of the obituary. The failure to present the original signed manuscript was
fatal to intervenors claim.
67

The same misfortune befalls theampun-ampunan, Guillermina Rustia Rustia,

who was never adopted in accordance with law. Although a petition for her adoption
was filed by Guillermo Rustia, it never came to fruition and was dismissed upon the
latters death. We affirm the ruling of both the trial court and the Court of Appeals
holding her a legal stranger to the deceased spouses and therefore not entitled to
inherit from them ab intestato. We quote:
Adoption is a juridical act, a proceeding in rem, which [created] between two persons a
relationship similar to that which results from legitimate paternity and filiation. Only an
adoption made through the court, or in pursuance with the procedure laid down under Rule
99 of the Rules of Court is valid in this jurisdiction. It is not of natural law at all, but is
wholly and entirely artificial. To establish the relation, the statutory requirements must be
strictly carried out, otherwise, the adoption is an absolute nullity. The fact of adoption is
never presumed, but must be affirmatively [proven] by the person claiming its existence.
68

Premises considered, we rule that two of the claimants to the estate of Guillermo
Rustia, namely, intervenor Guillerma Rustia and the ampun-ampunanGuillermina
Rustia Rustia, are not lawful heirs of the decedent. Under Article 1002 of the new
Civil Code, if there are no descendants, ascendants, illegitimate children, or
surviving spouse, the collateral relatives shall succeed to the entire estate of the

deceased. Therefore, the lawful heirs of Guillermo Rustia are the remaining
claimants, consisting of his sisters, nieces and nephews.
69

70

Entitlement to Letters of Administration

An administrator is a person appointed by the court to administer the intestate
estate of the decedent. Rule 78, Section 6 of the Rules of Court prescribes an order
of preference in the appointment of an administrator:
Sec. 6. When and to whom letters of administration granted.If no executor is named in the
will, or the executor or executors are incompetent, refuse the trust, or fail to give a bond, or
a person dies intestate, administration shall be granted:
1. (a)To the surviving husband or wife, as the case may be, or next of kin, or both, in
the discretion of the court, or to such person as such surviving husband or wife, or
next of kin, requests to have appointed, if competent and willing to serve;
2. (b)If such surviving husband or wife, as the case may be, or next of kin, or the person
selected by them, be incompetent or unwilling, or if the husband or widow or next of
kin, neglects for thirty (30) days after the death of the person to apply for
administration or to request that the administration be granted to some other
person, it may be granted to one or more of the principal creditors, if competent and
willing to serve;
3. (c)If there is no such creditor competent and willing to serve, it may be granted to
such other person as the court may select.

In the appointment of an administrator, the principal consideration is the interest

in the estate of the one to be appointed. The order of preference does not rule out
the appointment of co-administrators, specially in cases where justice and equity
demand that opposing parties or factions be represented in the management of the
estates, a situation which obtains here.
71

72

It is in this light that we see fit to appoint joint administrators, in the persons of
Carlota Delgado Vda. de de la Rosa and a nominee of the nephews and nieces of
Guillermo Rustia. They are the next of kin of the deceased spouses Josefa Delgado
and Guillermo Rustia, respectively.

WHEREFORE, the petition (which seeks to reinstate the May 11, 1990 decision
of the RTC Manila, Branch 55) is hereby DENIED. The assailed October 24, 2002
decision of the Court of Appeals is AFFIRMED with the following modifications:
1. 1.Guillermo Rustias June 15, 1973 affidavit of self-adjudication is hereby
ANNULLED.
2. 2.the intestate estate of Guillermo Rustia shall inherit half of the intestate estate of
Josefa Delgado. The remaining half shall pertain to (a) the full and half-siblings of
Josefa Delgado who survived her and (b) the children of any of Josefa Delgados
full- or half-siblings who may have predeceased her, also surviving at the time of
her death. Josefa Delgados grandnephews and grandnieces are excluded from her
estate. In this connection, the trial court is hereby ordered to determine the
identities of the relatives of Josefa Delgado who are entitled to share in her estate.

3. 3.Guillermo Rustias estate (including its one-half share of Josefa Delgados estate)
shall be inherited by Marciana RustiaVda. de Damian and Hortencia Rustia Cruz
(whose respective shares shall be per capita) and the children of the late Roman
Rustia, Sr. (who survived Guillermo Rustia and whose respective shares shall
be per stirpes). Considering that Marciana Rustia Vda. de Damian and Hortencia
Rustia Cruz are now deceased, their respective shares shall pertain to their estates.
1. 4.Letters of administration over the still unsettled intestate estates of Guillermo
Rustia and Josefa Delgado shall issue to Carlota Delgado Vda. de de la Rosa and to
a nominee from among the heirs of Guillermo Rustia, as joint administrators, upon
their qualification and filing of the requisite bond in such amount as may be
determined by the trial court.

No pronouncement as to costs.
SO ORDERED.
Puno (Chairman), Sandoval-Gutierrez, Azcuna and Garcia, JJ., concur.
Petition denied, assailed decision affirmed with modifications.
Note.The rule in proximity is a concept that favors the relatives nearest in
degree to the decedent and excludes the more distant ones except when and to the
extent that the right of representation can apply. (Bagunu vs. Piedad, 347 SCRA
571 [2000])

o0o

No. L-22469. October 23, 1978.

TOMAS CORPUS, plaintiff-appellant, vs.ADMINISTRATOR and/or EXECUTOR of

the Estate of Teodoro R. Yangco, RAFAEL CORPUS, AMALIA CORPUS, JOSE A.
V. CORPUS, RAMON L. CORPUS, ENRIQUE J. CORPUS, S. W. STAGG,
SOLEDAD ASPRER and CIPRIANO NAVARRO, defendants-appellees.
Civil Law; Wills and Succession;Probative value of wills; Authenticity of a probated will
is incontestable.Appellant Corpus assails the probative value of the will of Luis R. Yangco,
identified as Exhibit 1 herein, which he says is a mere copy of Exhibit 20, as found in the
record on appeal in Special Proceeding No. 54863. He contends that it should not prevail
over the presumption of legitimacy found in section 69, Rule 123 of the old Rules of Court
and over the statement of Samuel W. Stagg in his biography of Teodoro R. Yangco, that Luis
Rafael Yangco made a second marital venture with Victoria Obin, implying that he had a
first marital venture with Ramona Arguelles, the mother of Teodoro. These contentions
have no merit. The authenticity of the will of Luis Rafael Yangco, as reproduced in Exhibit 1
herein and as copied from Exhibit 20 in the proceeding for the probate of Teodoro R.
Yangcos will, is incontestable. The said will is part of a public or official judicial record.
Same; Same; Same; Marriages;Presumption is that man and woman deporting
themselves as husband and wife lawfully wedded and child born unto them in lawful
wedlock is considered legitimate.On the other hand, the children of Ramona Arguelles and
Tomas Corpus are presumed to be legitimate. A marriage is presumed to have taken place
between Ramona and Tomas. Semper praesumitur pro matrimonio. It is disputably
presumed that a man and woman deporting themselves as husband and wife have entered
into a lawful contract of marriage; that a child born in lawful wedlock, there being no

divorce, absolute or from bed and board, is legitimate, and that things have happened
according to the ordinary course of nature and the ordinary habits of life.
Same; Same; No

reciprocal

succession

between

legitimate

and

illegitimate

relatives;Reasons for rule.Since Teodoro R. Yangco was an acknowledged natural child

or was illegitimate and since Juanita Corpus was the legitimate child of Jose
Corpus, himself a legitimate child, we hold that appellant Tomas Corpus has no
cause of action for the recovery of the supposed hereditary share of his mother,
Juanita Corpus, as a legal heir, in Yangcos estate. Juanita Corpus was not a legal
heir of Yangco because there is no reciprocal succession between legitimate and
illegitimate relatives. The trial court did not err in dismissing the complaint of
Tomas Corpus. Article 943 of the old Civil Code provides that el hijo natural y el
legitimado no tienen derecho a suceder abmtestato a los hijoa y parientes legitimos
del padre o madre que lo haya reconocido, ni ellos al hijo natural ni al legitimado.
Article 943 prohibits all successory reciprocity mortis causa between legitimate
and illegitimate relatives (6 Sanchez Roman, Civil Code, pp. 996-997 cited in
Director of Lands vs. Aguas, 63 Phil. 279, 287. See 16 Scaevola, Codigo Civil, 4th
Ed., 455-6). x x x The rule in Article 943 is now found in article 992 of the Civil Code
which provides that an illegitimate child has no right to inherit ab intestato from
the legitimate children and relatives of his father or mother, nor shall such children
or relatives inherit in the same manner from the illegitimate child. That rule is
based on the theory that the illegitimate child is disgracefully looked upon by the
legitimate family while the legitimate family is, in turn, hated by the illegitimate
child. The law does not recognize the blood tie and seeks to avoid further grounds of
resentment (7 Manresa, Codigo Civil, 7th Ed., pp. 185-6).

Same; Same; Same; Half-brothers who are legitimate had no right to succeed to the
estate of an illegitimate child under the rules of intestacy; Rule that a legitimate child cannot
succeed to the estate of an illegitimate child applicable in other cases.Under articles 944
and 945 of the Spanish Civil Code, if an acknowledged natural or legitimated child should
die without issue, either legitimate or acknowledged, the father or mother who
acknowledged such child shall succeed to its entire estate; and if both acknowledged it and
are alive, they shall inherit from it share and share alike. In default of natural ascendants,
natural and legitimated children shall be succeeded by their natural brothers and sisters in
accordance with the rules established for legitimate brothers and sisters. Hence, Teodoro
R. Yangcos half brothers on the Corpus side, who were legitimate, had no right to succeed
to his estate under the rules of in-testacy. Following the rule in article 992, formerly article
943, it was held that the legitimate relatives of the mother cannot succeed her illegitimate

child. x x x By reason of that same rule, the natural child cannot represent his natural
father in the succession to the estate of the legitimate grandparent (Llorente vs.
Rodriguez, 10 Phil. 585; Centeno vs. Centeno, 52 Phil. 322;Allarde vs. Abaya, 57 Phil. 909).
The natural daughter cannot succeed to the estate of her deceased uncle, a legitimate
brother of her natural mother (Anuran vs. Aquino and Ortiz,38 Phil. 29).

AQUINO, J.:
Teodoro R. Yangco died in Manila on April 20, 1939 at the age of seventy-seven
years. His will dated August 29, 1934 was probated in the Court of First Instance of
Manila in Special Proceeding No. 54863. The decree of probate was affirmed in this
Courts 1941 decision inCorpus vs. Yangco, 73 Phil. 527. The complete text of the
will is quoted in that decision.
Yangco had no forced heirs. At the time of his death, his nearest relatives were
(1) his half brother, Luis R. Yangco, (2) his half sister, Paz Yangco, the wife of Miguel
Ossorio, (3) Amalia Corpus, Jose A. V. Corpus, and Ramon L. Corpus, the children
of his half brother, Pablo Corpus, and (4) Juana (Juanita) Corpus, the daughter of
his half brother Jose Corpus. Juanita died in October, 1944 at Palauig, Zambales.
Teodoro R. Yangco was the son of Luis Rafael Yangco and Ramona Arguelles, the
widow of Tomas Corpus. Before her union with Luis Rafael Yangco, Ramona had
begotten five children with Tomas Corpus, two of whom were the aforenamed Pablo
Corpus and Jose Corpus.
Pursuant to the order of the probate court, a project of partition dated November
26, 1945 was submitted by the administrator and the legatees named in the will.
That project of partition was opposed by the estate of Luis R. Yangco whose counsel
contended that an intestacy should be declared because the will does not contain an
institution of heir. It was also opposed by Atty. Roman A. Cruz, who represented
Juanita Corpus, Pedro Martinez and Juliana de Castro. Juanita Corpus was
already dead when Atty. Cruz appeared as her counsel.
Atty. Cruz alleged in his opposition that the proposed partition was not in
conformity with the will because the testator intended that the estate should be
conserved and not physically partitioned. Atty. Cruz prayed que declare que el
finado no dispuso en su testamento de sus bienes y negocios y que ha lugar a
sucession intestado con respecio a los mismos, y que seale un dia en esta causa

para la recepcion de pruebas previa a la declaracion de quienes son los herederos

legales o abintestato del difunto.
The probate court in its order of December 26, 1946 approved the project of
partition. It held that in certain clauses of the will the testator intended to conserve
his properties not in the sense of disposing of them after his death but for the
purpose of preventing that tales bienes fuesen malgastados o desfilpar rados por los
legatarios and that if the testator intended a perpetual prohibition against
alienation, that condition would be regarded como no puesta o no existente. It
concluded that no hay motivos legales o morales para que la sucession de Don
Teodoro R. Yangco sea declarada intestada. (SeeBarretto vs. Tuason, 50 Phil. 888,
which cites article 785 of the Spanish Civil Code as prohibiting perpetual entails,
andRodriguez vs. Court of Appeals, L-28734, March 28, 1969, 27 SCRA 546.)
From that order, Pedro Martinez, Juliana de Castro, Juanita Corpus (deceased)
and the estate of Luis R. Yangco appealed to this Court (L-1476). Those appeals
were dismissed in this Courts resolutions of October 10 and 31, 1947 after the
legatees and the appellants entered into compromise agreements. In the
compromise dated October 7, 1947 the legatees agreed to pay P35,000 to Pedro
Martinez, the heirs of Pio V. Corpus, the heirs of Isabel Corpus and the heir of
Juanita Corpus. Herein appellant Tomas Corpus signed that compromise
settlement as the sole heir of Juanita Corpus. The estate of Luis R. Yangco entered
into a similar compromise agreement. As the resolutions dismissing the appeals
became final and executory on October 14 and November 4, 1947, entries of
judgment were made on those dates.
Pursuant to the compromise agreement, Tomas Corpus signed a receipt dated
October 24, 1947 wherein ha acknowledge that he received from the Yangco estate
the sum of two thousand pesos (P2,000) as settlement in full of my share of the
compromise agreement as per understanding with Judge Roman Cruz, our attorney
in this case (Exh. D or 17).
On September 20, 1949, the legatees executed an agreement for the settlement
and physical partition of the Yangco estate. The probate court approved that
agreement and noted that the 1945 project of partition was pro tanto modified. That
did not set at rest the controvery over the Yangco estate.

On October 5, 1951, Tomas Corpus, as the sole heir of Juanita Corpus, filed an
action in the Court of First Instance of Manila to recover her supposed share in
Yangco intestate estate. He alleged in his complaint that the dispositions in
Yangcos will imposing perpetual prohibitions upon alienation rendered it void
under article 785 of the old Civil Code and that the 1949 partition is invalid and,
therefore, the decedents estate should be distributed according to the rules on
intestacy.
The trial court in its decision of July 2, 1956 dismissed the action on the grounds
of res judicata and laches. It held that the intrinsic validity of Yangcos will was
passed upon in its order dated December 26, 1946 in Special Proceeding No. 54863
approving the project of partition for the testators estate.
Tomas Corpus appealed to the Court of Appeals which in its resolution dated
January 23, 1964 in CA-G. R. No. 18720-R certified the appeal to this Court because
it involves real property valued at more than fifty thousand pesos (Sec. 17[5],
Judiciary Law before it was amended by Republic Act No. 2613).
Appellant Corpus contends in this appeal that the trial court erred in holding (1)
that Teodoro R. Yangco was a natural child, (2) that his will had been duly legalized,
and (3) that plaintiffs action is barred by res judicata and laches. In the disposition
of this appeal, it is not necessary to resolve whether Yangcos will had been duly
legalized and whether the action of Tomas Corpus is barred by res judicata and
laches. The appeal may be resolved by determining whether Juanita Corpus, the
mother of appellant Tomas Corpus, was a legal heir of Yangco. Has Tomas Corpus a
cause of action to recover his mothers supposed intestate share in Yangcos estate?
To answer that question, it is necessary to ascertain Yangcos filiation. The trial
court found that Yangco a su muerte tambien le sbrevivieron Luis y Paz
appellidados Yangco, hermanos naturales reconocidos por su padre natural Luis R.
Yangco. The basis of the trial courts conclusion that Teodoro R. Yangco was an
acknowledged natural child and not a legitimate child was the statement in the will
of his father. Luis Rafael Yangco, dated June 14, 1907, that Teodoro and his three
other children were-his acknowledged natural children. His exact words are:
Primera. Declaro que tengo cuatro hijos naturales reconocidos, llamados Teodoro, Paz,
Luisa y Luis, los cuales son mis unicos herederos forzosos. (Exh. 1 in Testate Estate of
Teodoro Yangco).

That will was attested by Rafael del Pan, Francisco Ortigas, Manuel Camus and
Florencio Gonzales Diez.
Appellant Corpus assails the probative value of the will of Luis R. Yangco,
identified as Exhibit 1 herein, which he says is a mere copy of Emhibit 20, as found
in the record on appeal in Special Proceeding No. 54863. He contends that it should
not prevail over the presumption of legitimacy found in section 69, Rule 123 of the
old Rules of Court and over the statement of Samuel W. Stagg in his biography of
Teodoro R. Yangco, that Luis Rafael Yangco made a second marital venture with
Victoria Obin, implying that he had a first marital venture with Ramona Arguelles,
the mother of Teodoro.
These contentions have no merit. The authenticity of the will of Luis Rafael
Yangco, as reproduced in Exhibit 1 herein and as copied from Exhibit 20 in the
proceeding for the probate of Teodoro R. Yangcos will, in incontestable. The said
will is part of a public or official judicial record.
On the other hand, the children of Ramona Arguelles and Tomas Corpus are
presumed to be legitimate. A marriage is presumed to have taken place between
Ramona and Tomas. Semper praesumitur pro matrimonio. It is disputably
presumed That a man and a woman deporting themselves as husband and wife
have entered into a lawful contract of marriage; that a child born in lawful
wedlock, there being no divorce, absolute or from bed and board, is legitimate, and
that things have happened according to the ordinary course of nature and the
ordinary habits of life (Sec. 5[z], [bb] and [cc], Rule 131, Rules of Court).
Since Teodoro R. Yangco was an acknowledged natural child or was illegitimate
and since Juanita Corpus was the legitimate child of Jose Corpus, himself a
legitimate child, we hold that appellant Tomas Corpus has no cause of action for the
recovery of the supposed hereditary share of his mother, Juanita Corpus, as a legal
heir, in Yangcos estate. Juanita Corpus was not a legal heir of Yangco because there
is no reciprocal succession between legitimate and illegitimate relatives. The trial
court did not err in dismissing the complaint of Tomas Corpus.
Article 943 of the old Civil code provides that el hijo natural y el legitimado no
tienen derecho a suceder abintestato a los hijos y parientes legitimos del padre o
madre que lo haya reconocido, ni ellos al hijo natural ni al legitimado. Article 943

prohibits all successory reciprocity mortis causa between legitimate and

illegitimate relatives (6 Sanchez Roman, Civil Code, pp. 996-997 cited in Director
of Lands vs. Aguas, 63 Phil. 279, 287. See 16 Scaevola, Codigo Civil, 4th Ed., 455-6).
xxx
Appellant Corpus concedes that if Teodoro R. Yangco was a natural child, he
(Tomas Corpus) would have no legal personality to intervene in the distribution of
Yangcos estate (p. 8, appellants brief).
The rule in article 943 is now found in article 992 of the Civil Code which
provides that an illegitimate child has no right to inherit ab intestato from the
legitimate children and relatives of his father or mother; nor shall such children or
relatives inherit in the same manner from the illegitimate child.
That rule is based on the theory that the illegitimate child is disgracefully looked
upon by the legitimate family while the legitimate family is, in turn, hated by the
illegitimate child.
The law does not recognize the blood tie and seeks to avod further grounds of
resentment (7 Manresa, Codigo Civil, 7th Ed., pp. 185-6).
Under articles 944 and 945 of the Spanish Civil Code, if an acknowledged
natural or legitimated child should die without issue, either legitimate or
acknowledged, the father or mother who acknowledged such child shall succeed to
its entire estate; and if both acknowledged it and are alive, they shall inherit from it
share and share alike. In default of natural ascendants, natural and legitimated
children shall be succeeded by their natural brothers and sisters in accordance with
the rules established for legitimate brothers and sisters. Hence, Teodoro R.
Yangcos half brothers on the Corpus side, who were legitimate, had no right to
succeed to his estate under the rules of intestacy.
Following the rule in article 992, formerly article 943, it was held that the legitimate relatives of
the mother cannot succeed her illegitimate child (Cacho vs. Udan, L-19996, April 30, 1965, 13 SCRA
693. See De Guzman vs. Sevilla, 47 Phil. 991).
Where the testatrix, Rosario Fabie, was the legitimate daughter of Jose Fabie, the two
acknowledged natural children of her uncle, Ramon Fabie, her fathers brother, were held not to be
her legal heirs (Grey vs. Fabie, 88 Phil. 128).

By reason of that same rule, the natural child cannot represent his natural father in the
succession to the estate of the legitimate grandparent (Llorente vs. Rodriguez, 10 Phil. 585;Centeno
vs. Centeno, 52 Phil. 322;Allarde vs. Abaya, 57 Phil. 909). The natural daughter cannot succeed to
the estate of her deceased uncle, a legitimate brother of her natural mother (Anuran vs. Aquino and
Ortiz, 38 Phil. 29).
WHEREFORE the lower courts judgment is affirmed. No costs.
SO ORDERED.
Barredo, (Actg. Chairman),Antonio, Concepcion Jr. and Santos, JJ.,concur.
Judgment affirmed.
Notes.Section 1, Rule 73 of the Rules of Court prescribing the court where decedents estate
shall be settled, which is at the place of his residence or where the estate is located, relates to venue
and not to jurisdiction. (Fule vs. Malvar, 74 SCRA 189.)
The court with whom the petition is first filed must also first take cognizance of the settlement of
the estate in order to exercise jurisdiction over it to the exclusion of all other courts. ( Cuenco vs.
Court of Appeals, 53 SCRA 360).
A probate decree finally and definitively settles all questions concerning the capacity of the
testator and the proper execution and witnessing of his last will and testament, irrespec tive of
whether its provisions are valid and enforceable or otherwise. As such, the probate order is final and
appealable, and it is so recognized by the express provision of Section 1, Rule 109 of the Rules of
Court. (Fernandez vs. Dimagiba,21 SCRA 428).
An alleged disposal by the testator prior to his death of the properties in his will is no ground for
the dismissal of the petition for probate (Sumilang vs. Ramagosa, 21 SCRA 1369).
One who has or can have no interest in succeeding a decedent cannot oppose the probate of the
will in question. (Butiong vs. Surigao Consolidated Mining Co., 24 SCRA 550).
Collateral relatives of one who died intestate inherit only in the absence of descendants,
ascendants, and illegitimate children. Albeit the brothers and sisters can concur with the widow or
widower under Article 1101 of the Civil Code, they do not concur, but are excluded by the surviving
children, legitimate or illegitimate (Article 1003). (Cacho vs. Ulan, 13 SCRA 693.)

The legitimate relatives of the mother cannot succeed her illegitimate child. This is clear from
Article 992 of the Civil Code. (Cacho vs. Ulan, supra.)
Reasons for Article 992, Civil Code.Manresa, cited by the Supreme Court in the case of Grey vs.
Fabie, 48 Phil. 128, explains the above article as follows: Between the natural child and the
legitimate relatives of the father or mother who acknowledged it, the code denies any right of
succession. Theycannot be called relatives and they have no right to inherit. Of course, there is blood
ties, but the law does not recognize it. In this Article 943 (Art. 992 under new Civil Code) based upon
the reality of the facts and upon presumptive will of the interested parties; the natural child is
disgracefully looked down upon by the legitimate family; the legitimate family is, in turn, hated by
the natural child; the latter considers the privileged condition of the former and the resources of
which it is thereby deprived; the former, in turn, sees in the natural child nothing but the product of
sin, a palpable evidence of a blemish upon the family. Every relation is ordinarily broken in life; the
law does no more than recognize this truth, by avoiding further grounds of resentment. (Caguioa,
Comments and Cases on Civil Law, 1970 Edition, pp. 386-387.)

No. L-51263. February 28, 1983.

CRESENCIANO LEONARDO, petitioner, vs. COURT OF APPEALS, MARIA

CAILLES, JAMES BRACEWELL and RURAL BANK OF PARAAQUE, INC.,
respondents.
Civil Law; Persons and Family Relations;Findings of fact of Court of Appeals generally
final and conclusive upon the Supreme Court;Exceptions, not present in case at bar.
Petitioner takes issue with the appellate court on the above findings of fact, forgetting that
since, the present petition is one for review on certiorari, only questions of law may be
raised. It is a well-established rule laid down by this Court in numerous cases that findings
of facts by the Court of Appeals are, generally, final and conclusive upon this Court. The
exceptions are: (1) when the conclusion is a finding grounded entirely on speculation; (2)
when the inference made is manifestly mistaken, absurd or impossible; (3) when there is a
grave abuse of discretion; (4) when the judgment is based on a misapprehension of facts;
and (5) when the Court of Appeals, in making its findings, went beyond the issues of the
case and the same are contrary to the submission of both appellant and appellee. None of
the above exceptions, however, exists in the case at bar, hence, there is no reason to disturb
the findings of facts of the Court of Appeals.
Same; Same; Same; Factual finding of the Court of Appeals will not be disturbed absent
a clear showing that the finding is not supported by substantial evidence.That is likewise a
factual finding which may not be disturbed in this petition for review in the absence of a

clear showing that said finding is not supported by substantial evidence, or that there was a
grave abuse of discretion on the part of the court making the finding of fact.
Same; Same; Succession; Right of representation; An alleged grandchild born outside
wedlock cannot, by right of representation, claim a share of an estate left by an alleged
deceased great grandparent;Reason; Case at bar.Referring to the third assignment of
error, even if it is true that petitioner is the child of Sotero Leonardo, still he cannot, by
right of representation, claim a share of the estate left by the deceased Francisca Reyes
considering that, as found again by the Court of Appeals, he was born outside wedlock as
shown by the fact that when he was born on September 13, 1938, his alleged putative father
and mother were not yet married, and what is more, his alleged fathers first marriage was
still subsisting. At most, petitioner would be an illegitimate child who has no right to
inheritan intestato from the legitimate children and relatives of his father, like the deceased
Francisca Reyes. (Article 992, Civil Code of the Philippines.)

PETITION for certiorari to review the decision of the Court of Appeals.

The facts are stated in the opinion of the Court.
Porfirio C. David for petitioner.
Marquez & Marquez for private respondent.
DE CASTRO, J.:
Petition for review on certiorari of the decision of the Court of Appeals in CA-G.R.
No. 43476-R, promulgated on February 21, 1979, reversing the judgment of the
Court of First Instance of Rizal in favor of petitioner:
1. (a)Declaring plaintiff Cresenciano Leonardo as the great grandson and heir of
deceased FRANCISCA REYES, entitled to one-half share in the estate of said
deceased, jointly with defendant Maria Cailles;
2. (b)Declaring the properties, subject of this complaint, to be the properties of the
deceased FRANCISCA REYES and not of defendants Maria Cailles and James
Bracewell;
3. (c)Declaring null and void any sale of these properties by defendant Maria Cailles in
so far as the share of Cresenciano Leonardo are affected;

4. (d)Ordering the partition within 30 days from the finality of this decision, of the
properties subject of this litigation, between defendant Maria Cailles and plaintiff
Cresenciano Leonardo, share and share alike;
5. (e)Ordering defendants Maria Cailles and James Bracewell, within 30 days from the
finality of this decision, to render an accounting of the fruits of the properties, and
30 days thereafter to pay to plaintiff Cresenciano Leonardo his one-half share
thereof with interest of 6% per annum;

6. (f)Ordering defendants Maria Cailles and James Bracewell to pay jointly and
severally plaintiff Cresenciano Leonardo the amount of P2,000.00 as attorneys fees;
1. (g)Ordering defendants to pay the costs; and
2. (h)Dismissing defendants counterclaim.

From the record, it appears that Francisca Reyes who died intestate on July 12,
1942 was survived by two (2) daughters, Maria and Silvestra Cailles, and a
grandson, Sotero Leonardo, the son of her daughter, Pascuala Cailles who
predeceased her. Sotero Leonardo died in 1944, while Silvestra Cailles died in 1949
without any issue.
On October 29, 1964, petitioner Cresenciano Leonardo, claiming to be the son of
the late Sotero Leonardo, filed a complaint for ownership of properties, sum of
money and accounting in the Court of First Instance of Rizal seeking judgment (1)
to be declared one of the lawful heirs of the deceased Francisca Reyes, entitled to
one-half share in the estate of said deceased jointly with defendant, private
respondent herein, Maria Cailles, (2) to have the properties left by said Francisca
Reyes, described in the complaint, partitioned between him and defendant Maria
Cailles, and (3) to have an accounting of all the income derived from said properties
from the time defendants took possession thereof until said accounting shall have
been made, delivering to him his share therein with legal interest.
Answering the complaint, private respondent Maria Cailles asserted exclusive
ownership over the subject properties and alleged that petitioner is an illegitimate
child who cannot succeed by right of representation. For his part, the other
defendant, private respondent James Bracewell, claimed that said properties are
now his by virtue of a valid and legal deed of sale which Maria Cailles had

subsequently executed in his favor. These properties were allegedly mortgaged to

respondent Rural Bank of Paraaque, Inc. sometime in September 1963.
After hearing on the merits, the trial court rendered judgment in favor of the
petitioner, the dispositive portion of which was earlier quoted, finding the evidence
of the private respondent insufficient to prove ownership of the properties in suit.
From said judgment, private respondents appealed to the Court of Appeals which,
as already stated, reversed the decision of the trial court, thereby dismissing
petitioners complaint. Reconsideration having been denied by the appellate court,
this petition for review was filed on the following assignment of errors:
I
RESPONDENT COURT ERRED IN HOLDING THAT THE PROPERTIES IN QUESTION
ARE THE EXCLUSIVE PROPERTIES OF PRIVATE RESPONDENTS.
II
RESPONDENT COURT ERRED IN HOLDING THAT PETITIONER HAS NOT
ESTABLISHED HIS FILIATION.
III
RESPONDENT COURT ERRED IN HOLDING THAT PETITIONER, AS THE GREAT
GRANDSON OF FRANCISCA REYES, HAS NO LEGAL RIGHT TO INHERIT BY
REPRESENTATION.

To begin with, the Court of Appeals found the subject properties to be the exclusive
properties of the private respondents.
There being two properties in this case both will be discussed separately, as each has its
own distinct factual setting. The first was bought in 1908 by Maria Cailles under a deed of
sale (Exh. 60), which describes it as follows:
. . . radicada en la calle Desposorio de este dicho Municipio dentro de los limites y linderos
siquientes: Por la derecha a la entrada el solar de Teodorico Reyes por la izquierda el solar de Maria
Calesa (Cailles) arriba citada por la espalda la via ferrea del Railroad Co., y la frente la dicha calle
Desposorio

After declaring it in her name, Maria Cailles paid the realty taxes starting from 1918
up to 1948. Thereafter as she and her son Narciso Bracewell, left for Nueva Ecija, Francisca
Reyes managed the property and paid the realty tax of the land. However, for unexplained
reasons, she paid and declared the same in her own name. Because of this, plaintiff decided
to run after this property, erroneously thinking that as the great grandson of Francisca
Reyes, he had some proprietary right over the same.
The second parcel on the other hand, was purchased by Maria Cailles in 1917 under a
deed of sale (Exh. 3) which describes the property as follows:
. . . una parcela de terreno destinado al beneficio de la sal, que linda por Norte con la linea Ferrea y
Salinar de Narciso Mayuga, por Este con los de Narciso Mayuga y Domingo Lozada, por Sur con los
de Domingo Lozada y Fruto Silverio y por Oeste con el de Fruto Silverio y Linea Ferrea, de una
extension superficial de 1229.00 metros cuadrados.

After declaring it in her name, Maria Cailles likewise paid the realty tax in 1917 and
continued paying the same up to 1948. Thereafter when she and her son, Narciso Bracewell,
established their residence in Nueva Ecija, Francisca Reyes administered the property and
like in the first case, declared in 1949 the property in her own name. Thinking that the
property is the property of Francisca Reyes, plaintiff filed the instant complaint, claiming a
portion thereof as the same allegedly represents the share of his father.
As earlier stated, the court a quo decided the case in favor of the plaintiff principally
because defendants evidence do not sufficiently show that the 2 properties which they
bought in 1908 and 1917, are the same as the properties sought by the plaintiff.
Carefully going over the evidence, We believe that the trial judge misinterpreted the
evidence as to the identification of the lands in question.
To begin with, the deed of sale (Exh. 60) of 1908 clearly states that the land sold to
Maria Cailles is en la calle Desposorio in Las Pias, Rizal which was bounded by adjoining
lands owned by persons living at the time, including the railroad track of the Manila
Railroad Co. (la via ferrea del Railroad Co.).
With the exception of the area which was not disclosed in the deed, the description fits
the land now being sought by the plaintiff, as this property is also located in Desposorio St.
and is bounded by the M.R.R. Co.
With these natural boundaries, there is indeed an assurance that the property
described in the deed and in the tax declaration is one and the same property.

The change of owners of the adjoining lands is immaterial since several decades have
already passed between the deed and the declaration and during that period, many changes
of abode would likely have occurred.
Besides, it is a fact that defendants have only one property in Desposorio St. and they
have paid the realty taxes of this property from May 29, 1914 up to May 28, 1948. Hence,
there is no reason to doubt that this property is the same, if not identical to the property in
Desposorio St. which is now being sought after by the plaintiff.
With respect to the other parcel which Maria Cailles bought from Tranquilino Mateo in
1917, it is true that there is no similar boundaries to be relied upon. It is however
undeniable that after declaring it in her name, Maria Cailles began paying the realty taxes
thereon on July 24, 1917 until 1948. (Reference to Exhibits omitted.)
2

Petitioner takes issue with the appellate court on the above findings of fact,
forgetting that since the present petition is one for review on certiorari, only
questions of law may be raised. It is a well-established rule laid down by this Court
in numerous cases that findings of facts by the Court of Appeals are, generally, final
and conclusive upon this Court. The exceptions are: (1) when the conclusion is a
finding grounded entirely on speculation; (2) when the inference made is manifestly
mistaken, absurd or impossible; (3) when there is a grave abuse of discretion; (4)
when the judgment is based on a misapprehension of facts; and (5) when the Court
of Appeals, in making its findings, went beyond the issues of the case and the same
are contrary to the submission of both appellant and appellee. None of the above
exceptions, however, exists in the case at bar, hence, there is no reason to disturb the
findings of facts of the Court of Appeals.
3

Anent the second assignment of error, the Court of Appeals made the following
findings:
Going to the issue of filiation, plaintiff claims that he is the son of Sotero Leonardo, the son
of one of the daughters (Pascuala) of Francisca Reyes. He further alleges that since
Pascuala predeceased Francisca Reyes, and that his father, Sotero, who subsequently died
in 1944, survived Francisca Reyes, plaintiff can consequently succeed to the estate of
Francisca Reyes by right of representation.
In support of his claim, plaintiff submitted in evidence his alleged birth certificate
showing that his father is Sotero Leonardo, married to Socorro Timbol, his alleged mother.

Since his supposed right will either rise or fall on the proper evaluation of this vital
evidence, We have minutely scrutinized the same, looking for that vital link connecting him
to the family tree of the deceased Francisca Reyes. However, this piece of evidence does not
in any way lend credence to his tale.
This is because the name of the child described in the birth certificate is not that of the
plaintiff but a certain Alfredo Leonardo who was born on September 13, 1938 to Sotero
Leonardo and Socorro Timbol. Other than his bare allegation, plaintiff did not submit any
durable evidence showing that the Alfredo Leonardo mentioned in the birth certificate is
no other than he himself. Thus, even without taking time and space to go into further
details, We may safely conclude that plaintiff failed to prove his filiation which is a
fundamental requisite in this action where he is claiming to be an heir in the inheritance in
question.
4

That is likewise a factual finding which may not be disturbed in this petition for review in the
absence of a clear showing that said finding is not supported by substantial evidence, or that there
was a grave abuse of discretion on the part of the court making the finding of fact.
Referring to the third assignment of error, even if it is true that petitioner is the child of Sotero
Leonardo, still he cannot, by right of representation, claim a share of the estate left by the deceased
Francisca Reyes considering that, as found again by the Court of Appeals, he was born outside
wedlock as shown by the fact that when he was born on September 13, 1938, his alleged putative
father and mother were not yet married, and what is more, his alleged fathers first marriage was
still subsisting. At most, petitioner would be an illegitimate child who has no right to inherit ab
intestato from the legitimate children and relatives of his father, like the deceased Francisca Reyes.
(Article 992, Civil Code of the Philippines.)
WHEREFORE, the decision of the Court of Appeals sought to be reviewed in this petition is hereby
affirmed, with costs against the petitioner.
SO ORDERED.
Makasiar (Chairman),Concepcion, Jr., Guerrero and Escolin, JJ., concur.
Aquino, J., on leave.
Abad Santos, J., I concur with the observation but I would have dismissed the petition by
minute resolution for lack of merit.
Decision affirmed.

No. L-66574. June 17, 1987.

ANSELMA DIAZ, guardian of VICTOR, RODRIGO, ANSELMINA and MIGUEL,

all surnamed SANTERO, petitioners, and FELIXBERTA PACURSA, guardian of
FEDERICO SANTERO, et al., vs.INTERMEDIATE APPELLATE COURT and
FELISA PAMUTI JARDIN, respondents.
Civil Law; Succession; Illegitimate child cannot inherit ab intestato from the legitimate
children and relatives of his father or mother nor shall such children or relatives inherit in
the same manner from the illegitimate childArticle 992 of the New Civil Code provides a
barrier or iron curtain in that it prohibits absolutely a succession ab intestato between the
illegitimate child and the legitimate children and relatives of the father or mother of said
legitimate child. They may have a natural tie of blood, but this is not recognized by law for
the purposes of Art. 992. Between the legitimate family and the illegitimate family there is
presumed to be an intervening antagonism and incompatibility. The illegitimate child is
disgracefully looked down upon by the legitimate family; the family is in turn, hated by the
illegitimate child; the latter considers the privileged condition of the former, and the
resources of which it is thereby deprived; the former, in turn, sees in the illegitimate child
nothing but the product of sin, palpable evidence of a blemish broken in life; the law does no
more than recognize this truth, by avoiding further grounds of resentment. Thus,
petitioners herein cannot represent their father Pablo Santero in the succession of the letter
to the intestate estate of his legitimate mother Simona Pamuti Vda. de Santero, because of
the barrier provided for under Art. 992 of the New Civil Code.

PETITION to review the decision of the Intermediate Appellate Court.

The facts are stated in the opinion of the Court.
Ambrosio Padilla, Mempin & Reyes Law Offices for petitioners.
Pedro S. Sarino for respondent R.P. Jar din.
PARAS, J.:
Private respondent filed a Petition dated January 23, 1976 with the Court of First
Instance of Cavite in Sp. Proc. Case No. B-21, "In The Matter of the Intestate Estate
of the late Simona Pamuti Vda. de Santero," praying among other things, that the

corresponding letters of Administration be issued in her favor and that she be

appointed as special administratrix of the properties of the deceased Simona
Pamuti Vda. de Santero.
It is undisputed: 1) that Felisa Pamuti Jardin is a niece of Simona Pamuti Vda.
de Santero who together with Felisa's mother Juliana were the only legitimate
children of the spouses Felipe Pamuti and Petronila Asuncion; 2) that Juliana
married Simon Jardin and out of their union were born Felisa Pamuti and another
child who died during infancy; 3) that Simona Pamuti Vda. de Santero is the widow
of Pascual Santero and the mother of Pablo Santero; 4) that Pablo Santero was the
only legitimate son of his parents Pascual Santero and Simona Pamuti Vda. de
Santero; 5) that Pascual Santero died in 1970; Pablo Santero in 1973 and Simona
Santero in 1976; 6) that Pablo Santero, at the time of his death was survived by his
mother Simona Santero and his six minor natural children to wit: four minor
children with Anselma Diaz and two minor children with Felixberta Pacursa.
Judge Jose Raval in his Orders dated December 1,19761 and December 9,
1976 declared Felisa Pamuti Jardin as the sole legitimate heir of Simona Pamuti
Vda. de Santero.
1

Before the trial court, there were 4 interrelated cases filed to wit:
1. "a)Sp. Proc. No. B-4is the Petition for the Letters of Administration of the
Intestate Estate of Pablo Santero;
2. "b)Sp. Proc. No. B-5is the Petition for the Letters of Administration of the
Intestate Estate of Pascual Santero;
3. "c)Sp. Proc. No. B-7is the Petition for Guardianship over the properties of an
Incompetent Person, Simona Pamuti Vda. de Santero;
4. "e)Sp. Proc. No. B-21is the Petition for Settlement of the Intestate Estate of
Simona Pamuti Vda. de Santero."

Felisa Jardin upon her Motion to Intervene in Sp. Proceedings Nos. B-4 and B-5,
was allowed to intervene in the intestate estates of Pablo Santero and Pascual
Santero by Orderof the Court dated August 24, 1977.

Petitioner Anselma Diaz, as guardian of her minor children, filed her "Opposition
and Motion to Exclude Felisa PamutiJardin dated March 13, 1980, from further
taking part or intervening in the settlement of the intestate estate of Simona
Pamuti Vda. de Santero, as well as in the intestate estate of Pascual Santero and
Pablo Santero.
Felixberta Pacursa guardian for her minor children, filed thru counsel, her
Manifestation of March 14, 1980 adopting the Opposition and Motion to Exclude
Felisa Pamuti, filed by Anselma Diaz.
On May 20, 1980, Judge Ildefonso M. Bleza issued an order excluding Felisa
Jardin "from further taking part or intervening in the settlement of the intestate
estate of Simona Pamuti Vda. de Santero, as well as in the intestate estates of
Pascual Santero and Pablo Santero and declared her to be, not an heir of the
deceased Simona Pamuti Vda. de Santero."
3

After her Motion for Reconsideration was denied by the trial court in its order
dated November 1, 1980, Felisa P. Jardin filed her appeal to the Intermediate
Appellate Court in CAG.R. No. 69814-R. A decision was rendered by the
Intermediate Appellate Court on December 14, 1983 (reversing the decision of the
trial court) the dispositive portion of which reads
4

"WHEREFORE, finding the Order appealed from not consistent with the facts and law
applicable, the same is hereby set aside and another one entered sustaining the Orders of
December 1 and 9, 1976 declaring the petitioner as the sole heir of Simona Pamuti Vda. de
Santero and ordering oppositors-appellees not to interfere in the proceeding for the
declaration of heirship in the estate of Simona Pamuti Vda. de Santero."
"Costs against the oppositors-appellees."

The Motion for Reconsideration filed by oppositors-appellees (petitioners herein)

was denied by the same respondent court in its order dated February 17, 1984
hence, the present petition for Review with the following:
ASSIGNMENT OF ERRORS
1. I.The Decision erred in ignoring the right to intestate succession of
petitioners grandchildren Santero as direct descending line (Art. 978) and/or

natural/"illegitimate children" (Art. 988) and prefering a niece, who is a collateral

relative (Art. 1003);
2. II.The Decision erred in denying the right of representation of the natural
grandchildren Santero to represent their father Pablo Santero in the succession to
the intestate estate of their grandmother Simona PamutiVda. de Santero (Art.
982);
3. III.The Decision erred in mist aking the intestate estate of the
grandmotherSimona Pamuti Vda. de Santero as the estate of "legitimate child or
relative" of Pablo Santero, her son andfather of the petitioners' grandchildren
Santero;
4. IV.The Decision erred in ruling that petitioner-appellant Felisa P. Jardin who is
a niece and therefore acollateral relative of Simona Pamuti Vda. de Santero
excludes the naturalchildren of her son Pablo Santero, who are her
direct descendants and/orgrand children;
5. V.The Decision erred in applying Art. 992, when Arts. 988, 989 and 990 are the
applicable provisions of law on intestate succession; and
6. VI.The Decision erred in considering the orders of December 1 and December 9,
1976 which are provisional and interlocutory as final and executory.

The real issue in this case may be briefly stated as followswho are the legal heirs
of Simona Pamuti Vda. de Santeroher niece Felisa Pamuti Jardin or her
grandchildren (the natural children of Pablo Santero)?
The dispute at bar refers only to the intestate estate of Simona Pamuti Vda. de
Santero and the issue here is whether oppositors-appellees (petitioners herein) as
illegitimate children of Pablo Santero could inherit from Simona Pamuti Vda. de
Santero, by right of representation of their father Pablo Santero who is a legitimate
child of Simona Pamuti Vda. de Santero.
Now then what is the appropriate law on the matter? Petitioners contend in their
pleadings that Art. 990 of the New Civil Code is the applicable law on the case. They
contend that said provision of the New Civil Code modifies the rule in Article 941
(Old Civil Code) and recognizes the right of representation (Art. 970) to
descendants, whether legitimate or illegitimate and that Art. 941, Spanish Civil

Code denied illegitimate children the right to represent their deceased parents and
inherit from their deceased grandparents, but that Rule was expressly changed
and/or amended by Art. 990 New Civil Code which expressly grants the illegitimate
children the right to represent their deceased father (Pablo Santero) in the estate of
their grandmother (Simona Pamuti)"
5

Petitioners' contention holds no water. Since the heridatary conflict refers solely
to the intestate estate of Simona Pamuti Vda. de Santero, who is the legitimate
mother of Pablo Santero, the applicable law is the provision of Art. 992 of the Civil
Code which reads as follows:
ART. 992. An illegitimate child has no right to inherit ab intestato from the legitimate
children and relatives of his father or mother; nor shall such children or relatives inherit in
the same manner from the illegitimate child. (943a)

Pablo Santero is a legitimate child, he is not an illegitimate child. On the other

hand, the oppositors (petitioners herein) are the illegitimate children of Pablo
Santero.
Article 992 of the New Civil Code provides a barrier or iron curtain in that it
prohibits absolutely a succession ab intestato between the illegitimate child and the
legitimate children and relativesof the father or mother of said legitimate child.
They may have a natural tie of blood, but this is not recognized by law for the
purposes of Art. 992. Between the legitimate family and the illegitimate family
there is presumed to be an intervening antagonism and incompatibility. The
illegitimate child is disgracefully looked down upon by the legitimate family; the
family is in turn, hated by the illegitimate child; the latter considers the privileged
condition of the former, and the resources of which it is thereby deprived; the
former, in turn, sees in the illegitimate child nothing but the product of sin, palpable
evidence of a blemish broken in life; the law does no more than recognize this truth,
by avoiding further grounds of resentment.
6

Thus, petitioners herein cannot represent their father Pablo Santero in the
succession of the letter to the intestate estate of his legitimate mother Simona
Pamuti Vda. de Santero, because of the barrier provided for under Art. 992 of the
New Civil Code.

In answer to the erroneous contention of petitioners that Article 941 of the

Spanish Civil Code is changed by Article 990 of the New Civil Code, We are
reproducing herewith the Reflections of the Illustrious Hon. Justice Jose B.L. Reyes
which also finds full support from other civilists, to wit:
"In the Spanish Civil Code of 1889 the right of representation was admitted only within the
legitimate family; so much so that Article 943 of that Code prescribed that an illegitimate
child can not inherit ab intestato from the legitimate children and relatives of his father
and mother. The Civil Code of the Philippines apparently adhered to this principle since it
reproduced Article 943 of the Spanish Code in its own Art. 992, but with fine inconsistency,
in subsequent articles (990, 995 and 998) our Code allows the hereditary portion of the
illegitimate child to pass to his own descendants, whether legitimate or illegitimate. So that
while Art. 992 prevents the illegitimate issue of a legitimate child from representing him in
the intestate succession of the grandparent, the illegitimates of an illegitimate child can
now do so. This difference being indefensible and unwarranted, in the future revision of the
Civil Code we shall have to make a choice and decide either that the illegitimate issue
enjoys in all cases the right of representation, in which case Art. 992 must be suppressed; or
contrariwise maintain said article and modify Articles 995 and 998. The first solution would
be more in accord with an enlightened attitude vis-a-vis illegitimate children.(Reflections on
the Reform of Hereditary Succession, JOURNAL of the Integrated Bar of the Philippines,
First Quater, 1976, Volume 4, Number 1, pp. 4041).

It is therefore clear from Article 992 of the New Civil Code that the phrase
"legitimate children and relatives of his father or mother" includes Simona Pamuti
Vda. de Santero as the word "relative" includes all the kindred of the person spoken
of. The record shows that from the commencement of this case the only parties who
claimed to be the legitimate heirs of the late Simona Pamuti Vda. de Santero are
Felisa Pamuti Jardin and the six minor natural or illegitimate children of Pablo
Santero. Since petitioners herein are barred by the provisions of Article 992, the
respondent Intermediate Appellate Court did not commit any error in holding
Felisa Pamuti-Jardin to be the sole legitimate heir to the intestate estate of the late
Simona Pamuti Vda. de Santero.
7

Lastly, petitioners claim that the respondent Intermediate Appellate Court erred in
ruling that the Orders of the Court a quo dated December 1, 1976 and December 9, 1976
are final and executory. Such contention is without merit. The Hon. Judge Jose Raval in his
order dated December 1, 1976 held that the oppositors (petitioners herein) are not entitled
to intervene and hence not allowed to intervene in the proceedings. for the declaration of

the heirship in the intestate estate of Simona Pamuti Vda. de Santero. Subsequently, Judge
Jose Raval issued an order, dated December 9, 1976, which declared Felisa Pamuti-Jardin
to be the sole legitimate heir of Simona Pamuti. The said Orders were never made the
subjects of either a motion for reconsideration or a perfected appeal. Hence, said orders
which long became final and executory are already removed from the power of jurisdiction
of the lower court to decide anew. The only power retained by the lower court, after a
judgment has become final and executory is to order its execution. The respondent Court
did not err therefore in ruling that the Order of the Court a quo dated May 30, 1980
excluding Felisa Pamuti Jardin as intestate heir of the deceased Simona Pamuti Vda. de
Santero "is clearly a total reversal of an Order which has become final and executory, hence
null and void.''
WHEREFORE, this petition is hereby DISMISSED, and the assailed decision is hereby
AFFIRMED.
SO ORDERED.
Fernan (Chairman), Gutierrez, Jr., and Corts, JJ., concur.
Padilla, J., took no part; principal counsel of petitioners is related to me.
Bidin, J., no part, see footnotes 4.
Petition dismissed. Decision affirmed.
Notes.In the settlement proceedings of the estate of the deceased spouse, the entire
conjugal partnership property of the marriage and not just the one-half portion belonging to
the deceased is under administration. (Picardal vs. Lladas, 21 SCRA 1485.)
The practice in the distribution of the estates of deceased persons pursuant to the
provision of Section 1 of Rule 91 of the Rules of Court, is to assign the whole of the estate
left for distribution among the heirs in definite proportion, an aliquot part pertaining in
such of heirs.(Blas vs. Muoz-Palma, 4 SCRA 900.)

G.R. No. 66574. February 21, 1990.

ANSELMA DIAZ, guardian of VICTOR, RODRIGO, ANSELMINA and MIGUEL,

all surnamed SANTERO, and FELIXBERTA PACURSA, guardian of FEDERICO
SANTERO, et al., petitioners, vs. INTERMEDIATE APPELLATE COURT and
FELISA PAMUTI JARDIN, respondents.
Wills and Succession; Right of Representation; Hereditary Rights of Illegitimate
Descendants; Right of representation, not available to illegitimate descendants of legitimate
children in the inheritance of a legitimate grandparent.Articles 902, 989, and 990 clearly
speak of successional rights of illegitimate children, which rights are transmitted to their
descendants upon their death. The descendants (of these illegitimate children) who may
inherit by virtue of the right of representation may be legitimate or illegitimate. In
whatever manner, one should not overlook the fact that the persons to be represented are
themselves illegitimate. The three named provisions are very clear on this matter. The right
of representation is not available to illegitimate descendants of legitimate children in the
inheritance of a legitimate grandparent. It may be argued, as done by petitioners, that the
illegitimate descendant of a legitimate child is entitled to represent by virtue of the
provisions of Article 982, which provides that the grandchildren and other descendants
shall inherit by right of representa-tion. Such a conclusion is erroneous. It would allow
intestate succession by an illegitimate child to the legitimate parent of his father or mother,
a situation which would set at naught the provisions of Article 992. Article 982 is
inapplicable to instant case because Article 992 prohibits absolutely a succession ab
intestato between the illegitimate child and the legitimate children and relatives of the
father or mother. It may not be amiss to state that Article 982 is the general rule and
Article 992 the exception.
Same; Same; Same; The term relatives as used in Art. 992 embraces not only
collateral relatives but all the kindred of the person spoken of.According to Prof. Balane, to
interpret the term relatives in Article 992 in a more restrictive sense than it is used and
intended is not warranted by any rule of interpretation. Besides, he further states that
when the law intends to use the term in a more restrictive sense, it qualifies the term with
the word collateral, as in Articles 1003 and 1009 of the New Civil Code. Thus, the word
relatives is a general term and when used in a statute it embraces not only collateral
relatives but also all the kindred of the person spoken of, unless the context indicates that it
was used in a more restrictive or limited sensewhich, as already discussed earlier, is not
so in the case at bar.

GUTIERREZ, JR., J., Dissenting:

Wills and Succession; Right of Representation; Rights of Illegitimate Descendants; The
barrier is between legitimate and illegitimate families; A grandparent cannot be a separate

family from her own grandchildren.But I must stress that the barrier is between the
legitimate and illegitimate families. I see no reason why we should include a grandmother
or grandfather among those where a firm wall of separation should be maintained. She
cannot be a separate family from her own grandchildren. The ancient wall was breached
by our Code Commission and Congress in Art. 902 of the Code which provides: The rights
of illegitimate children set forth in the preceding articles are transmitted upon their death
to their descendants, whether legitimate or illegitimate. (843a) The illegitimate children of
an illegitimate child have the right to represent him in the circumstances given in
preceding articles. Before the Code was amended, that right was reserved to the
illegitimate childs legitimate offspring. I find it absurd why the petitioners could have
represented their father Pablo if their grandparents Simona and Pascual had not been
legally married.
Same; Same; Same; Relatives under Art. 992 can only refer to collateral relatives, to
members of a separate group of kins but not to ones own grandparents.The adoption of a
harsh and absurd interpretation, pending an amendment of the law, does not impress me as
correct. Precisely, the word relatives in Art. 992 calls for reinterpretation because the
Code has been amended. The meaning of relatives must follow the changes in various
provisions upon which the words effectivity is dependent. My dissent from the majority
opinion is also premised on a firm belief that law is based on considerations of justice. The
law should be interpreted to accord with what appears right and just. Unless the opposite is
proved, I will always presume that a grandmother loves her grandchildrenlegitimate or
illegiti-matemore than the second cousins of said grandchildren or the parents of said
cousins. The grandmother may be angry at the indiscretions of her son but why should the
law include the innocent grandchildren as objects of that anger. Relatives can only refer to
collateral relatives, to members of a separate group of kins but not to ones own
grandparents. I, therefore, vote to grant the motion for reconsideration.

SECOND MOTION FOR RECONSIDERATION to review the decision of the then

Intermediate Appellate Court.
The facts are stated in the opinion of the Court.
Ambrosio Padilla, Mempin & Reyes Law Offices for petitioners.
Pedro S. Sarino for respondent Felisa Pamuti Jardin.
RESOLUTION
PARAS, J.:

The decision of the Second Division of this Court in the case of Anselma Diaz, et al.
vs. Intermediate Appellate Court, et al., G.R. No. 6574, promulgated June 17, 1987
declaring Felisa Pamuti-Jardin to be the sole legitimate heir to the intestate estate
of the late Simona Pamuti Vda. de Santero, and its Resolution of February 24, 1988
denying the Motion for Reconsideration dated July 2, 1987, are being challenged in
this Second Motion for Reconsideration dated July 5, 1988. After the parties had
filed their respective pleadings, the Court, in a resolution dated October 27, 1988,
resolved to grant the request of the petitioners for oral argument before the court en
banc, and the case was set for hearing on November 17, 1988 to resolve the question:
Does the term relatives in Article 992 of the New Civil Code which reads:
An illegitimate child has no right to inheritab intestato from the legitimate children or
relatives of his father or mother; nor shall such children or relatives inherit in the same
manner from the illegitimate child.

include the legitimate parents of the father or mother of the illegitimate children?
Invited to discuss as amici curiae during the hearing were the following: Justice
Jose B.L. Reyes, former Justice Minister Ricardo C. Puno, Dr. Arturo Tolentino,
former Justice Eduardo Caguioa, and Professor Ruben Balane.
The facts of the case, as synthesized in the assailed decision, are as follows:
It is undisputed: 1) that Felisa Pamuti Jardin is a niece of Simona Pamuti Vda. de Santero
who together with Felisas mother Juliana were the only legitimate children of the spouses
Felipe Pamuti and Petronila Asuncion; 2) that Juliana married Simon Jardin and out of
their union were born Felisa Pamuti and another child who died during infancy; 3) that
Simona Pamuti Vda. de Santero is the widow of Pascual Santero and the mother of Pablo
Santero; 4) that Pablo Santero was the only legitimate son of his parents Pascual Santero
and Simona Pamuti Vda. de Santero; 5) that Pascual Santero died in 1970; Pablo Santero in
1973 and Simona Santero in 1976; 6) that Pablo Santero, at the time of his death was
survived by his mother Simona Santero and his six minor natural children to wit: four
minor children with Anselma Diaz and two minor children with Felixberta Pacursa.
(pp. 1-2, Decision; pp. 190-191, Rollo)

Briefly stated, the real issue in the instant case is thiswho are the legal heirs of
Simona Pamuti Vda. de Santeroher niece Felisa Pamuti-Jardin or her
grandchildren (the natural children of Pablo Santero)?

The present controversy is confined solely to the intestate estate of Simona

Pamuti Vda. de Santero. In connection therewith, We are tasked with determining
anew whether petitioners as illegitimate children of Pablo Santero could inherit
from Simona Pamuti Vda. de Santero, by right of representation of their father
Pablo Santero who is a legitimate child of Simona Pamuti Vda. de Santero.
Petitioners claim that the amendment of Articles 941 and 943 of the old Civil
Code (Civil Code of Spain) by Articles 990 and 992 of the new Civil Code (Civil Code
of the Philippines) constitute a substantial and not merely a formal change, which
grants illegitimate children certain successional rights. We do not dispute the fact
that the New Civil Code has given illegitimate children successional rights, which
rights were never before enjoyed by them under the Old Civil Code. They were
during that time merely entitled to support. In fact, they are now considered as
compulsory primary heirs under Article 887 of the new Civil Code (No. 5 in the
order of intestate succession). Again, We do not deny that fact. These are only some
of the many rights granted by the new Code to illegitimate children. But that is all.
A careful evaluation of the New Civil Code provisions, especially Articles 902, 982,
989, and 990, claimed by petitioners to have conferred illegitimate children the right
to represent their parents in the inheritance of their legitimate grandparents, would
in point of fact reveal that such right to this time does not exist.
Let Us take a closer look at the above-cited provisions.
Art. 902. The rights of illegitimate children set forth in the preceding articles are
transmitted upon their death to their descendants, whether legitimate orillegitimate.
Art. 982. The grandchildren and other descendants shall inherit by right of
representation, and if any one of them should have died, leaving several heirs, the portion
pertaining to him shall be divided among the latter in equal portions. (933)
Art. 989. If, together with illegitimatechildren, there should survive descendants of
another illegitimate child who is dead, the former shall succeed in their own right and the
latter by right of representation. (940a)
Art. 990. The hereditary rights granted by the two preceding articles to illegitimate
children shall be transmitted upon their death to their descendants, who shall inherit by
right of representation from their deceased grandparent. (941a) Italics for emphasis).

Articles 902, 989, and 990 clearly speak of successional rights

of illegitimatechildren, which rights are transmitted to their descendants upon their
death. The descendants (of these illegitimate children) who may inherit by virtue of
the right of representation may be legitimate or illegitimate. In whatever manner,
one should not overlook the fact that the persons to be represented are
themselves illegitimate. The three named provisions are very clear on this matter.
The right of representation is not available to illegitimate descendants
oflegitimate children in the inheritance of a legitimate grandparent. It may be
argued, as done by petitioners, that the illegitimate descendant of a legitimate child
is entitled to represent by virtue of the provisions of Article 982, which provides that
the grandchildren and other descendants shall inherit by right of representa-tion.
Such a conclusion is erroneous. It would allow intestate succession by an
illegitimate child to the legitimate parent of his father or mother, a situation which
would set at naught the provisions of Article 992. Article 982 is inapplicable to
instant case because Article 992 prohibits absolutely a succession
ab intestato between the illegitimate child and the legitimate children and relatives
of the father or mother. It may not be amiss to state that Article 982 is the general
rule and Article 992 the exception.
The rules laid down in Article 982 that grandchildren and other descendants
shall inherit by right of representation and in Article 902 that the rights of
illegitimate children x x x are transmitted upon their death to their descendants,
whether legitimate or illegitimate are subject to the limitationprescribed by Article
992 to the end that an illegitimate child has no right to inherit ab intestato from the
legitimate children and relatives of his father or mother. (Amicus Curiaes Opinion
by former Justice Minister Ricardo C. Puno, p. 12)
Article 992 of the New Civil Code provides a barrier or iron curtain in that it
prohibits absolutely a succession ab intestato between the illegitimate child and the
legitimate children and relatives of the father or mother of said illegitimate child.
They may have a natural tie of blood, but this is not recognized by law for the
purpose of Article 992. Between the legitimate family and the illegitimate family
there is presumed to be an intervening antagonism and incompatibility. The
illegitimate child is disgracefully looked down upon by the legitimate family; and the
family is in turn, hated by the illegitimate child; the latter considers the privileged
condition of the former, and the resources of which it is thereby deprived; the
former, in turn, sees in the illegitimate child nothing but the product of sin, palpable

evidence of a blemish broken in life; the law does no more than recognize this truth,
by avoidng further ground of resentment. (7 Manresa 110 cited in Grey v. Fabie 40
OG (First S) No. 3, p. 196).
According to petitioners, the commentaries of Manresa as above-quoted are based
on Articles 939 to 944 of the old Civil Code and are therefore inapplicable to the
New Civil Code and to the case at bar. Petitioners further argue that the consistent
doctrine adopted by this Court in the cases of Llorente vs. Rodriguez, et al., 10 Phil.,
585; Centeno vs. Centeno, 52 Phil. 322, and Oyao vs. Oyao, 94 Phil. 204, cited by
former Justice Minister Justice Puno, Justice Caguioa, and Prof. Balane, which
identically held that an illegitimate child has no right to succeed ab intestato the
legitimate father or mother of his natural parent (also a legitimate child himself), is
already abrogated by the amendments made by the New Civil Code and thus cannot
be made to apply to the instant case.
Once more, We decline to agree with petitioner. We are fully aware of certain
substantial changes in our law of succession, but there is no change whatsoever with
respect to the provision of Article 992 of the Civil Code. Otherwise, by the said
substantial change, Article 992, which was a reproduction of Article 943 of the Civil
Code of Spain, should have been suppressed or at least modified to clarify the
matters which are now the subject of the present controversy. While the New Civil
Code may have granted successional rights to illegitimate children, those articles,
however, in conjunction with Article 992, prohibit the right of representation from
being exercised where the person to be represented is a legitimate child. Needless to
say, the determining factor is the legitimacy or illegitimacy of the person to be
represented. If the person to be represented is an illegitimate child, then his
descendants, whether legitimate or illegitimate, may represent him; however, if the
person to be represented is legitimate, his illegitimate descendants cannot
represent him because the law provides that only his legitimate descendants may
exercise the right of representation by reason of the barrier imposed in Article 992.
In this wise, the commentaries of Manresa on the matter in issue, even though
based on the old Civil Code, are still very much applicable to the New Civil Code
because the amendment, although substantial, did not consist of giving illegitimate
children the right to represent their natural parents (legitimate) in the intestate
succession of their grandparents (legitimate). It is with the same line of reasoning
that the three aforecited cases may be said to be still applicable to the instant case.

Equally important are the reflections of the Illustrious Hon. Justice Jose B.L.
Reyes which also find support from other civilists. We quote:
In the Spanish Civil Code of 1889 the right of representation was admitted only within the
legitimate family; so much so that Article 943 of that Code prescribed that an illegitimate
child can not inherit ab intestato from the legitimate children and relatives of his father and
mother. The Civil Code of the Philippines apparently adhered to this principle since it
reproduced Article 943 of the Spanish Code in its own Art. 992, but with fine inconsistency,
in subsequent articles (990, 995 and 998) our Code allows the hereditary portion of the
illegitimate child to pass to his own descendants, whether legitimate or illegitimate. So that
while Art. 992 prevents the illegitimate issue of a legitimate child from representing him in
the intestate succession of the grandparent, the illegitimates of an illegitimate child can
now do so. This difference being indefensible and unwarranted, in the future revision of the
Civil Code we shall have to make a choice and decide either that the illegitimate issue
enjoys in all cases the right of representation, in which case Art. 992 must be suppressed; or
con-trariwise maintain said article and modify Articles 992 and 998. The first solution
would be more in accord with an enlightened attitude vis-a-vis illegitimate children.
(Reflections on the Reform of Hereditary Succession, JOURNAL of the Integrated Bar of the
Philippines, First Quarter, 1976, Volume 4, Number 1, pp. 40-41). (p. 7, Decision; p. 196,
Rollo)

It is therefore clear from Article 992 of the New Civil Code that the phrase
legitimate children and relatives of his father or mother includes Simona Pamuti
Vda. de Santero as the word relative is broad enough to comprehend all the
kindred of the person spoken of. (Comment, p. 139 Rollo citing p. 2862 Bouviers
Law Dictionary vol. II, Third Revision, Eight Edition) The record reveals that from
the commencement of this case the only parties who claimed to be the legitimate
heirs of the late Simona Pamuti Vda. de Santero are Felisa Pamuti Jardin and the
six minor natural or illegitimate children of Pablo Santero. Since petitioners herein
are barred by the provisions of Article 992, the respondent Intermediate Appellate
Court did not commit any error in holding Felisa Pamuti Jardin to be the sole
legitimate heir to the intestate estate of the late Simona Pamuti Vda. de Santero.
It is Our shared view that the word relatives should be construed in its general
acceptation. Amicus curiae Prof. Ruben Balane has this to say:
The term relatives, although used many times in the Code, is not defined by it. In
accordance therefore with the canons of statutory interpretation, it should be understood to
have a general and inclusive scope, inasmuch as the term is a general one.Generalia verba

sunt generaliter intelligenda. That the law does not make a distinction prevents us from
making one: Ubi lex non distinguit, nec nos distinguera debemus. Escriche, in
his Diccionario de Legislacion y Jurisprudencia defines parientes as los que estan
relacionados por los vinculos de la sangre, ya sea por proceder unos de otros, como los
descendientes y ascendientes, ya sea por proceder de una misma raiz o tronco, como los
colaterales. (cited in Scaevola, op. cit., p. 457).
(p. 377, Rollo)

According to Prof. Balane, to interpret the term relatives in Article 992 in a more
restrictive sense than it is used and intended is not warranted by any rule of
interpretation. Besides, he further states that when the law intends to use the term
in a more restrictive sense, it qualifies the term with the word collateral, as in
Articles 1003 and 1009 of the New Civil Code.
Thus, the word relatives is a general term and when used in a statute it
embraces not only collateral relatives but also all the kindred of the person spoken
of, unless the context indicates that it was used in a more restrictive or limited
sensewhich, as already discussed earlier, is not so in the case at bar.
To recapitulate, We quote this:
The lines of this distinction between legitimates and illegiti-mates, which goes back very
far in legal history, have been softened but not erased by present law. Our legislation has
not gone so far as to place legitimate and illegitimate children on exactly the same footing.
Even the Family Code of 1987 (EO 209) has not abolished the gradation between legitimate
and illegitimate children (although it has done away with the subclassification of
illegitimates into natural and spurious). It would thus be correct to say that illegitimate
children have only those rights which are expressly or clearly granted to them by law (vide
Tolentino, Civil Code of the Philippines, 1973 ed., vol. III, p. 291). (Amicus Curiaes Opinion
by Prof. Ruben Balane, p. 12).

In the light of the foregoing, We conclude that until Article 992 is suppressed or at
least amended to clarify the term relatives, there is no other alternative but to
apply the law literally. Thus, We hereby reiterate the decision of June 17, 1987 and
declare Felisa Pamuti-Jardin to be the sole heir to the intestate estate of Simona
Pamuti Vda. de Santero, to the exclusion of petitioners.

WHEREFORE, the second Motion for Reconsideration is DENIED, and the

assailed decision is hereby AFFIRMED.
SO ORDERED.
Fernan (C.J.), Narvasa, Melencio-Herrera, Cruz, Feliciano, Gancayco,Corts,
Grio-Aquino, Medialdea andRegalado, JJ., concur.
Gutierrez, Jr., J., Please seedissenting opinion.
Padilla, J., No part; related to Petitioners lead counsel.
Bidin, J., No Part. I participated in the appealed decision.
Sarmiento, J., No Part, I was a lawyer of same parties in a case still pending
in the Court involving the same legal issue.
GUTIERREZ, JR., J.: Dissenting Opinion
The ponente, Mr. Justice Edgardo L. Paras, is a noted teacher of Civil Law subjects
and a well-known author of many Commentaries on the Civil Code. The amicus
curiaeformer Justice Jose B.L. Reyes, former Justice Ricardo C. Puno, former
Sena-tor Arturo Tolentino, former Justice Eduardo Caguioa, and Professor Ruben
Balanetogether with the ponente read like a veritable Whos Who in Civil Law in
the Philippines.
It is, therefore, with trepidation that I venture to cast a discordant vote on the
issue before the Court. But it is perhaps because I am not as deeply steeped in the
civil law tradition and in the usually tidy and methodical neatness characterizing
its ancient precepts that I discern a change effected by our own version of the Civil
Code. The orthodox rules which earlier inflexibly separated the legitimate from the
illegitimate families have been relaxed a little. The oppobrium cast on illegitimate
children and the disadvantages they suffer in law are no longer as overwhelming as
before. The wall is no longer as rigid as it used to be. The efforts of the Code
Commission and the Congress to make our civil law conform with the customs,
traditions, and idiosyncrasies of the Filipino people and with modern trends in
legislation and the progressive principles of law have resulted in deviations from
the strict and narrow path followed by Manresa and other early glossators. I,

therefore, do not feel bound to follow the ancient interpretations in the presence of
absurd and unjust results brought about by amendments in the new Civil Code.
We have here a case of grandchildren who cannot inherit from their direct
ascendant, their own grandmother, simply because their father (who was a
legitimate son) failed to marry their mother. There are no other direct heirs. Hence,
the properties of their grandmother goes to a collateral relativeher niece. If the
niece is no longer alive, an even more distant group of grandnieces and
grandnephews will inherit as against the grandmothers own direct flesh and blood.
As pointed out by the petitioners, the decision of the Intermediate Appellate
Court disregards the order of intestate succession in Arts. 978 to 1014 of the Civil
Code and the right of representation in Art. 970 of descendants, whether legitimate
or illegitimate as provided by Arts. 902, 993, and 995.
I agree that a clear and precise amendment is needed if collateral relatives such
as illegitimate children and legitimate uncles, aunts, or cousins or illegitimate
siblings and their legitimate half-brothers or half-sisters are to inherit from one
another. But I must stress that the barrier is between the legitimate and
illegitimate families. I see no reason why we should include a grandmother or
grandfather among those where a firm wall of separation should be maintained. She
cannot be a separate family from her own grandchildren.
The ancient wall was breached by our Code Commission and Congress in Art.
902 of the Code which provides:
The rights of illegitimate children set forth in the preceding articles are transmitted upon
their death to their descendants, whether legitimate or illegitimate. (843a)

The illegitimate children of an illegitimate child have the right to represent him in
the circumstances given in preceding articles. Before the Code was amended, that
right was reserved to the illegitimate childs legitimate offspring.
I find it absurd why the petitioners could have represented their father Pablo if
their grandparents Simona and Pascual had not been legally married. Senator
Tolentino, while supporting the majority view of this Court states:
xxx

xxx

xxx

In the present article, the Code Commission took a step forward by giving an
illegitimate child the right of representation, which he did not have under the old Code. But
in retaining without change provisions of the old Code in Article 992, it created an
absurdity and committed an injustice, because while the illegitimate descendant of an
illegitimate child can represent, the illegitimate descendant of a legitimate child cannot.
The principle that the illegitimate child should succeed by operation of law only to persons
with the same status of illegitimacy has thus been preserved. And this is unfair to the
illegitimate descendants of legitimate children. Dura lex, sed lex. (Tolentino,
Commentaries and Jurisprudence on the Civil Code of the Philip-pines, Vol. III, 1987 ed., p.
330.)

The adoption of a harsh and absurd interpretation, pending an amendment of the

law, does not impress me as correct. Precisely, the word relatives in Art. 992 calls
for reinterpretation because the Code has been amended. The meaning of relatives
must follow the changes in various provisions upon which the words effectivity is
dependent.
My dissent from the majority opinion is also premised on a firm belief that law is
based on considerations of justice. The law should be interpreted to accord with
what appears right and just. Unless the opposite is proved, I will always presume
that a grandmother loves her grandchildrenlegitimate or illegitimatemore than
the second cousins of said grandchildren or the parents of said cousins. The
grandmother may be angry at the indiscretions of her son but why should the law
include the innocent grandchildren as objects of that anger. Relatives can only
refer to collateral relatives, to members of a separate group of kins but not to ones
own grandparents.
I, therefore, vote to grant the motion for reconsideration.
Motion denied. Decision affirmed.
Notes.A person may die partly testate and partly intestate. (Rigor vs. Rigor, 89
SCRA 493.)
The principle of estoppel does not apply in probate proceedings relative to the
issue of capacity of a person to inherit. (Alsua-Betts vs. Court of Appeals,92 SCRA
332.)

Preterition annuls the institution of an heir and creates an intestate succession

but legacies and devises are to be respected if not inofficious. (Acain vs. Intermediate
Appellate Court, 155 SCRA 100.)
o0o

No. L-19281. June 30, 1965.

IN THE MATTER OF THE INTESTATE ESTATE OF PEDRO SANTILLON,
CLARO SANTILLON, petitioner-appellant, vs. PERFECTA MIRANDA, BENITO U.
MIRANDA and ROSARIO CORRALES, oppositors-appellees.
Appeals in special proceedings; Order of court determining distributive share of heirs
appealable.An order of the Court of First Instance which determines the distributive
shares of the heirs of a deceased person is appealable.
Succession; Surviving spouse concurring with a legitimate child entitled to one-half of
the intestate estate.When intestacy occurs, a surviving spouse concurring with only one
legitimate child of the deceased is entitled to one-half of the estate of the deceased spouse
under Article 996 of the Civil Code.

APPEAL from an order of the Court of First Instance of Pangasinan. Pabalan, J.

The facts are stated in the opinion of the Court.

Clodualdo P. Surio and Claro Santillon (in his own behalf) for petitionerappellant.
Patricio M. Patajo for oppositors-appellees.
BENGZON, C.J.:
This is an appeal from the order of the Court of First Instance of Pangasinan,
specifying the respective shares of the principal parties herein in the intestate
estate of Pedro Santillon.
On November 21, 1953, Santillon died without testament in Tayug, Pangasinan,
his residence, leaving one son, Claro, and his wife, Perfecta Miranda. During his
marriage, Pedro acquired several parcels of land located in that province.
About four years after his death, Claro Santillon filed a petition for letters of
administration. Opposition to said petition was entered by the widow Perfecta
Miranda and the spouses Benito U. Miranda and Rosario Corrales on the following
grounds: (a) that the properties enumerated in the petition were all conjugal, except
three parcels which Perfecta Miranda claimed to be her exclusive properties; (b)
that Perfecta Miranda by virtue of two documents had conveyed 3/4 of her undivided
share in most of the properties enumerated in the petition to said spouses Benito
and Rosario; (c) that administration of the estate was not necessary, there being a
case for partition pending; and (d) that if administration was necessary at all, the
oppositor Perfecta Miranda and not the petitioner was better qualified for the post.
It appears that subsequently, oppositor Perfecta Miranda was appointed
administratrix of the estate.
On March 22, 1961, the court appointed commissioners to draft within sixty days,
a project of partition and distribution of all the properties of the deceased Pedro
Santillon.
On April 25, 1961, Claro filed a Motion to Declare Share of Heirs and to resolve
the conflicting claims of the parties with respect to their respective rights in the
estate. Invoking Art. 892 of the New Civil Code, he insisted that after deducting 1/2
from the conjugal properties as the conjugal share of Perfecta, the remaining 1/2
must be divided as follows: 1/4 for her and 3/4 for him. Oppositor Perfecta, on the
other hand, claimed that besides her conjugal half, she was entitled under Art. 996

of the New Civil Code to another 1/2 of the remaining half. In other words, Claro
claimed 3/4 of Pedros inheritance, while Perfecta claimed 1/2.
After due notice and hearing, the court, on June 28, 1961, issued an order, the
dispositive portion of which reads:
IN VIEW OF THE FOREGOING CONSIDERATIONS it is hereby ruled and ordered that
in the intestate succession of the deceased Pedro Santillon, the surviving spouse Perfecta
Miranda shall inherit ONE-HALF (1/2) share and the remaining ONE-HALF (1/2) share for
the only son, Atty. Claro Santillon. This is after deducting the share of the widow as coowner of the conjugal properties, x x x.

From this order, petitioner Claro Santillon has appealed to this Court. Two
questions of law are involved. The first, raised in Perfectas Motion to Dismiss
Appeal, is whether the order of the lower court is appealable. And the second, raised
in appellants lone assignment of error, is: How shall the estate of a person who dies
intestate be divided when the only survivors are the spouse and one legitimate
child?
The First Issue:It is clear that the order of the lower court is final and,
therefore, appealable to this Court.
Under Rule 109, see 1, a person may appeal in special proceedings from an order
of the Court of First Instance where such order determines xxx the distributive
share of the estate to which such person is entitled.
The Second Issue:Petitioner rests his claim to 3/4 of his fathers estate on Art.
892 of the New Civil Code which provides that:
If only the legitimate child or descendant of the deceased survives, the widow or widower
shall be entitled to one-fourth of the hereditary estate. xxx.

As she gets one-fourth, therefore, I get 3/4, says Claro. Perfecta, on the other hand,
cites Art. 996 which provides:
If a widow or widower and legitimate children or descendants are left, the surviving spouse
has in the succession the same share as that of each of the children.

Replying to Perfectas claim, Claro says the article is unjust and unequitable to the
extent that it grants the widow thesame share as that of the children in intestate
succession, whereas in testate, she is given 1/4 and the only child 1/2.
Oppositor Perfecta Miranda, on the other hand, contends that Art. 996 should
control, regardless of its alleged inequity, being as it is, a provision on intestate
succession involving a surviving spouse and a legitimate child, inasmuch as in
statutory construction, the plural word children includes the singular child.
Art. 892 of the New Civil Code falls under the chapter on Testamentary
Succession; whereas Art. 996 comes under the chapter on Legal or Intestate
Succession. Such being the case, it is obvious that Claro cannot rely on Art. 892 to
support his claim to 3/4 of his fathers estate. Art. 892 merely fixes the legitime of
the surviving spouse and Art. 888 thereof, the legitime of children intestate
succession. While it may indicate the intent of the law with respect to the ideal
shares that a child and a spouse should get when they concur with each other, it
does not fix the amount of shares that such child and spouse are entitled towhen
intestacy occurs. Because if the latter happens, the pertinent provision on intestate
succession shall apply, i.e., Art. 996.
Some commentators of our New Civil Code seem to support Claros contention; at
least, his objection to fifty-fifty sharing. But others confirm the half and half idea of
the Pangasinan court.
This is, remember, intestate proceedings. In the New Civil Codes chapter on
legal or intestate succession, the only article applicable is Art. 996. Our colleague,
Mr. Justice J.B.L. Reyes, professor of Civil Law, is quoted as having expressed the
opinion that under this article, when the widow survives with only one legitimate
child, they share the estate in equal parts. Senator Tolentino in his commentaries
writes as follows:
1

One child Surviving.If there is only one legitimate child surviving with the spouse, since
they share equally, onehalf of the estate goes to the child and the other half goes to the
surviving spouse. Although the law refers to children or descendants, the rule in statutory
construction that the plural can be understood to include the singular is applicable in this
case. (Tolentino, Civil Code of the Philippines, Vol. III, p. 436.)

The theory of those holding otherwise seems to be premised on these propositions:

(a) Art. 996 speaks of children, therefore, it does not apply when there is only one
child; consequently Art. 892 (and Art. 888) should be applied, thru a process of
judicial construction and analogy; (b) Art. 996 is unjust or unfair because, whereas
in testate succession, the widow is assigned one-fourth only (Art. 892), she would get
1/2 in intestate.
A. Children.It is a maxim of statutory construction that words in plural include
the singular. So Art. 996 could or should be read (and so applied): If the widow or
widower and a legitimate child are left, the surviving spouse has the same share as
that of thechild. Indeed, if we refuse to apply the article to this case on the ground
that child is not included in children, the consequences would be tremendous,
because children will not include child in the following articles:
2

ART. 887.The following are compulsory heirs: (1) legitimate children and descendants
xxx.
ART. 888.The legitime of legitimatechildren and descendants consists of one-half of the
hereditary estate xxx.
ART. 896.Illegitimate children who may survive xxx are entitled to one-fourth of the
hereditary estate xxx. (See also Art. 901).

In fact, those who say children in Art. 996 does not include child seem to be
inconsistent when they argue from the premise that in testate succession the only
legitimate child gets one-half and the widow, one-fourth. The inconsistency is clear,
because the only legitimate child gets one-half under Art. 888, which speaks of
children, not child. So if children in Art. 888 includes child, the same
meaning should be given to Art. 996.
B. Unfairness of Art. 996.Such position, more clearly stated, is this: In testate
succession, where there is only one child of the marriage, the child gets one-half,
and the widow or widower one-fourth. But in intestate, if Art. 996 is applied now,
the child gets one-half, and the widow or widower one-half. Unfair or inequitable,
they insist.
On this point, it is not correct to assume that in testate succession the widow or
widower gets only one-fourth.She or he may get one-halfif the testator so wishes.

So, the law virtually leaves it to each of the spouses to decide (by testament,
whether his or her only child shall get more than his or her survivor).
Our conclusion (equal shares) seems a logical inference from the circumstance
that whereas Article 834 of the Spanish Civil Code, from which Art. 996 was taken,
contained two paragraphs governing two contingencies, the first, where the widow
or widower survives with legitimate children (general rule), and the second, where
the widow or widower survives with only one child (exception), Art. 996 omitted to
provide for the second situation, thereby indicating the legislators desire to
promulgate just one general rule applicable to both situations.
The resultant division may be unfair as some writers explainand this we are
not called upon to discussbut it is the clear mandate of the statute, which we are
bound to enforce.
The appealed decision is affirmed. No costs in this instance.
Concepcion, Reyes,
J.B.L.,Paredes, Dizon, Regala, Makalintal,Bengzon,
J.P., and Zaldivar, JJ., concur.
Bautista Angelo, J., took no part.
Barrera, J., is on leave.
Decision affirmed.
o0o

No. L-37365. November 29, 1977.

GAUDENCIO BICOMONG, et al., plaintiffs-appellees, vs. GERONIMO ALMANZA,

et al., defendant. FLORENTINO CARTENA, defendant-appellant.
Succession; Heirs; In the absence of descendants, ascendants, illegitimate children or a
surviving spouse, collateral relations succeed to the entire estate of the deceased; Nephews
and nieces.In the absence of descendants, ascendants, illegitimate children, or a
surviving spouse, Article 1003 of the New Civil Code provides that collateral relatives shall
succeed to the entire estate of the deceased. It appearing that the decedent died intestate
without an issue, and her husband and all her ascendants had died ahead of her, she is
succeeded by the surviving collateral relatives, namely the daughter of her sister of full
blood and the ten (10) children of her brother and two (2) sisters of half blood, in accordance
with the provision of Art. 975 of the New Civil Code. By virtue of said provision, the
aforementioned nephews and nieces are entitled to inherit in their own right. In AbellanaBacayo vs. Ferraris-Borromeo, L-19382, August 31, 1965, 14 SCRA 986 this Court held that
nephews and nieces alone do not inherit by right of representation (that is per stirpes)
unless concurring with brothers or sisters of the deceased.
Same; Same; Same; Nephews and nieces entitled to inherit in their own right; Nephew
or niece of full blood entitled to inherit share double that of the nephew or niece of half blood.
Under Art. 975, which makes no qualification as to whether the nephews or nieces are on
the maternal or paternal line and without preference as to whether their relationship to the
deceased is by whole or half blood, the sole niece of whole blood of the deceased does not
exclude the ten nephews and nieces of half blood. The only difference in their right of
succession is provided in Art. 1008, N. C. C, in relation to Article 1006 of the New Civil
Code which provisions, in effect, entitle the sole niece of full blood to a share double that of
the nephews and nieces of half blood. Such distinction between whole and half blood
relationships with the deceased has been recognized in Dionisia Padura, et al. vs. Melania
Baldovino, et al., No. L-11960, December 27, 1958, 104 Phil. 1065(unreported) and in Alviar
vs. Alviar, No. L-22402, June 30, 1969, 28 SCRA 610.

APPEAL from a decision of the Court of First Instance of Manila. J.G. Bautista,J.
The facts are stated in the opinion of the Court.

Antonio E. Lacsam & Cesar A. Azucena, Jr. for appellant.

Ricardo A. Fabros, Jr. for appellees.
GUERRERO, J.:
This is an appeal certified to this Court by the Court of Appeals in accordance with
the provisions of Sec. 17, paragraph (4) of the Judiciary Act of 1948, as amended,
since the only issue raised is the correct application of the law and jurisprudence on
the matter which is purely a legal question.
1

The following findings of fact by the Court of First Instance of Laguna and San
Pablo City in Civil Case No. SP-265, and adopted by the Court of Appeals, show
that:
Simeon Bagsic was married to Sisenanda Barcenas on June 8, 1859 (Exh. D) Of this
marriage there were born three children namely: Perpetua Bagsic (Exhibit G), Igmedia
Bagsic (Exhibit F), and Ignacio Bagsic (Exhibit H). Sisenanda Barcenas died ahead of her
husband Simeon Bagsic.
On June 3, 1885, Simeon Bagsic remarried Silvestra Glorioso (Exhibit E). Of this
second marriage were born two children, Felipa Bagsic (Exhibit J) and Maura Bagsic
(Exhibit I). Simeon Bagsic died sometime in 1901. Silvestra Glorioso also died.
Ignacio Bagsic died on April 18, 1939 (Exhibit C) leaving the plaintiff Francisca Bagsic
as his only heir. Igmedia Bagsic also died on August 19, 1944 (Exhibit B) survived by the
plaintiffs Dionisio Tolentino, Maria Tolentino and Petra Tolentino.
Perpetua Bagsic died on July 1, 1945 (Exhibit A). Surviving her are her heirs, the
plaintiffs Gaudencio Bicomong, Felicidad Bicomong, Salome Bicomong, and Gervacio
Bicomong.
Of the children of the second marriage, Maura Bagsic died also on April 14, 1952 leaving
no heir as her husband died ahead of her. Felipa Bagsic, the other daughter of the second
Geronimo Almanza and her daughter Cristeta Almanza. But five (5) months before the
present suit was filed or on July 23, 1959, Cristeta Almanza died leaving behind her
husband, the defendant herein Engracio Manese (Exhibit 1-Manese) and her father
Geronimo Almanza.
(Rollo, pp. 2-3)

The subject matter of the complaint in Civil Case No. SP-265 concerns the one-half
undivided share of Maura Bagsic in the following described five (5) parcels of land
which she inherited from her deceased mother, Silvestra Glorioso, to wit:
1. A.A parcel of land in Bo. San Ignacio, City of San Pablo, planted with 38 fruit
bearing coconut trees, with an area of 1,077, sq. m. Bounded on the N. by German
Garingan; on the E. by Juan Aliagas; on the S. by Bernandino Alina; and on the W.
by Feliciana Glorioso. Covered by Tax No. 12713 for the year 1948 in the name of
Silvestra Glorioso, now Tax No. 31232, assessed at P170.00 in the name of
defendant Geronimo Almanza;
2. B.A parcel of land, also situated in Bo. San Ignacio, City of San Pablo, planted with
fruit bearing coconut trees, with an area of 9,455 sq. m. Bounded on the N. by
Paulino Gajuco; on the E. by Felisa Gavino and German Garigan; on the S. by
Esteban Calayag; and on the W. by Laureano Ambion, Covered by Tax No. 12714
for the year 1948 in the name of defendant Geronimo Almanza;
3. C.A parcel of land situated in same Bo. San Ignacio, City of San Pablo, planted with
376 fruit bearing coconut trees and having an area of 11,739 sq. sq. m. Bounded on
the N. by Jacinto Alvero, Analceto Glorioso and Bernandino Alina; on the E. by
Bernandino Alina; on the S. by Rosendo Banaad, Jacinto Alvero and Casayan River;
and on the W. by Anacleto Glorioso. Covered by Tax No. 12715 for the year 1948 in
the name of Silvestra Glorioso, now Tax No. 31234, assessed at P2,720.00 in the
name of defendant Geronimo Almanza;

4. D.A residential lot, situated at P. Alcantara Street, Int., City of San Pablo, with an

area of 153, sq. m. Bounded on the N. by heirs of Pedro Calampiano; on the E. by

Petronilo Cartago; on the S. by Ignacio Yerro; and on the W. by Melecio Cabrera.
Covered by Tax No. 17653 for the year 1948 in the name of Silvestra Glorioso, now
Tax No. 21452, assessed at P610.00 in the name of Cristeta Almanza; and

1. E.A parcel of coconut land, situated at Bo. Buenavista, Candelaria, Quezon, planted
with 300 coconut trees fruit bearing. Area24,990 sq. m. Bounded on the N. (Ilaya)
by heirs of Pedro de Gala; on the E. by Julian Garcia; on the S. (Ibaba) by Julian
Garcia, and on the W. by Taguan River. Covered by Tax No. 21452, assessed at
P910.00.

(Record on Appeal, pp. 4-6)

Three sets of plaintiffs filed the complaint on December 1, 1959, namely: (a) the
Bicomongs, children of Perpetua Bagsic; (b) the Tolentinos, children of Igmedia
Bagsic; and (c) Francisca Bagsic, daughter of Ignacio Bagsic, in the Court of First
Instance of Laguna and San Pablo City against the defendants Geronimo Almanza
and Engracio Menese for the recovery of their lawful shares in the properties left by
Maura Bagsic.
After the death of Maura Bagsic, the above-described properties passed on to
Cristela Almanza who took charge of the administration of the same. Thereupon,
the plaintiffs approached her and requested for the partition of their aunts
properties. However, they were prevailed upon by Cristeta Almanza not to divide the
properties yet as the expenses for the last illness and burial of Maura Bagsic had
not yet been paid. Having agreed to defer the partition of the same, the plaintiffs
brought out the subject again sometime in 1959 only. This time Cristeta Almanza
acceded to the request as the debts, accordingly, had already been paid.
Unfortunately, she died without the division of the properties having been effected,
thereby leaving the possesson and administration of the same to the defendants.
After trial, the court rendered judgment, the dispositive portion of which reads:
WHEREFORE, judgment is hereby rendered in favor of the plaintiffs who are hereby
declared to be entitled to ten twenty-fourth (10/24) share on the five parcels of land in
dispute. The defendant Engracio Manese and the heirs of the deceased Geronimo Almanza,
who are represented in the instant case by the administrator Florentino Cartena, are
hereby required to pay the plaintiffs from July 23, 1959 the sum of P625.00 per annum until
the ten-twenty fourth (10/24) share on the five parcels of land are delivered to the plaintiffs,
with legal interest from the time this decision shall have become final.
With costs against the defendants.
SO ORDERED.
City of San Pablo, September 21, 1962.
(SGD) JOSE G. BAUTISTA
Judge
Record on Appeal, p. 47

From the aforesaid decision of the trial court, Florentino Cartena, the substitute
defendant for Geronimo Almanza, appealed to the Court of Appeals. The other
defendant, Engracio Manese, did not appeal and execution was issued with respect
to the parcels of land in his possession, that is, those described under Letters D and
E in the complaint. Hence, the subject matter of the case on appeal was limited to
the one-half undivided portion of only three of the five parcels of land described
under letters A, B and C in the complaint which defendant Cartena admitted to be
only in his possession.
2

On appeal, defendant-appellant Cartena contends that the provisions of Arts.

995, 1006 and 1008 of the New Civil Code, applied by the trial court in allowing
plaintiffs-appellees to succeed to the properties left by Maura Bagsic were not the
applicable provisions. He asserts that in the course of the trial of the case in the
lower court, plaintiffs requested defendants to admit that Felipa Bagsic, the sole
sister of full blood of Maura Bagsic, died on May 9, 1955. Since Maura Bagsic died
on April 14, 1952, Felipa succeeded to Mauras estate. In support thereof, he cites
Art. 1004 of the New Civil Code which provides that should the only survivors be
brothers and sisters of the full blood, they shall inherit in equal shares, and he
concludes with the rule that the relatives nearest in degree excludes the more
distant ones. (Art. 962, New Civil Code)
On the other hand, plaintiffs-appellees claim that the date of death of Felipa
Bagsic was not raised as an issue in the trial court. It was even the subject of
stipulation of the parties as clearly shown in the transcript of the stenographic
notes that Felipa Bagsic died on May 9, 1945.
3

The Court of Appeals ruled that the facts of the case have been duly established
in the trial court and that the only issue left for determination is a purely legal
question involving the correct application of the law and jurisprudence on the
matter, hence the appellate court certified this case to Us.
We hold that the provisions of Art. 975, 1006 and 1008 of the New Civil Code are
applicable to the admitted facts of the case at bar. These Articles provide:
Art. 975. When children of one or more brothers or sisters of the deceased survive, they
shall inherit from the latter by representation, if they survive with their uncles or aunts.
But if they alone survive, they shall inherit in equal portions.

Art. 1006. Should brothers and sisters of the full blood survive together with brothers
and sisters of the half blood, the former shall be entitled to a share double that of the
latter.
Art. 1008. Children of brothers and sisters of the half blood shall succeed per capita or
per stirpes, in accordance with the rules laid down for brothers and sisters of the full blood.

In the absence of descendants, ascendants, illegitimate children, or a surviving

spouse, Article 1003 of the New Civil Code provides that collateral relatives shall
succeed to the entire estate of the deceased. It appearing that Maura Bagsic died
intestate without an issue, and her husband and all her ascendants had died ahead
of her, she is succeeded by the surviving collateral relatives, namely the daughter of
her sister of full blood and the ten (10) children of her brother and two (2) sisters of
half blood, in accordance with the provision of Art. 975 of the New Civil Code.
By virtue of said provision, the aforementioned nephews and nieces are entitled
to inherit in their own right. InAbellana-Bacayo vs. Ferraris-Borromeo, L-19382,
August 31, 1965, 14 SCRA 986,this Court held that nephews and nieces alone do
not inherit by right of representation (that is per stirpes) unless concurring with
brothers or sisters of the deceased.
Under the same provision, Art. 975, which makes no qualification as to whether the
nephews or nieces are on the maternal or paternal line and without preference as to
whether their relationship to the deceased is by whole or half blood, the sole niece of whole
blood of the deceased does not exclude the ten nephews and nieces of half blood. The only
difference in their right of succession is provided in Art. 1008, N.C.C., in relation to Article
1006 of the New Civil Code (supra), which provisions, in effect, entitle the sole niece of full
blood to a share double that of the nephews and nieces of half blood. Such distinction
between whole and half blood relationships with the deceased has been recognized
in Dionisia Padura, et al. vs. Melania Baldovino, et al., No. L-11960, December 27,
1958, 104 Phil. 1065(unreported) and in Alviar vs. Alviar, No. L-22402, June 30, 1969, 28
SCRA 610).
The contention of the appellant that Maura Bagsic should be succeeded by Felipa Bagsic, her
sister of full blood, to the exclusion of the nephews and nieces of half blood citing Art. 1004, N.C.C., is
unmeritorious and erroneous for it is based on an erroneous factual assumption, that is, that Felipa
Bagsic died in 1955, which as indicated here before, is not true as she died on May 9, 1945, thus she
predeceased her sister Maura Bagsic.

We find the judgment of the trial court to be in consonance with law and jurisprudence.
ACCORDINGLY, the judgment of the trial court is hereby affirmed.
No costs.
Teehankee (Chairman), Makasiar,Muoz Palma, Martin and Fernandez,JJ., concur.
Judgment affirmed.
Notes.In an intestate succession, a grandniece of the deceased cannot participate with a niece
in the inheritance because the latter being a nearer relative, the more distant grandniece is
excluded. Such being the case, the partition is void with respect to the grandniece. (De los Santos vs.
De la Cruz, 37 SCRA 555).
Under Article 343 of the new Civil Code, an adopted child surviving with legitimate parents of
the deceased adopter, has the same successional rights as an acknowledged natural child, which is
comprehended in the term illigitimate children. Consequently, the respective charges of the
surviving spouse, ascendant and adopted child should be determined by Article 1000 of the Code
which reads: If the legitimate ascendants, surviving spouse and illegitimate children are left, the
ascendants shall be entitled to one-half of the inheritance, and the other half shall be divided
between the surviving spouse and the illegitimate children so that such widow or widower shall have
one-fourth of the estate, the illegitimate children the other fourth. (Del Rosario vs. Conanan, 76
SCRA 136).
A decedents uncles and aunts may not succeed ab intesto so long as nephews and nieces of the
decedent survive and are willing and qualified to succeed. (Abellana-Bacayo vs. Ferraris-Borromeo,14
SCRA 986).
Brothers and sisters of full blood do not exclude those of half-blood in the right to the succession,
otherwise, there would be no occasion for the concurrence of both classes and the application of
Article 1006 of the new Civil Code in relation to Articles 1004 and 1003. (Alviar vs. Alviar, 28 SCRA
610).

No. L-19382. August 31, 1965.

IN RE SUMMARY SETTLEMENT OF THE ESTATE OF MELODIAFERRARIS.

FILOMENA ABELLANA DE BACAYO, petitioner-appellant, vs. GAUDENCIA

FERRARIS DE BORROMEO, CATALINA FERRARIS DE VILLEGAS, JUANITO
FERRARIS and CONCHITA FERRARIS, oppositors-appellees.
Succession; Intestacy; Collateral relatives excluded by nephews and nieces.A
decedents uncles and aunts may not succeedab intestato so long as nephews and nieces of
the decedent survive and are willing and qualified to succeed.
Same; Same; When collaterals entitled to succession.The absence of brothers, sisters,
nephews and nieces of the decedent is a precondition to the other collaterals (uncles,
cousins, etc.) being called to the succession. (Art. 1009, Civil Code)
Same; Same; Degree of relationship of collateral relatives to the deceased.An aunt of
the deceased is as far distant as the nephews from the decedent (three degrees) since in the
collateral line to which both kinds of relatives belong, degrees are counted by first
ascending to the common ancestor and then descending to the heir (Civil Code, Art. 966).
Same; Same; When nephews and nieces inherit by right of representation.Nephews
and nieces alone do not inherit by right of representation (i.e., per stirpes) unless
concurring with brothers or sisters of the deceased.

DIRECT APPEAL from a resolution and an order of the Court of First Instance of
Cebu.
The facts are stated in the opinion of the Court.
Mateo C. Bacalso and C. Kintanarfor petitioner-appellant.
Gaudioso Sosmea and C. Tomakinfor oppositors-appellees.
REYES, J.B.L., J.:
This is a paupers appeal, directly brought to this Court on points of law, from a
resolution, dated September 20, 1961, excluding petitioner-appellant herein,
Filomena Abeliana de Bacayo, as heir in the summary settlement of the estate of
Melodia Ferraris, Special Proceeding No. 2177-R of the Court of First Instance of
Cebu, Third Branch, as well as from the order, dated October 16, 1961, denying a
motion to reconsider said resolution.
The facts of this case are not disputed by the parties.

Melodia Ferraris was a resident of Cebu City until 1937 when she transferred to
Intramuros, Manila. She was known to have resided there continuously until 1944.
Thereafter, up to the filing on December 22, 1960 of the petition for the summary
settlement of her estate, she has not been heard of and her whereabouts are still
unknown. More than ten (10) years having elapsed since the last time she was
known to be alive, she was declared presumptively dead for purposes of opening her
succession and distributing her estate among her heirs.
Melodia Ferraris left properties in Cebu City, consisting of one-third (1/3) share
in the estate of her aunt, Rosa Ferraris, valued at P6,000.00, more or less, and
which was adjudicated to her in Special Proceeding No. 13-V of the same court.
The deceased Melodia Ferraris left no surviving direct descendant, ascendant, or
spouse, but was survived only by collateral relatives, namely, Filomena Abellana de
Bacayo, an aunt and half-sister of decedents father, Anacleto Ferraris; and by
Gaudencia, Catalina, Conchita, and Juanito, all surnamed Ferraris, her nieces and
nephew, who were the children of Melodias only brother of full blood, Arturo
Ferraris, who pre-deceased her (the decedent). These two classes of heirs claim to be
the nearest intestate heirs and seek to participate in the estate of said Melodia
Ferraris.
The following diagram will help illustrate the degree of relationship of the
contending parties to said Melodia Ferraris:
The sole issue to be resolved in this case is: Who should inherit the intestate
estate of a deceased person when he or she is survived only by collateral relatives, to
wit: an aunt and the children of a brother who predeceased him or her? Otherwise,
will the aunt concur with the children of the decedents brother in the inheritance or
will the former be excluded by the latter?
The trial court ruled that the oppositors-appellees, as children of the only
predeceased brother of the decedent, exclude the aunt (petitioner-appellant) of the
same decedent, reasoning out that the former are nearer in degree (two degrees)
than the latter since nieces and nephews succeed by right of representation, while
petitioner-appellant is three degrees distant from the decedent, and that other
collateral relatives are excluded by brothers or sisters, or children of brothers or
sisters of the decedent in accordance with article 1009 of the New Civil Code.

Against the above ruling, petitioner-appellant contends in the present appeal that
she is of the same or equal degree of relationship as the oppositors-appellees, three
degrees removed from the decedent; and that under article 975 of the New Civil
Code no right of representation could take place when the nieces and nephew of the
decedent do not concur with an uncle or aunt, as in the case at bar, but rather the
former succeed in their own right.
We agree with appellants that as an aunt of the deceased, she is as far distant as
the nephews from the decedent (three degrees) since in the collateral line to which
both kinds of relatives belong degrees are counted by first ascending to the common
ancestor and then descending to the heir (Civil Cede, Art. 966). Appellant is
likewise right in her contention that nephews and nieces alone do not inherit by
right of representation (i.e., per stirpes) unless concurring with brothers or sisters of
the deceased, as provided expressly by Article 975:
ART. 975. When children of one or more brothers or sisters of the deceased survive, they
shall inherit from the latter by representation, if they survive with their uncles or aunts,
But if they alone survive, they shall inherit in equal portions. Nevertheless, the trial court
was correct when it held that, in case of intestacy, nephews and nieces of the de
cujus exclude all other collaterals (aunts and uncles, first cousins, etc.) from the succession.
This is readily apparent from articles 1001, 1004, 1005, and 1009 of the Civil Code of the
Philippines, that provided as follows:
ART. 1001. Should brothers and sisters or their children survive with the widow or
widower, the latter shall be entitled to one-half of the inheritance and the brothers and
sisters or their children to the other half.
ART. 1004. Should the only survivors be brothers and sisters of the full blood, they shall
inherit in equal shares.
ART. 1005. Should brothers and sisters survive together with nephews and nieces, who
are the children of the decedents brothers and sisters of the full blood, the former shall
inherit per capita, and the latterper stirpes.
ART. 1009. Should there be neither brothers nor sisters, nor children of brothers or
sisters, the other collateral relatives shall succeed to the estate.
The latter shall succeed without distinction of lines or preference among them by
reason of relationship by the whole blood.

Under the last article (1009), the absence of brothers, sisters, nephews and nieces of
the decedent is a precondition to the other collaterals (uncles, cousins, etc) being
called to the succession. This was also and more clearly the case under the Spanish
Civil Code of 1889, that immediately preceded the Civil Code now in force (R.A.
386). Thus, Articles 952 and 954 of the Code of 1889 prescribed as follows:
ART. 952. In the absence of brothers or sisters and of nephews or nieces, children of the
former, whether of the whole blood or not, the surviving spouse, if not separated by a final
decree of divorce, shall succeed to the entire estate of the deceased.
ART. 954. Should there be neither brothers or sisters, nor children of brothers or sisters,
nor a surviving spouse, the other collateral relatives, shall succeed to the estate of deceased.
The latter shall succeed without distinction of lines or preference among them by reason
of the whole blood.

It will be seen that under the preceding articles, brothers and sisters and nephews
and nieces inherited ab intestato ahead of the surviving spouse, while other
collaterals succeeded onlyafter the widower or widow. The present Civil Code of the
Philippines merely placed the spouse on a par with the nephews and nieces and
brothers and sisters of the deceased, but without altering the preferred position of
the latter vis-a-vis the other collaterals.
Appellants quote paragraph 2 of Tolentinos commentaries to Article 1009 of the
present Civil Code as declaring that Article 1009 does not establish a rule of
preference. Which is true as to other collaterals, since preference among them is
according to their proximity to the decedent, as established by Article 962,
paragraph 1.
ART. 962. In every inheritance, the relative nearest in degree excludes the more distant
ones, saving the right of representation when it properly takes place.

But Tolentino does not state that nephews and nieces concur with other collaterals
of equal degree. On the contrary, in the first paragrah of his commentaries to
Article 1009 (Vol. 11, p. 439) (which counsel for appellants had unethically omitted
to quote), Tolentino expressly states:
Other collaterals.The last of the relatives of the decedent to succeed in intestate
succession are the collaterals other than brothers or sisters or children of brothers or

sisters. They are, however, limited to relatives within the fifth degree. Beyond this, we can
safely say, there is hardly any affection to merit the succession of collaterals. Under the law,
therefore, relatives beyond the fifth degree are no longer considered as relatives, for
successional purpose?.
Article 1009 does not state any order of preference. Howver, this article should be
understood in connection with the general rule that the nearest relatives exclude the
farther. Collaterals of the same degree inherit in equal parts, there being no right of
representation. They succeed without distinction of lines or preference among them on
account of the whole blood relationship. (Italics supplied)

We, therefore, hold, and so rule, that under our laws of succession, a decedents
uncles and aunts may not succeed ab intestato so long as nephews and nieces of the
decedent survive and are willing and qualified to succeed. The decision appealed
from, in so far as it conforms to this rule, is hereby affirmed. No costs.
Bengzon,
C.J., Concepcion, Dizon,Regala, Makalintal, Bengzon,
J.P., andZaldivar, JJ., concur.
Bautista Angelo, J., took no part.
Decision affirmed.
o0o

No. L-18753. March 26, 1965.

VICENTE B. TEOTICO, petitioner-appellant, vs. ANA DEL VAL, ETC., oppositorappellant.
Settlement of decedents estate; Probate Proceedings; Only an interested party may
intervene.In order that a person may be allowed to intervene in a probate proceeding he
must have an interest in the estate, or in the will, or in the property to be effected by it
either as an executor or as a claimant of the tate, and an interested party has been defined
as one who would be benefited by the estate like a creditor.
Same; Same; Oppositor who would not benefit under the will nor as legal heir cannot
intervene in proceedings.Where under the terms of the will an oppositor has no interest in
the estate either as heir, executor or administrator, nor does she have any claim to any
property affected by the will, nor would she acquire any interest in any portion of the estate
as legal heir if the will were denied probate, it is held that said oppositor cannot intervene
in the probate proceedings.
Same; Same; Relationship by adoption does not extend to relatives of adopting parent or
of adopted child.Under our law the relationship established by adoption is limited solely
to the adopter and the adopted and does not extend to the relatives of the adopting parents
or of the adopted child except only as expressly provided for by law. Hence, no relationship is
created between the adopted and the collaterals of the adopting parents. As a consequence,
the adopted is an heir of the adopter but not of the relatives of the adopter.
Same; Improper pressure on testatrix;Burden of proof on person challenging will.The
exercise of improper pressure and undue influence must be supported by substantial
evidence and must be of a kind that would overpower and subjugate the mind of the
testatrix as to destroy her free agency and make her express the will of another rather than
her own (Goso v. Deza, 42 O.G. 596). The burden of proof is on the person challenging the
will that such influence was exerted at the time of its execution.
Same; Question of intrinsic validity of provisions of will cannot be entertained in
probate proceedings.Opposition to the intrinsic validity or legality of the provisions of the

will cannot be entertained in probate proceedings because its only purpose is merely to
determine if the will has been executed in accordance with the requirements of the law.

APPEAL from a decision of the Court of First Instance of Manila.

The facts are stated in the opinion of the Court.
Antonio Gonzales for petitioner-appellant.
J. C. Zulueta, G. D. David & N. J. Quisumbing for oppositor-appellant.
BAUTISTA ANGELO, J.:
Maria Mortera y Balsalobre Vda. de Aguirre died on July 14, 1955 in the City of
Manila leaving properties worth P600,000.00. She left a will written in Spanish
which she executed at her residence at No. 2 Legarda St., Quiapo, Manila. She
affixed her signature at the bottom of the will and on the left margin of each and
every page thereof in the presence of Pilar Borja, Pilar C. Sanchez, and Modesto
Formilleza, who in turn affixed their signatures below the attestation clause and on
the left margin of each and every page of the will in the presence of the testatrix and
of each other. Said will was acknowledged before Notary Public Niceforo S. Agaton
by the testatrix and her witnesses.
In said will the testatrix made the following preliminary statement: that she was
possessed of the full use of her mental faculties; that she was free from illegal
pressure or influence of any kind from the beneficiaries of the will and from any
influence of fear or threat; that she freely and spontaneously executed said will and
that she had neither ascendants nor descendants of any kind such that she could
freely dispose of all her estate.
Among the many legacies and devises made in the will was one of P20,000.00 to
Rene A. Teotico, married to the testatrixs niece named Josefina Mortera. To said
spouses the testatrix left the usufruct of her interest in the Calvo building, while
the naked ownership thereof she left in equal parts to her grandchildren who are
the legitimate children of said spouses. The testatrix also instituted Josefina
Mortera as her sole and universal heir to all the remainder of her properties not
otherwise disposed of in the will.

On July 17, 1955, Vicente B. Teotico filed a petition for the probate of the will
before the Court of First Instance of Manila which was set for hearing on September
3, 1955 after the requisite publication and service to all parties concerned.
Ana del Val Chan, claiming to be an adopted child of Francisca Mortera, a
deceased sister of the testatrix, as well as an acknowledged natural child of Jose
Mortera, a deceased brother of the same testatrix, filed on September 2, 1955 an
opposition to the probate of the will alleging the following grounds: (1) said will was
not executed as required by law; (2) the testatrix was physically and mentally
incapable to execute the will at the time of its execution; and (3) the will was
executed under duress, threat or influence of fear.
Vicente B. Teotico, filed a motion to dismiss the opposition alleging that the
oppositor had no legal personality to intervene. The probate court, after due
hearing, allowed the oppositor to intervene as an adopted child of Francisca
Mortera, and on June 17, 1959, the oppositor amended her opposition by alleging
the additional ground that the will is inoperative as to the share of Dr. Rene Teotico
because the latter was the physician who took care of the testatrix during her last
illness.
After the parties had presented their evidence, the probate court rendered its
decision on November 10, 1960, admitting the will to probate but declaring the
disposition made in favor of Dr. Rene Teotico void with the statement that the
portion to be vacated by the annulment should pass to the testatrixs heirs by way of
intestate succession.
Petitioner Teotico, together with the universal heir Josefina Mortera, filed a
motion for reconsideration of that part of the decision which declares the portion of
the estate to be vacated by the nullity of the legacy made to Dr. Rene Teotico as
passing to the legal heirs, while the oppositor filed also a motion for reconsideration
of the portion of the judgment which decrees the probate of the will. On his part, Dr.
Rene Teotico requested leave to intervene and to file a motion for reconsideration
with regard to that portion of the decision which nullified the legacy made in his
favor.
The motions for reconsideration above adverted to having been denied, both
petitioner and oppositor appealed from the decision, the former from that portion

which nullifies the legacy in favor of Dr. Rene Teotico and declares the vacated
portion as subject of succession in favor of the legal heirs, and the latter from that
portion which admits the will to probate. And in this instance both petitioner and
oppositor assign several errors which, stripped of non-essentials, may be boiled
down to the following: (1) Has oppositor Ana del Val Chan the right to intervene in
this proceeding?; (2) Has the will in question been duly admitted to probate?; (3) Did
the probate court commit an error in passing on the intrinsic validity of the
provisions of the will and in determining who should inherit the portion to be
vacated by the nullification of the legacy made in favor of Dr. Rene Teotico?
These issues will be discussed separately.
1. 1.It is a well-settled rule that in order that a person may be allowed to intervene in a
probate proceeding he must have an interest in the estate, or in the will, or in the
property to be affected by it either as executor or as a claimant of the estate (Ngo
The Hua v. Chung Kiat Hua, et al., L-17091, September 30, 1963); and an
interested party has been defined as one who would be benefited by the estate such
as an heir or one who has a claim against the estate like a creditor (Idem). On the
other hand, in Saguinsin v. Lindayag, et al., L-17750, December 17, 1962, this
Court said:
According to Section 2, Rule 80 of the Rules of Court, a petition for letters of
administration must be filed by an interested person. An interested party has been defined
in this connection as one who would be benefited by the estate, such as an heir, or one who
has a claim against the estate, such as a creditor (Intestate Estate of Julio Magbanwa 40
O.G. 1171). And it is well settled in this jurisdiction that in civil actions as well as special
proceedings, the interest required in order that a person may be a party thereto must be
material and direct, and not merely indirect or contingent (Trillana vs. Crisostomo. G.R. No.
L-3370, August 22, 1951; Rapinosa vs. Barrion, 70 Phil. 311).

The question now may be asked: Has oppositor any interest in any of the provisions
of the will, and, in the negative, would she acquire any right to the estate in the
event that the will is denied probate?
Under the terms of the will, oppositor has no right to intervene because she has
no interest in the estate either as heir, executor, or administrator, nor does she have
any claim to any property affected by the will, because it nowhere appears therein
any provision designating her as heir, legatee or devisee of any portion of the estate.
She has also no interest in the will either as administratrix or executrix. Neither

has she any claim against any portion of the estate because she is not a co-owner
thereof, and while she previously had an interest in the Calvo building located in
Escolta, she had already disposed of it long before the execution of the will.
In the supposition that, the will is denied probate, would the oppositor acquire
any interest in any portion of the estate left by the testatrix? She would acquire
such right only if she were a legal heir of the deceased, but she is not under our
Civil Code. It is true that oppositor claims to be an acknowledged natural child of
Jose Mortera, a deceased brother of the deceased, and also an adopted daughter of
Francisca Mortera, a deceased sister of the testatrix, but such claim cannot give her
any comfort for, even if it be true, the law does not give her any right to succeed to
the estate of the deceased sister of both Jose Mortera and Francisca Mortera. And
this is so because being an illegitimate child she is prohibited by law from
succeeding to the legitimate relatives of her natural father. Thus, Article 992 of our
Civil Code provides: An illegitimate child has no right to inherit ab intestato from
the legitimate children and relatives of his father or mother; x x x. And the
philosophy behind this provision is well expressed in Grey v. Fabie, 68 Phil. 128, as
follows:
Between the natural child and the legitimate relatives of the father or mother who
acknowledged it, the Code denies any right of succession. They cannot be called relatives
and they have no right to inherit. Of course, there is a blood tie, but the law does not
recognize it. On this, article 943 is based upon the reality of the facts and upon the
presumption will of the interested parties; the natural child is disgracefully looked down
upon by the legitimate family; the legitimate family is, in turn, hated by the natural child;
the latter considers the privileged condition of the former and the resources of which it is
thereby deprived; the former, in turn, sees in the natural child nothing but the product of
sin, a palpable evidence of a blemish upon the family. Every relation is ordinarily broken in
life; the law does no more than recognize this truth, by avoiding further grounds of
resentment. (7 Manresa, 3d., p. 110.)

The oppositor cannot also derive comfort from the fact that she is an adopted child
of Francisca Mortera because under our law the relationship established by
adoption is limited solely to the adopter and the adopted and does not extend to the
relatives of the adopting parents or of the adopted child except only as expressly
provided for by law. Hence, no relationship is created between the adopted and the
collaterals of the adopting parents. As a consequence, the adopted is an heir of the
adopter but not of the relatives of the adopter.

The relationship established by the adoption, however, is limited to the adopting parent,
and does not extend to his other relatives, except as expressly provided by law. Thus, the
adopted child cannot be considered as a relative of the ascendants and collaterals of the
adopting parents, nor of the legitimate children which they may have after the adoption,
except that the law imposes certain impediments to marriage by reason of adoption. Neither
are the children of the adopted considered as descendants of the adopter. The relationship
created is exclusively between the adopter and the adopted, and does not extend to the
relatives of either. (Tolentino, Civil Code of the Philippines, Vol. 1, p. 652)
Relationship by adoption is limited to adopter and adopted, and does not extend to other
members of the family of either; but the adopted is prohibited to marry the children of the
adopter to avoid scandal. (An Outline of Philippine Civil Law by Justice Jose B. L. Reyes
and Ricardo C. Puno, Vol. 1, p. 313; See also Caguioa, Comments and Cases on Civil
Law 1955, Vol. 1, pp. 312-313; Paras, Civil Code of the Philippines, 1959 ed., Vol. 1, p. 515)

It thus appears that the oppositor has no right to intervene either as testamentary
or as legal heir in this probate proceeding contrary to the ruling of the court a quo.
1. 2.The next question to be determined is whether the will Exhibit A was duly
admitted to probate. Oppositor claims that the same should not have been admitted
not only because it was not properly attested to but also because it was procured
thru pressure and influence and the testatrix affixed her signature by mistake
believing that it contained her true intent.

The claim that the will was not properly attested to is contradicted by the evidence
of record. In this respect it is fit that we state briefly the declarations of the
instrumental witnesses.
Pilar Borja testified that the testatrix was in perfect state of health at the time
she executed the will for she carried her conversation with her intelligently; that the
testatrix signed immediately above the attestation clause and on each and every
page thereof at the left-hand margin in the presence of the three instrumental
witnesses and the notary public; that it was the testatrix herself who asked her and
the other witnesses to act as such; and that the testatrix was the first one to sign
and later she gave the will to the witnesses who read and signed it.
Pilar G. Sanchez also testified that she knew the testatrix since 1945; that it was
the testatrix herself who asked her to be a witness to the will; that the testatrix was
the first one to sign and she gave the will later to the witnesses to sign and

afterwards she gave it to the notary public; that on the day of the execution of the
will the testatrix was in the best of health.
Modesto Formilleza also testified that he was asked by the testatrix to be one of
the witnesses to the will; that he read and understood the attestation clause before
he signed the document, and all the witnesses spoke either in Spanish or in
Tagalog. He finally said that the instrumental witnesses and the testatrix signed
the will at the same time and place and identified their signatures.
This evidence which has not been successfully refuted proves conclusively that
the will was duly executed because it was signed by the testatrix and her
instrumental witnesses and the notary public in the manner provided for by law.
The claim that the will was procured by improper pressure and influence is also
belied by the evidence. On this point the court a quo made the following observation:
The circumstance that the testatrix was then living under the same roof with Dr. Rene
Teotico is no proof adequate in law to sustain the conclusion that there was improper
pressure and undue influence. Nor is the alleged fact of isolation of the testatrix from the
oppositor and her witnesses, for their supposed failure to see personally the testatrix,
attributable to the vehemence of Dr. Rene Teotico, to exclude visitors, took place years after
the execution of the will on May 17, 1951. Although those facts may have some weight to
support the theory of the oppositor, yet they must perforce yield to the weightier fact that
nothing could have prevented the testatrix, had she really wanted to, from subsequently
revoking her 1951 will if it did not in fact reflect and express her own testamentary
dispositions. For, as testified to by the oppositor and her witnesses, the testatrix was often
seen at the Escolta, in Quiapo and Sta. Cruz, Manila, walking and accompanied by no one.
In fact, on different occasions, each of them was able to talk with her.

We have examined the evidence on the matter and we are fully in accord with the
foregoing observation. Moreover, the mere claim that Josefina Mortera and her
husband Rene Teotico had the opportunity to exert pressure on the testatrix simply
because she lived in their house several years prior to the execution of the will and
that she was old and suffering from hypertension in that she was virtually isolated
from her friends for several years prior to her death is insufficient to disprove what
the instrumental witnesses had testified that the testatrix freely and voluntarily
and with full consciousness of the solemnity of the occasion executed the will under
consideration. The exercise of improper pressure and undue influence must be

supported by substantial evidence and must be of a kind that would overpower and
subjugate the mind of the testatrix as to destroy her free agency and make her
express the will of another rather than her own (Coso v. Deza, 42 O.G. 596). The
burden is on the person challenging the will that such influence was exerted at the
time of its execution, a matter which here was not done, for the evidence presented
not only is insufficient but was disproved by the testimony of the instrumental
witnesses.
1. 3.The question of whether the probate court could determine the intrinsic validity of
the provisions of a will has been decided by this Court in a long line of decisions
among which the following may be cited:
Opposition to the intrinsic validity or legality of the provisions of the will cannot be
entertained in Probate proceeding because its only purpose is merely to determine if the
will has been executed in accordance with the requirements of the law. (Palacios v.
Palacios, 58 O.G. 220)
x x x The authentication of a will decides no other questions than such as touch upon
the capacity of the testator and the compliance with those requisites or solemnities which
the law prescribes for the validity of wills. It does not determine nor even by implication
prejudge the validity or efficiency of the provisions, these may be impugned as being vicious
or null, notwithstanding its authentication. The questions relating to these points remain
entirely unaffected, and may be raised even after the will has been authenticated. x x x
From the fact that the legalization of a will does not validate the provisions therein
contained, it does not follow that such provisions lack the efficiency, or fail to produce the
effects which the law recognizes when they arc not impugned by anyone. In the matter of
wills it is a fundamental doctrine that the will of the testator is the law governing the
interested parties, and must be punctually complied with in so far as it is not contrary to
the law or to public morals. (Montaano v. Suesa, 14 Phil. 676, 679-680)
To establish conclusively as against everyone, and once for all, the facts that a will was
executed with the formalities required by law and that the testator was in a condition to
make a will, is the only purpose of the proceedings under the new code for the probate of a
will. (Sec. 625.) The judgment in such proceedings determines and can determine nothing
more. In them the court has no power to pass upon the validity of any provisions made in
the will. It can not decide, for example, that a certain legacy is void and another one is
valid. (Castaeda v. Alemany,3 Phil. 426, 428)

Pursuant to the foregoing precedents the pronouncement made by the court a

quodeclaring invalid the legacy made to Dr. Rene Teotico in the will Exhibit A must
be set aside as having been made in excess of its jurisdiction. Another reason why
said pronouncement should be set aside is that the legatee was not given an
opportunity to defend the validity of the legacy for he was not allowed to intervene
in this proceeding. As a corollary, the other pronouncements touching on the
disposition of the estate in favor of some relatives of the deceased should also be set
aside for the same reason.
WHEREFORE, with the exception of that portion of the decision which declares
that the will in question has been duly executed and admitted the same to probate,
the rest of the decision is hereby set aside. This case is ordered remanded to the
court a quofor further proceedings. No pronouncement as to costs.
Bengzon,
C.J., Concepcion, Reyes,J.B.L., Barrera, Paredes, Regala,Makalintal, Bengzon,
J.P., and Zaldivar, JJ., concur.
Dizon, J., took no part.
Decision set aside with exception and case remanded to court a quo for further
proceedings.
Notes.It is well-settled that one who has or can have no interest in succeeding
a decedent cannot oppose the probate of his alleged will. (In the matter of the Will of
Kabigting, 14 Phil. 463; Paras vs. Narciso, 35 Phil. 244; Asinas vs. Court of First
Instance, 51 Phil. 665; Reyes vs. Isip, 97 Phil 11.) The recent reiteration of the same
ruling was in Butiong vs. Surigao Consolidated Mining Co., Inc.,24 SCRA 550,
where the Supreme Court held that appellant corporation cannot oppose the
probate of an alleged will, not having claimed interest in the succession to deceased
testator.
In the case of Torres and Lopez de Bueno vs. Lopez, 48 Phil. 772, the Supreme
Court held that neither old age, physical infirmities, feebleness of mind, weakness
of the memory, the appointment of a guardian, eccentricities singly or jointly to
show testamentary incapacity. The nature and rationality of the will is of some
practical utility in determining capacity. Each case rests on its own facts and must
be decided by its own facts.

No. L-22036. April 30, 1979.

TESTATE ESTATE OF THE LATE REVEREND FATHER PASCUAL RIGOR. THE

PARISH PRIEST OF THE ROMAN CATHOLIC CHURCH OF VICTORIA, TARLAC,
petitioner-appellant, vs. BELINA RIGOR, NESTORA RIGOR, FRANCISCA
ESCOBAR DE RIGOR and JOVITA ESCOBAR DE FAUSTO, respondentsappellees.
Settlement of Estate; Will of Testator is the first and principal law in the matter of Testaments.The
will of the testator is the first and principal law in the matter of testaments. When his intention is clearly
and precisely expressed, any interpretation must be in accord when it may certainly appear that his
intention was different from that literally expressed (In re Estate of Caldero, 26 Phil. 237-8).
Same; Same.One canon in the interpretation of the testamentary provisions is that the testators
intention is to be ascertained from the words of the will, taking into consideration the circumstances as
this intention (Art. 789, Civil Code of the Philippines).
Same; A bequest of land to the nearest male relative of the grantor who would study for the
priesthood construed to mean the grantors nearest male relative living at the time of his death and not
any indefinite time thereafter.We hold that the said bequest refers to the testators nearest male
relativeliving at the time of his death and not to anyindefinite time thereafter. In order to be capacitated
to inherit, the heir, devisee or legatee must be living at the moment the succession opens, except in case of
representation, when it is proper. The said testamentary provisions should be sensibly or reasonably
construed. To construe them as referring to the testators nearest male relative at any time after his
death would render the provisions difficult to apply and create uncertainty as to the disposition of his
estate. That could not have been his intention.
Same; Same.In 1935, when the testator died, his nearest legal heirs were his three sisters or
second-degree relatives, Mrs. Escobar, Mrs. Manaloto and Mrs. Quiambao. Obviously, when the testator
specified his nearest male relative, he must have had in mind his nephew or a son of his sister, who would
be his third-degree relative, or possibly a grandnephew. But since he could not prognosticate the exact
date of his death or state with certitude what category of nearest male relative would be living at the time
of his death, he could not specify that his nearest male relative would be his nephew or grandnephew (the
son of his nephew or niece) and so he had to use the term nearest male relative.
Same; Evidence; Evidence aliunde has no probative value.Of course, Mrs. Gamalindas affidavit,
which is tantamount to evidence aliunde as to the testators intention and which is hearsay, has no
probative value. Our opinion that the said bequest refers to the testators nephew who was living at the
time of his death, when his succession was opened and the successional rights to his estate became vested,
rests on a judicious and unbiased reading of the terms of the will.

Same; As the testator was not survived by a nephew who became a priest the bequest became
inoperative and the administration of the ricelands of the parish priest of Victoria, Tarlac also became
inoperative.Inasmuch as the testator was not survived by any nephew who became a priest, the
unavoidable conclusion is that the bequest in question was ineffectual or inoperative. Therefore, the
administration of the ricelands by the parish priest of Victoria, as envisaged in the will, was likewise
inoperative.
Same; Where the parish priest of Victoria, Tarlac, could, under the bequest, become a trustee only
when any of the testators nephews living at the time of his death had not yet entered the seminary or
being a priest was excommunicated, and these contingencies never arose, said parish priest cannot be
deemed a substitute devisee.The appellant in contending that a public charitable trust was constituted
by the testator in his favor assumes that he was a trustee or substitute devisee. That contention is
untenable. A reading of the testamentary provisions regarding the disputed bequest does not support the
view that the parish priest of Victoria was a trustee or a substitute devisee in the event that the testator was
not survived by a nephew who became a priest. It should be underscored that the parish priest of Victoria
could become a trustee only when the testators nephew living at the time of his death, who desired to
become a priest, had not yet entered the seminary or, having been ordained a priest, he was
excommunicated. Those two contingencies did not arise, and could not have arisen, in this case because
no nephew of the testator manifest any intention to enter the seminary or ever became a priest.
Same; Where a bequest is inoperative the same shall be merged, as a rule, to the testators estate.
The Court of Appeals correctly ruled that this case is covered by article 888 of the Old Civil Code, now
Article 956, which provides that if the bequest for any reason should be inoperative, it shall be merged
into the estate, except in cases of substitution and those in which the right of accretion exists. (el legado
x x x por qualquier causa, no tenga efecto, se refundira en la masa de la herencia, fuera, de los cases de
sustitucion y derecho de acrecer).
Same; A person may die partly testate and partly intestate.The Civil Code recognizes that a
person may die partly testate and partly intestate, or that there may be mixed succession. The old rule as
to the indivisibility of the testators will is no longer valid. Thus, if a conditional legacy does not take
effect, there will be intestate succession as to the property covered by the said legacy (Macrahon Ong
Ham vs. Saavedra, 51 Phil. 267).

APPEAL from the decision of the Court of Appeals.

The facts are stated in the opinion of the Court.
D. Taedo, Jr. for appellants.
J. Palanca Sr. for appellee.
AQUINO, J.:

This case is about the efficaciousness or enforceability of a devise of ricelands located at

Guimba, Nueva Ecija, with a total area of around forty-four hectares. That devise was made in
the will of the late Father Pascual Rigor, a native of Victoria, Tarlac, in favor of his nearest male
relative who would study for the priesthood.
The parish priest of Victoria, who claimed to be a trustee of the said lands, appealed to this
Court from the decision of the Court of Appeals affirming the order of the probate court
declaring that the said devise was inoperative (Rigor vs. Parish Priest of the Roman Catholic
Church of Victoria, Tarlac, CA-G.R. No. 24319 R, August 1, 1963).
The record discloses that Father Rigor, the parish priest of Pulilan, Bulacan, died on August 9,
1935, leaving a will executed on October 29, 1933 which was probated by the Court of First
Instance of Tarlac in its order of December 5, 1935. Named as devisees in the will were the
testators nearest relatives, namely, his three sisters: Florencia Rigor-Escobar, Belina RigorManaloto and Nestora Rigor-Quiambao. The testator gave a devise to his cousin, Fortunato
Gamalinda.
In addition, the will contained the following controversial bequest (paragraphing supplied to
facilitate comprehension of the testamentary provisions):
Doy y dejo como legado CUATRO (4) PARCELAS de terreno palayeros, situados en el municipio de
Guimba de la provincia de NUEVA ECIJA, cuyo num. de CERTIFICADO DE TRANSFERENCIA DE
TITULO SON;Titulo Num. 6530, mide 16,249 m. cuadrados de superficie; Titulo Num. 6548, mide
242,998 m. cuadrados de superficie; Titulo Num. 6525, mide 62,665 m. cuadrados de superficie; y Titulo
Num. 6521, mide 119,251 m. cuadrados de superficie; a cualquier pariente mio varon mas cercano que
estudie la carrera eclesiastica hasta ordenarse de Presbiterado o sea Sacerdote; las condiciones de estate
legado son:
1. (1.a)Prohibe en absoluto la venta de estos terrenos arriba situados objectos
de este legado;
2. (2.a)Que el legatario pariente mio mas cercano tendra derecho de empezar
a gozar y administrar de este legado al principiar a curzar la Sagrada
Teologia, y ordenado de Sacerdote, hasta su muerte; pero que pierde el
legatario este derecho de administrar y gozar de este legado al dejar de
continuar sus estudios para ordenarse de Presbiterado (Sacerdote).
Que el legatario una vez Sacerdote ya estara obligado a celebrar cada ao VEINTE (20) Misas
rezadas en sufragio de mi alma y de mis padres difuntos, y si el actual legatario, quedase excomulgado,
IPSO FACTO se le despoja este legado, y la administracion de esto pasara a cargo del actual Parroco y
sus sucesores de la Iglesia Catolica de Victoria, Tarlac.

Y en intervalo de tiempo que no haya legatario acondicionado segun lo arriba queda expresado,
pasara la administracion de este legado a cargo del actual Parroco Catolico y sus sucesores, de Victoria,
Tarlac.
El Parroco administrador de estate legado, acumulara anualmente todos los productos que puede
tener estate legado, ganando o sacando de los productos anuales el CINCO (5) por ciento para su
administracion, y los derechos correspondientes de las VEINTE (20) Misas rezadas que debiera el
Parroco celebrar cada ao, depositando todo lo restante de los productos de estate legado, en un banco, a
nombre de estate legado.

To implement the foregoing bequest, the administratrix in 1940 submitted a project of partition
containing the following item:
5. LEGACY OF THE CHURCH
That it be adjudicated in favor of the legacy purported to be given to the nearest male relative who
shall take the priesthood, and in the interim to be administered by the actual Catholic Priest of the Roman
Catholic Church of Victoria, Tarlac, Philippines, or his successors, the real properties hereinbelow
indicated, to wit:

Titl
e No.

Lot
No.

Area in Tax
Has.
Dec.

T6530

3663 1.6249 18740 P340.00

T6548

3445- 24.299 18730 7,290.00

C
8

T6525

3670 6.2665 18736 1,880.00

T6521

3666 11.9251 18733 3,580.00

Total area 44.1163

and value

Ass. Value

P13,090.00

Judge Roman A. Cruz in his order of August 15, 1940, approving the project of partition,
directed that after payment of the obligations of the estate (including the sum of P3,132.26 due to
the church of the Victoria parish) the administratrix should deliver to the devisees their
respective shares.
It may be noted that the administratrix and Judge Cruz did not bother to analyze the meaning
and implications of Father Rigors bequest to his nearest male relative who would study for the
priesthood. Inasmuch as no nephew of the testator claimed the devise and as the administratrix
and the legal heirs believed that the parish priest of Victoria had no right to administer the
ricelands, the same were not delivered to that ecclesiastic. The testate proceeding remained
pending.
About thirteen years after the approval of the project of partition, or on February 19, 1954, the
parish priest of Victoria filed in the pending testate proceeding a petition praying for the
appointment of a new administrator (succeeding the deceased administratrix, Florencia Rigor),
who should deliver to the church the said ricelands, and further praying that the possessors
thereof be ordered to render an accounting of the fruits. The probate court granted the petition, A
new administrator was appointed. On January 31, 1957 the parish priest filed another petition for
the delivery of the ricelands to the church as trustee.
The intestate heirs of Father Rigor countered with a petition dated March 25, 1957 praying
that the bequest be declared inoperative and that they be adjudged as the persons entitled to the
said ricelands since, as admitted by the parish priest of Victoria, no nearest male relative of the
testator has ever studied for the priesthood (pp. 25 and 35, Record on Appeal).
That petition was opposed by the parish priest of Victoria.
Finding that petition to be meritorious, the lower court, through Judge Bernabe de Aquino,
declared the bequest inoperative and adjudicated the ricelands to the testators legal heirs in his
order of June 28, 1957. The parish priest filed two motions for reconsideration.
Judge De Aquino granted the second motion for reconsideration in his order of December 10,
1957 on the ground that the testator had a grandnephew named Edgardo G. Cunanan (the
grandson of his first cousin) who was a seminarian in the San Jose Seminary of the Jesuit Fathers
in Quezon City. The administrator was directed to deliver the ricelands to the parish priest of
Victoria as trustee.
The legal heirs appealed to the Court of Appeals. It reversed that order. It held that Father
Rigor had created a testamentary trust for his nearest male relative who would take the holy
orders but that such trust could exist only for twenty years because to enforce it beyond that
period would violate the rule against perpetuities. It ruled that since no legatee claimed the

ricelands within twenty years after the testators death, the same should pass to his legal heirs,
citing articles 888 and 912(2) of the old Civil Code and article 870 of the new Civil Coda
The parish priest in this appeal contends that the Court of Appeals erred in not finding that the
testator created a public charitable trust and in not liberally construing the testamentary
provisions so as to render the trust operative and to prevent intestacy.
As refutation, the legal heirs argue that the Court of Appeals declared the bequest inoperative
because no one among the testators nearest male relatives had studied for the priesthood and not
because the trust was a private charitable trust. According to the legal heirs, that factual finding is
binding on this Court. They point out that appellant priests change of theory cannot be
countenanced in this appeal.
In this case, as in cases involving the law of contracts and statutory construction, where the
intention of the contracting parties or of the lawmaking body is to be ascertained, the primary
issue is the determination of the testators intention which is the law of the case (dicat testor et
erit lex. Santos vs. Manarang, 27 Phil. 209, 215; Rodriguez vs. Court of Appeals,L-28734, March
28, 1969, 27 SCRA 546).
The will of the testator is the first and principal law in the matter of testaments. When his
intention is clearly and precisely expressed, any interpretation must be in accord with the plain
and literal meaning of his words, except when it may certainly appear that his intention was
different from that literally expressed (In re Estate of Calderon, 26 Phil. 333).
The intent of the testator is the cardinal rule in the construction of wills. It is the life and
soul of a will. It is the first greatest rule, the sovereign guide, the polestar, in giving effect to a
will. (See Dissent of Justice Moreland inSantos vs. Manarang, 27 Phil. 209, 223, 237-8.)
One canon in the interpretation of the testamentary provisions is that the testators intention
is to be ascertained from the words of the will, taking into consideration the circumstances under
which it was made, but excluding the testators oral declarations as to his intention (Art 789,
Civil Code of the Philippines).
To ascertain Father Rigors intention, it may be useful to make the following restatement of
the provisions of his will:
1. 1.that he bequeathed the ricelands to anyone of his nearest male relatives
who would pursue an ecclesiastical career until his ordination as a priest.
2. 2.That the devisee could not sell the ricelands.
3. 3.That the devisee at the inception of his studies in sacred theology could
enjoy and administer the ricelands, and once ordained as a priest, he could

continue enjoying and administering the same up to the time of his death
but the devisee would cease to enjoy and administer the ricelands if he
discontinued his studies for the priesthood.
4. 4.That if the devisee became a priest, he would be obligated to celebrate
every year twenty masses with prayers for the repose of the souls of Father
Rigor and his parents.

1. 5.That if the devisee is excommunicated, he would be divested of the legacy

and the administration of the ricelands would pass to the incumbent parish
priest of Victoria and his successors.

2. 6.That during the interval of time that there is no qualified devisee, as

contemplated above, the administration of the ricelands would be under the
responsibility of the incumbent parish priest of Victoria and his successors,
and
3. 7.That the parish priest-administrator of the ricelands would accumulate
annually the products thereof, obtaining or getting from the annual produce
five percent thereof for his administration and the fees corresponding to the
twenty masses with prayers that the parish priest would celebrate for each
year, depositing the balance of the income of the devise in the bank in the
names of his bequest.

From the foregoing testamentary provisions, it may be deduced that the testator intended to
devise the ricelands to his nearest male relative who would become a priest, who was forbidden
to sell the ricelands, who would lose the devise if he discontinued his studies for the priesthood,
or having been ordained a priest, he was excommunicated, and who would be obligated to say
annually twenty masses with prayers for the repose of the souls of the testator and his parents.
On the other hand, it is clear that the parish priest of Victoria would administer the ricelands
only in two situations: one, during the interval of time that no nearest male relative of the testator
was studying for the priesthood and two, in case the testators nephew became a priest and he
was excommunicated.
What is not clear is the duration of el intervalo de tiempo que no haya legatario
acondicionado, or how long after the testators death would it be determined that he had a
nephew who would pursue an ecclesiastical vocation. It is that patent ambiguity that has brought
about the controversy between the parish priest of Victoria and the testators legal heirs.
Interwoven with that equivocal provision is the time when the nearest male relative who
would study for the priesthood should he determined. Did the testator contemplate only his
nearest male relative at the time of his death? Or did he have in mind any of his nearest male
relatives at anytime after his death?

We hold that the said bequest refers to the testators nearest male relative living at the time of
his death and not to anyindefinite time thereafter. In order to be capacitated to inherit, the heir,
devisee or legatee must be living at the moment the succession opens, except in case of
representation, when it is proper (Art. 1025, Civil Code).
The said testamentary provisions should be sensibly or reasonably construed. To construe
them as referring to the testators nearest male relative atanytime after his death would render the
provisions difficult to apply and create uncertainty as to the disposition of his estate. That could
not have been his intention.
In 1935, when the testator died, his nearest legal heirs were his three sisters or second-degree
relatives, Mrs. Escobar, Mrs. Manaloto and Mrs. Quiambao. Obviously, when the testator
specified his nearest male relative, he must have had in mind his nephew or a son of his sister,
who would be his third-degree relative, or possibly a grandnephew. But since he could not
prognosticate the exact date of his death or state with certitude what category of nearest male
relative would be living at the time of his death, he could not specify that his nearest male
relative would be his nephew or grandnephews (the sone of his nephew or niece) and so he had
to use the term nearest male relative.
It is contended by the legal heirs that the said devise was in reality intended for Ramon
Quiambao, the testators nephew and godchild, who was the son of his sister, Mrs. Quiambao. To
prove that contention, the legal heirs presented in the lower court the affidavit of Beatriz
Gamalinda, the maternal grandmother of Edgardo Cunanan, who deposed that after Father
Rigors death, her own son, Valentin Gamalinda, Jr., did not claim the devise, although he was
studying for the priesthood at the San Carlos Seminary, because she (Beatriz) knew that Father
Rigor had intended that devise for his nearest male relative beloning to the Rigor family (pp.
105-114, Record on Appeal).
Mrs. Gamalinda further deposed that her own grandchild, Edgardo G. Cunanan, was not the
one contemplated in Father Rigors will and that Edgardos father told her that he was not
consulted by the parish priest of Victoria before the latter filed his second motion for
reconsideration which was based on the ground that the testators grandnephew, Edgardo, was
studying for the priesthood at the San Jose Seminary.
Parenthetically, it should be stated at this juncture that Edgardo ceased to be a seminarian in
1961. For that reason, the legal heirs apprised the Court of Appeals that the probate courts order
adjudicating the ricelands to the parish priest of Victoria had no more leg to stand on (p. 84,
Appellants brief).
Of course, Mrs. Gamalindas affidavit, which is tantamount to evidence aliundeas to the
testators intention and which is hearsay, has no probative value. Our opinion that the said

bequest refers to the testators nephew who was living at the time of his death, when his
succession was opened and the successional rights to his estate became vested, rests on a
judicious and unbiased reading of the terms of the will.
Had the testator intended that the cualquier pariente mio varon mas cercano que estudie la
carrera eclesiastica would include indefinitely anyone of his nearest male relatives born after
his death, he could have so specified in his will. He must have known that such a broad provision
would suspend for an unlimited period of time the efficaciousness of his bequest.
What then did the testator mean by el intervalo de tiempo que no haya legatario
acondidonado? The reasonable view is that he was referring to a situation whereby his nephew
living at the time of his death, who would like to become a priest, was still in grade school or in
high school or was not yet in the seminary. In that case, the parish priest of Victoria would
administer the ricelands before the nephew entered the seminary. But the moment the testators
nephew entered the seminary, then he would be entitled to enjoy and administer the ricelands and
receive the fruits thereof. In that event, the trusteeship would be terminated.
Following that interpretation of the will, the inquiry would be whether at the time Father Rigor
died in 1935 he had a nephew who was studying for the priesthood or who had manifested his
desire to follow the ecclesiastical career. That query is categorically answered in paragraph 4 of
appellant priests petitions of February 19, 1954 and January 31, 1957. He unequivocally alleged
therein that no nearest male relative of the late (Father) Pascual Rigor has ever studied for the
priesthood (pp. 25 and 35, Record on Appeal).
Inasmuch as the testator was not survived by any nephew who became a priest, the
unavoidable conclusion is that the bequest in question was ineffectual or inoperative. Therefore,
the administration of the ricelands by the parish priest of Victoria, as envisaged in the will, was
likewise inoperative.
The appellant in contending that a public charitable trust was constituted by the testator in is
favor assumes that he was a trustee or a substitute devisee. That contention is untenable. A
reading of the testamentary provisions regarding the disputed bequest not support the view that
the parish priest of Victoria was a trustee or a substitute devisee in the event that the testator was
not survived by a nephew who became a priest.
It should be understood that the parish priest of Victoria could become a trustee only when the
testators nephew living at the time of his death, who desired to become a priest, had not yet
entered the seminary or, having been ordained a priest, he was excommunicated. Those two
contingencies did not arise, and could not have arisen, in this case because no nephew of the
testator manifested any intention to enter the seminary or ever became a priest.

The Court of Appeals correctly ruled that this case is covered by article 888 of the old Civil
Code, now article 956, which provides that if the bequest for any reason should be inoperative,
it shall be merged into the estate, except in cases of substitution and those in which the right of
accretion exists (el legado x x x por qualquier causa, no tenga efecto, se refundir en la masa
de la herencia, fuera de los casos de sustitucin y derecho de acrecer).
This case is also covered by article 912(2) of the old Civil Code, now article 960 (2),
which provides that legal succession takes place when the will does not dispose of all
that belongs to the testator. There being no substitution nor accretion as to the said
ricelands, the same should be distributed among the testators legal heirs. The effect
is as if the testator had made no disposition as to the said ricelands.
The Civil Code recognizes that a person may die partly testate and partly
intestate, or that there may be mixed succession. The old rule as to the indivisibility
of the testators will is no longer valid. Thus, if a conditional legacy does not take
effect, there will be intestate succession as to the property covered by the said legacy
(Macrohon Ong Ham vs. Saavedra, 51 Phil. 267).
We find no merit in the appeal. The Appellate Courts decision is affirmed. Costs
against the petitioner.
SO ORDERED.
Fernando (Actg. C.J.), Barredo(Actg. Chairman), Antonio, Concepcion Jr.,
and Santos, JJ., concur.
Abad Santos, J., did not take part.
Decision affirmed.
Notes.It is essentially the duty of every person dealing at arms length with the
administrator of an estate subject of settlement and liquidation to inquire about the
existence of claims against, or of persons having an interest in the estate subject to
probate and settlement proceedings. (Dolor vs. Sundiam, 39 SCRA 616).
The better practice for the heir who has not received his share is to demand his
share through a proper motion in the same probate or administration proceedings if
it had already been closed, and through an independent action which would be tried
by another Court or Judge which may thus reverse a decision or order of the probate

or intestate court already final and executed. (Guilas vs. Judge of Court of First
Instance, 43 SCRA 111; Macias vs. Uy Kim, 45 SCRA 251.)
A will may be allowed even if some witnesses do not remember having attested to
it, if other evidence satisfactorily show due execution. Failure of a witness to identify
his signature will not necessarily bar probate. (Maravilla vs. Maravilla, 37 SCRA
672).
Testate proceedings for the settlement of the estate of a deceased person take
precedence over intestate proceedings for the same purpose. (Uriarte vs. Court of First
Instance of Negros Occidental, 33 SCRA 252.)
The power to settle decedents estate is conferred by law upon all Courts of First
Instance, and the domicile of the testator only affects the venue but not the
jurisdiction of the court. (Rodriguez vs. Borja, 17 SCRA 418.)
In a special proceeding for the settlement of an estate, the court has no jurisdiction
to determine who are the heirs of the brother of the deceased and who should inherit
his estate. (Bacani vs. Galauran, 4 SCRA 1063.)
The probate court acted correctly in holding a hearing to determine the amount
and the manner in which an heir, in possession of a portion of the decedents estate,
should contribute for the payment of the creditors claims and taxes. (Ignacio vs.
Elchico, 20 SCRA 100.)
Every act intended to put an end to in division among coheirs and legatees and
divisees is deemed to be a partition, although it should purport to be a sale, an
exchange, a compromise, or any other transaction (Art. 1082, New Civil Code).
(Gutierrez vs. Villegas, 5 SCRA 313.)
The intention and wishes of the testator, when clearly expressed in his will,
constitute the fixed law of interpretation, and all questions raised at the trial, relative
to its execution and fulfillment, must be settled in accordance therewith, following
the plain and literal meaning of the testators words, unless it clearly appears that his
intention was otherwise. (Vda. de Villanueva vs. Juico,4 SCRA 550.)
o0o

No. L-54919. May 30, 1984.

POLLY CAYETANO, petitioner, vs.HON. TOMAS T. LEONIDAS, in his capacity as

the Presiding Judge of Branch XXXVIII, Court of First Instance of Manila and
NENITA CAMPOS PAGUIA, respondents.
Succession; Due Process; Attorneys; There being a proper substitution of attorneys where
the Motion to Dismiss Opposition to reprobate of will was filed, trial judge acted properly in
hearing evidence ex parte on probate of will in question.We find no grave abuse of
discretion on the part of the respondent judge. No proof was adduced to support petitioners
contention that the motion to withdraw was secured through fraudulent means and that
Atty. Franco Loyola was not his counsel of record. The records show that after the filing of
the contested motion, the petitioner at a later date, filed a manifestation wherein he
confirmed that the Motion to Dismiss Opposition was his voluntary act and deed. Moreover,
at the time the motion was filed, the petitioners former counsel, Atty. Jose P. Lagrosa had
long withdrawn from the case and had been substituted by Atty. Franco Loyola who in turn
filed the motion. The present petitioner cannot, therefore, maintain that the old mans
attorney of record was Atty. Lagrosa at the time of filing the motion. Since the withdrawal
was in order, the respondent judge acted correctly in hearing the probate of the will exparte, there being no other opposition to the same.
Same; Where circumstances demand that intrinsic validity of testamentary provisions
be passed upon even before the extrinsic validity of will is resolved, probate court should meet
the issue.The third issue raised deals with the validity of the provisions of the will. As a
general rule, the probate courts authority is limited only to the extrinsic validity of the will,
the due execution thereof, the testatrixs testamentary capacity and the compliance with
the requisites or solemnities prescribed by law. The intrinsic validity of the will normally
comes only after the court has declared that the will has been duly authenticated. However,
where practical considerations demand that the intrinsic validity of the will be passed upon,
even before it is probated, the court should meet the issue. (Maninang v. Court of Appeals,
114 SCRA 478).
Same; The U.S. law on succession in the state of Pennsylvania applies to the intrinsic
and extrinsic validity of the last will and testament of a U.S. national and resident of
Pennsylvania under whose laws a person may give his entire estate to a complete stranger.
Although on its face, the will appeared to have preterited the petitioner and thus, the
respondent judge should have denied its reprobate outright, the private respondents have
sufficiently established that Adoracion was, at the time of her death, an American citizen

and a permanent resident of Philadelphia, Pennsylvania, U.S.A. Therefore, under Article 16

par. (2) and 1039 of the Civil Code which respectively provide: x x x x the law which governs
Adoracion Campos will is the law of Pennsylvania, U.S.A., which is the national law of the
decedent. Although the parties admit that the Pennsylvania law does not provide for
legitimes and that all the estate may be given away by the testatrix to a complete stranger,
the petitioner argues that such law should not apply because it would be contrary to the
sound and established public policy and would run counter to the specific provisions of
Philippine Law.
Same; Same.It is a settled rule that as regards the intrinsic validity of the provisions
of the will, as provided for by Article 16 (2) and 1039 of the Civil Code, the national law of
the decedent must apply. This was squarely applied in the case of Bellis v. Bellis (20 SCRA
358).
Motions; Due Process; There was no denial of due process as what the court repeatedly
set for hearing was the Petition for Relief, not the Motion to Vacate Order of Jan. 10, 1979.
As regards the alleged absence of notice of hearing for the petition for relief, the records will
bear the fact that what was repeatedly scheduled for hearing on separate dates until June
19, 1980 was the petitioners petition for relief and not his motion to vacate the order of
January 10, 1979. There is no reason why the petitioner should have been led to believe
otherwise. The court even admonished the petitioners failing to adduce evidence when his
petition for relief was repeatedly set for hearing. There was no denial of due process. The
fact that he requested for the future setting of the case for hearing x x x did not mean that
at the next hearing, the motion to vacate would be heard and given preference in lieu of the
petition for relief. Furthermore, such request should be embodied in a motion and not in a
mere notice of hearing.
Succession; Jurisdiction; Probate of Will of American citizen who left an estate in the
Philippines was properly filed in the City of Manila where estate is located. Therefore, the
settlement of the estate of Adoracion Campos was correctly filed with the Court of First
Instance of Manila where she had an estate since it was alleged and proven that Adoracion
at the time of her death was a citizen and permanent resident of Pennsylvania, United
States of America and not a usual resident of Cavite as alleged by the petitioner.
Moreover, petitioner is now estopped from questioning the jurisdiction of the probate court
in the petition for relief. It is a settled rule that a party cannot invoke the jurisdiction of a
court to secure affirmative relief, against his opponent and after failing to obtain such
relief, repudiate or question that same jurisdiction.

PETITION for review on certiorari the order of the Court of First Instance of
Manila, Br. XXXVIII. Leonidas, J.

The facts are stated in the opinion of the Court.

Ermelo P. Guzman for petitioner.
Armando Z. Gonzales for private respondent.
GUTIERREZ, JR., J.:
This is a petition for review on certiorari, seeking to annul the order of the
respondent judge of the Court of First Instance of Manila, Branch XXXVIII, which
admitted to and allowed the probate of the last will and testament of Adoracion C.
Campos, after an ex-parte presentation of evidence by herein private respondent.
On January 31, 1977, Adoracion C. Campos died, leaving her father, petitioner
Hermogenes Campos and her sisters, private respondent Nenita C. Paguia,
Remedios C. Lopez and Marieta C. Medina as the surviving heirs. As Hermogenes
Campos was the only compulsory heir, he executed an Affidavit of Adjudication
under Rule 74, Section I of the Rules of Court whereby he adjudicated unto himself
the ownership of the entire estate of the deceased Adoracion Campos.
Eleven months after, on November 25, 1977, Nenita C. Paguia filed a petition for
the reprobate of a will of the deceased, Adoracion Campos, which was allegedly
executed in the United States and for her appointment as administratrix of the
estate of the deceased testatrix.
In her petition, Nenita alleged that the testatrix was an American citizen at the
time of her death and was a permanent resident of 4633 Ditman Street,
Philadelphia, Pennsylvania, U.S.A.; that the testatrix died in Manila on January 31,
1977 while temporarily residing with her sister at 2167 Leveriza, Malate, Manila;
that during her lifetime, the testatrix made her last will and testament on July 10,
1975, according to the laws of Pennsylvania, U.S.A., nominating Wilfredo Barzaga of
New Jersey as executor; that after the testatrix death, her last will and testament
was presented, probated, allowed, and registered with the Registry of Wills at the
County of Philadelphia, U.S.A., that Clement L. McLaughlin, the administrator who
was appointed after Dr. Barzaga had declined and waived his appointment as
executor in favor of the former, is also a resident of Philadelphia, U.S.A., and that
therefore, there is an urgent need for the appointment of an administratrix to

administer and eventually distribute the properties of the estate located in the
Philippines.
On January 11, 1978, an opposition to the reprobate of the will was filed by
herein petitioner alleging among other things, that he has every reason to believe
that the will in question is a forgery; that the intrinsic provisions of the will are null
and void; and that even if pertinent American laws on intrinsic provisions are
invoked, the same could not apply inasmuch as they would work injustice and injury
to him.
On December 1, 1978, however, the petitioner through his counsel, Atty. Franco
Loyola, filed a Motion to Dismiss Opposition (With Waiver of Rights or Interests)
stating that he has been able to verify the veracity thereof (of the will) and now
confirms the same to be truly the probated will of his daughter Adoracion. Hence,
an ex-parte presentation of evidence for the reprobate of the questioned will was
made.
On January 10, 1979, the respondent judge issued an order, to wit:
At the hearing, it has been satisfactorily established that Adoracion C. Campos, in her
lifetime, was a citizen of the United States of America with a permanent residence at 4633
Ditman Street, Philadelphia, PA 19124, (Exhibit D); that when alive, Adoracion C. Campos
executed a Last Will and Testament in the county of Philadelphia, Pennsylvania, U.S.A.,
according to the laws thereat (Exhibits E-3 to E-3-b); that while in temporary sojourn in the
Philippines, Adoracion C. Campos died in the City of Manila (Exhibit C) leaving property
both in the Philippines and in the United States of America; that the Last Will and
Testament of the late Adoracion C. Campos was admitted and granted probate by the
Orphans Court Division of the Court of Common Pleas, the probate court of the
Commonwealth of Pennsylvania, County of Philadelphia, U.S.A., and letters of
administration were issued in favor of Clement J. McLaughlin, all in accordance with the
laws of the said foreign country on procedure and allowance of wills (Exhibits E to E-10);
and that the petitioner is not suffering from any disqualification which would render her
unfit as administratrix of the estate in the Philippines of the late Adoracion C. Campos.
WHEREFORE, the Last Will and Testament of the late Adoracion C. Campos is hereby
admitted to and allowed probate in the Philippines, and Nenita Campos Paguia is hereby
appointed Administratrix of the estate of said decedent; let Letters of Administration with
the Will annexed issue in favor of said Administratrix upon her filing of a bond in the

amount of P5,000.00 conditioned under the provisions of Section I, Rule 81 of the Rules of
Court.
Another manifestation was filed by the petitioner on April 14, 1979, confirming the
withdrawal of his opposition, acknowledging the same to be his voluntary act and deed.

On May 25, 1979, Hermogenes Campos filed a petition for relief, praying that the
order allowing the will be set aside on the ground that the withdrawal of his
opposition to the same was secured through fraudulent means. According to him,
the Motion to Dismiss Opposition was inserted among the papers which he signed
in connection with two Deeds of Conditional Sales which he executed with the
Construction and Development Corporation of the Philippines (CDCP). He also
alleged that the lawyer who filed the withdrawal of the opposition was not his
counsel-of-record in the special proceedings case.
The petition for relief was set for hearing but the petitioner failed to appear. He
made several motions for postponement until the hearing was set on May 29, 1980.
On May 18, 1980, petitioner filed another motion entitled Motion to Vacate and/or
Set Aside the Order of January 10, 1979, and/or dismiss the case for lack of
jurisdiction. In this motion, the notice of hearing provided:
Please include this motion in your calendar for hearing on May 29, 1980 at 8:30 in the
morning for submission for reconsideration and resolution of the Honorable Court. Until
this Motion is resolved, may I also request for the future setting of the case for hearing on
the Oppositors motion to set aside previously filed.

The hearing of May 29, 1980 was re-set by the court for June 19, 1980. When the
case was called for hearing on this date, the counsel for petitioner tried to argue his
motion to vacate instead of adducing evidence in support of the petition for relief.
Thus, the respondent judge issued an order dismissing the petition for relief for
failure to present evidence in support thereof. Petitioner filed a motion for
reconsideration but the same was denied. In the same order, respondent judge also
denied the motion to vacate for lack of merit. Hence, this petition.
Meanwhile, on June 6, 1982, petitioner Hermogenes Campos died and left a will,
which, incidentally has been questioned by the respondent, his children and forced
heirs as, on its face, patently null and void, and a fabrication, appointing Polly

Cayetano as the executrix of his last will and testament. Cayetano, therefore, filed a
motion to substitute herself as petitioner in the instant case which was granted by
the court on September 13, 1982.
A motion to dismiss the petition on the ground that the rights of the petitioner
Hermogenes Campos merged upon his death with the rights of the respondent and
her sisters, only remaining children and forced heirs was denied on September 12,
1983.
Petitioner Cayetano persists with the allegations that the respondent judge acted
without or in excess of his jurisdiction when:
1. 1)He ruled the petitioner lost his standing in court deprived the Right to Notice (sic)

upon the filing of the Motion to Dismiss opposition with waiver of rights or
interests against the estate of deceased Adoracion C. Campos, thus, paving the way
for the ex-parte hearing of the petition for the probate of decedent will.

1. 2)He ruled that petitioner can waive, renounce or repudiate (not made in a public or
authenticated instrument), or by way of a petition presented to the court but by
way of a motion presented prior to an order for the distribution of the estatethe
law especially providing that repudiation of an inheritance must be presented,
within 30 days after it has issued an order for the distribution of the estate in
accordance with the rules of Court.
2. 3)He ruled that the right of a forced heir to his legitime can be divested by a decree
admitting a will to probate in which no provision is made for the forced heir in
complete disregard of Law of Succession.
3. 4)He denied petitioners petition for Relief on the ground that no evidence was
adduced to support the Petition for Relief when no Notice nor hearing was set to
afford petitioner to prove the merit of his petitiona denial of the due process and
a grave abuse of discretion amounting to lack of jurisdiction.
4. 5)He acquired no jurisdiction over the testate case, the fact that the Testator at the
time of death was a usual resident of Dasmarias, Cavite, consequently Cavite
Court of First Instance has exclusive jurisdiction over the case (De Borja vs.
Tan, G.R. No. L-7792, July 1955).

The first two issues raised by the petitioner are anchored on the allegation that the
respondent judge acted with grave abuse of discretion when he allowed the
withdrawal of the petitioners opposition to the reprobate of the will.
We find no grave abuse of discretion on the part of the respondent judge. No proof
was adduced to support petitioners contention that the motion to withdraw was
secured through fraudulent means and that Atty. Franco Loyola was not his counsel
of record. The records show that after the filing of the contested motion, the
petitioner at a later date, filed a manifestation wherein he confirmed that the
Motion to Dismiss Opposition was his voluntary act and deed. Moreover, at the time
the motion was filed, the petitioners former counsel, Atty. Jose P. Lagrosa had long
withdrawn from the case and had been substituted by Atty. Franco Loyola who in
turn filed the motion. The present petitioner cannot, therefore, maintain that the
old mans attorney of record was Atty. Lagrosa at the time of filing the motion. Since
the withdrawal was in order, the respondent judge acted correctly in hearing the
probate of the will ex-parte, there being no other opposition to the same.
The third issue raised deals with the validity of the provisions of the will. As a
general rule, the probate courts authority is limited only to the extrinsic validity of
the will, the due execution thereof, the testatrixs testamentary capacity and the
compliance with the requisites or solemnities prescribed by law. The intrinsic
validity of the will normally comes only after the court has declared that the will
has been duly authenticated. However, where practical considerations demand that
the intrinsic validity of the will be passed upon, even before it is probated, the court
should meet the issue. (Maninang v. Court of Appeals, 114 SCRA 478).
In the case at bar, the petitioner maintains that since the respondent judge
allowed the reprobate of Adoracions will, Hermogenes C. Campos was divested of
his legitime which was reserved by the law for him.
This contention is without merit.
Although on its face, the will appeared to have preterited the petitioner and thus,
the respondent judge should have denied its reprobate outright, the private
respondents have sufficiently established that Adoracion was, at the time of her
death, an American citizen and a permanent resident of Philadelphia,

Pennsylvania, U.S.A. Therefore, under Article 16 par. (2) and 1039 of the Civil Code
which respectively provide:
Art. 16 par. (2).
xxx

xxx

xxx

However, intestate and testamentary successions, both with respect to the order of
succession and to the amount of successional rights and to the intrinsic validity of
testamentary provisions, shall be regulated by the national law of the person whose
succession is under consideration, whatever may be the nature of the property and
regardless of the country wherein said property may be found.
Capacity to succeed is governed by the law of the nation of the decedent.

the law which governs Adoracion Campos will is the law of Pennsylvania, U.S.A.,
which is the national law of the decedent. Although the parties admit that the
Pennsylvania law does not provide for legitimes and that all the estate may be given
away by the testatrix to a complete stranger, the petitioner argues that such law
should not apply because it would be contrary to the sound and established public
policy and would run counter to the specific provisions of Philippine Law.
It is a settled rule that as regards the intrinsic validity of the provisions of the
will, as provided for by Article 16 (2) and 1039 of the Civil Code, the national law of
the decedent must apply. This was squarely applied in the case of Bellis v. Bellis (20
SCRA 358) wherein we ruled:
It is therefore evident that whatever public policy or good customs may be involved in our
system of legitimes, Congress has not intended to extend the same to the succession of
foreign nationals. For it has specifically chosen to leave, inter alia, the amount of
successional rights, to the decedents national law. Specific provisions must prevail over
general ones.
xxx

xxx

xxx

The parties admit that the decedent, Amos G. Bellis, was a citizen of the State of Texas,
U.S.A., and under the law of Texas, there are no forced heirs or legitimes. Accordingly, since
the intrinsic validity of the provision of the will and the amount of successional rights are to
be determined under Texas law, the Philippine Law on legitimes cannot be applied to the
testacy of Amos G. Bellis.

As regards the alleged absence of notice of hearing for the petition for relief, the
records will bear the fact that what was repeatedly scheduled for hearing on
separate dates until June 19, 1980 was the petitioners petition for relief and not his
motion to vacate the order of January 10, 1979. There is no reason why the
petitioner should have been led to believe otherwise. The court even admonished the
petitioners failing to adduce evidence when his petition for relief was repeatedly set
for hearing. There was no denial of due process. The fact that he requested for the
future setting of the case for hearing x x x did not mean that at the next hearing,
the motion to vacate would be heard and given preference in lieu of the petition for
relief. Furthermore, such request should be embodied in a motion and not in a mere
notice of hearing.
Finally, we find the contention of the petition as to the issue of jurisdiction utterly
devoid of merit. Under Rule 73, Section 1, of the Rules of Court, it is provided that:
SECTION 1. Where estate of deceased persons settled.If the decedent is an inhabitant of the Philippines at the
time of his death, whether a citizen or an alien, his will shall be proved, or letters of administration granted, and
his estate settled, in the Court of First Instance in the province in which he resided at the time of his death, and
if he is an inhabitant of a foreign country, the Court of First Instance of any province in which he had estate.
The court first taking cognizance of the settlement of the estate of a decedent, shall exercise jurisdiction to the
exclusion of all other courts. The jurisdiction assumed by a court, so far as it depends on the place of residence of
the decedent, or of the location of his estate, shall not be contested in a suit or proceeding, except in an appeal
from that court, in the original case, or when the want of jurisdiction appears on the record.

Therefore, the settlement of the estate of Adoracion Campos was correctly filed with the Court of
First Instance of Manila where she had an estate since it was alleged and proven that Adoracion at
the time of her death was a citizen and permanent resident of Pennsylvania, United States of
America and not a usual resident of Cavite as alleged by the petitioner. Moreover, petitioner is now
estopped from questioning the jurisdiction of the probate court in the petition for relief. It is a settled
rule that a party cannot invoke the jurisdiction of a court to secure affirmative relief, against his
opponent and after failing to obtain such relief, repudiate or question that same jurisdiction.
(See Saulog Transit, Inc. v. Hon. Manuel Lazaro, et al., G.R. No. 63284, April 4, 1984).
WHEREFORE, the petition for certiorari and prohibition is hereby dismissed for lack of merit.
SO ORDERED.
Melencio-Herrera, Plana, Relovaand De la Fuente, JJ., concur.

Teehankee, J., (Chairman), no part.

Petition dismissed.
Notes.For petition for certiorari to prosper, the grave abuse of discretion committed by the
Tribunal must be shown. (Ignacio vs. Court of Appeals, 96 SCRA 648.)
For certiorari to lie there must be a capricious, arbitrary and whimsical exercise of power, the
very antithesis of the judicial prerogative in accordance with centuries of both civil law and common
law tradition. (People vs. Vallarta, 77 SCRA 476.)
Disregard of available facts by a judge constitutes grave abuse of discretion. (Commissioner of
Customs vs. Geronimo,80 SCRA 74.)

No. L-41171. July 23, 1987.

INTESTATE ESTATE OF THE LATE VITO BORROMEO, PATROCINIO

BORROMEO-HERRERA, petitioner, vs.FORTUNATO BORROMEO and HON.
FRANCISCO P. BURGOS, Judge of the Court of First Instance of Cebu, Branch II,
respondents.
No. L-55000. July 23, 1987.

IN THE MATTER OF THE ESTATE OF VITO BORROMEO, DECEASED, PILAR

N. BORROMEO, MARIA B. PUTONG, FEDERICO V. BORROMEO, JOSE
BORROMEO, CONSUELO B. MORALES, AND CANUTO V. BORROMEO, JR.,
heirs-appellants, vs.FORTUNATO BORROMEO, claimant-appellee.
No. L-62895. July 23, 1987.

JOSE CUENCO BORROMEO, petitioner, vs. HONORABLE COURT OF APPEALS,

HON. FRANCISCO P. BURGOS, As presiding Judge of the (now) Regional Trial
Court, Branch XV, Region VII, RICARDO V. REYES, as Administrator of the Estate
of Vito Borromeo in Sp. Proc. No. 916-R, NUMERIANO G. ESTENZO and
DOMINGO L. ANTIGUA, respondents.
No. L-63818. July 23, 1987.

DOMINGO ANTIGUA AND RICARDO V. REYES, as Administrator of the Intestate

Estate of VITO BORROMEO, Sp. Proc. No. 916-R, Regional Trial Court of Cebu,
joined by HON. JUDGE FRANCISCO P. BURGOS, as Presiding Judge of Branch
XV of the Regional Trial Court of Cebu, as a formal party, and ATTYS. FRANCIS
M.
ZOSA,
GAUDIOSO
RUIZ
and
NUMERIANO
ESTENZO,
petitioners, vs.HONORABLE INTERMEDIATE APPELLATE COURT, JOSE
CUENCO BORROMEO, and PETRA O. BORROMEO, respondents.
No. L-65995. July 23, 1987.
PETRA BORROMEO, VITALIANA BORROMEO, AMELINDA BORROMEO, and
JOSE CUENCO BORROMEO, petitioners, vs. HONORABLE FRANCISCO P.
BURGOS, Presiding Judge of Branch XV, Regional Trial Court of Cebu; RICARDO
V. REYES, Administrator of the Estate of VITO BORROMEO in Sp. Proc. No. 916R; and DOMINGO L. ANTIGUA, respondents.
Civil Law; Succession; Heirs acquire a right to succession from the moment of the death
of the deceased.The prevailing jurisprudence on waiver of hereditary rights is that "the
properties included in an existing inheritance cannot be considered as belonging to third
persons with respect to the heirs, who by fiction of law continue the personality of the
former. Nor do such properties have the character of future property, because the heirs
acquire a right to succession from the moment of the death of the deceased, by principle
established in article 657 and applied by article 661 of the Civil Code, according to which
the heirs succeed the deceased by the mere fact of death. More or less, time may elapse from
the moment of the death of the deceased until the heirs enter into possession of the
hereditary property, but the acceptance in any event retro acts to the moment of the death,
in accordance with article 989 of the Civil Code. The right is vested, although conditioned
upon the adjudication of the corresponding hereditary portion." (Osorio v. Osorio and
Ynchausti Steamship Co., 41 Phil., 531). The heirs, therefore, could waive their hereditary
rights in 1967 even if the order to partition the estate was issued only in 1969.
Same; Same; Waiver of hereditary rights, requisites.In this case, however, the
purported "Waiver of Hereditary Rights" cannot be considered to be effective. For a waiver
to exist, three elements are essential: (1) the existence of a right; (2) the knowledge of the
existence thereof; and (3) an intention to relinquish such right. (People v. Salvador, (CA) 53
O.G. No. 22, p. 8116, 8120). The intention to waive a right or advantage must be shown
clearly and convincingly, and when the only proof of intention rests in what a party does, his
act should be so manifestly consistent with, and indicative of an intent to, voluntarily

relinquish the particular right or advantage that no other reasonable explanation of his
conduct is possible.
Jurisdiction; Trial Court has jurisdiction to pass upon the validity of the waiver
agreement.With respect to the issue of jurisdiction, we hold that the trial court had
jurisdiction to pass upon the validity of the waiver agreement. It must be noted that in
Special Proceedings No. 916-R the lower court disallowed the probate of the will and
declared it as fake. Upon appeal, this Court affirmed the decision of the lower court on
March 30, 1967, in G.R. No. L-18498. Subsequently, several parties came before the lower
court filing claims or petitions alleging themselves as heirs of the intestate estate of Vito
Borromeo. We see no impediment to the trial court in exercising jurisdiction and trying the
said claims or petitions. Moreover, the jurisdiction of the trial court extends to matters
incidental and collateral to the exercise of its recognized powers in handling the settlement
of the estate.
Legal and Judicial Ethics; Judges;Suspicion of partiality on the part of a trial judge
must be avoided at all costs.The allegations of the private respondents in their motion for
inhibition, more specifically, the insistence of the trial judge to sell the entire estate at
P6,700,000.00, where 4/9 group of heirs objected, cannot easily be ignored. Suspicion of
partiality on the part of a trial judge must be avoided at all costs. In the case of Bautista v.
Rebueno (81 SCRA 535), this Court stated: "x x x The Judge must maintain and preserve
the trust and faith of the parties litigants. He must hold himself above reproach and
suspicion. At the very first sign of lack of faith and trust to his actions, whether well
grounded or not, the Judge has no other alternative but inhibit himself from the case. A
judge may not be legally prohibited from sitting in a litigation, but when circumstances
appear that will induce doubt to his honest actuations and probity in favor of either party,
or incite such state of mind, he should conduct a careful self-examination. He should
exercise his discretion in a way that the people's faith in the Courts of Justice is not
impaired. The better course for the Judge under such circumstances is to disqualify himself.
That way, he avoids being misunderstood, his reputation for probity and objectivity is
preserved. What is more important, the ideal of impartial administration of justice is lived
up to."

PETITION to review the order of the Court of First Instance of Cebu, Br. II. Burgos,
J.
The facts are stated in the opinion of the Court.
GUTIERREZ, JR., J.:

These cases before us all stem from SP. PROC. NO. 916-R of the then Court of First
Instance of Cebu.
G.R. No. 41171
Vito Borromeo, a widower and permanent resident of Cebu City, died on March 13,
1952, in Paraaque, Rizal at the age of 88 years, without forced heirs but leaving
extensive properties in the province of Cebu.
On April 19, 1952, Jose Junquera filed with the Court of First Instance of Cebu a
petition for the probate of a one page document as the last will and testament left by
the said deceased, devising all his properties to Tomas, Fortunato and Amelia, all
surnamed Borromeo, in equal and undivided shares, and designating Junquera as
executor thereof. The case was docketed as Special Proceedings No. 916-R. The
document, drafted in Spanish, was allegedly signed and thumbmarked by the
deceased in the presence of Cornelio Gandionco, Eusebio Cabiluna, and Felixberto
Leonardo who acted as witnesses.
Oppositions to the probate of the will were filed. On May 28, 1960, after due trial,
the probate court held that the document presented as the will of the deceased was
a forgery. On appeal to this Court, the decision of the probate court disallowing the
probate of the will was affirmed in Testate Estate of Vito Borromeo, Jose H.
Junquera, et al. v. Crispin Borromeo, et al. (19 SCRA 656).
The testate proceedings was converted into an intestate proceedings. Several
parties came before the court filing claims or petitions alleging themselves as heirs
of the intestate estate of Vito Borromeo.
The following petitions or claims were filed:
1. 1.On August 29, 1967, the heirs of Jose Ma. Borromeo and Cosme Borromeo filed a
petition for declaration of heirs and determination of heirship. There was no
opposition filed against said petition.
2. 2.On November 26, 1967, Vitaliana Borromeo also filed a petition for declaration as
heir. The heirs of Jose Ma. Borromeo and Cosme Borromeo filed an opposition to
this petition.

3. 3.On December 13, 1967, Jose Barcenilla, Jr., Anecita Ocampo de Castro, Ramon
Ocampo, Lourdes Ocampo, Elena Ocampo, Isagani Morre, Rosario Morre, Aurora
Morre, Lila Morre, Lamberto Morre, and Patricia Morre, filed a petition for
declaration of heirs and determination of shares. The petition was opposed by the
heirs of Jose and Cosme Borromeo.
4. 4.On December 2, 1968, Maria Borromeo Atega, Luz Borromeo, Hermenegilda
Borromeo Nonnenkamp, Rosario Borromeo, and Fe Borromeo Queroz filed a claim.
Jose Cuenco Borromeo, Crispin Borromeo, Vitaliana Borromeo and the heirs of
Carlos Borromeo represented by Jose Talam filed oppositions to this claim.

When the aforementioned petitions and claims were heard jointly, the following
facts were established:
1. Maximo Borromeo and Hermenegilda Galan, husband and wife (the latter
having predeceased the former), were survived by their eight (8) children, namely,

Jose Ma. Borromeo

Cosme Borromeo
Pantaleon Borromeo
Vito Borromeo
Paulo Borromeo
Anecita Borromeo
Quirino Borromeo and
Julian Borromeo

2. Vito Borromeo died a widower on March 13, 1952, without any issue, and all his
brothers and sisters predeceased him.
3. Vito's brother Pantaleon Borromeo died leaving the following children:
1. a.Ismaela Borromeo, who died on Oct. 16, 1939
2. b.Teofilo Borromeo, who died on Aug. 1, 1955, or 3 years after the death of Vito
Borromeo. He was married to Remedios Cuenco Borromeo, who died on March 28,
1968. He had an only sonAtty. Jose Cuenco Borromeo one of the petitioners
herein.
3. c.Crispin Borromeo, who is still alive.

4. Aniceta Borromeo, sister of Vito Borromeo, died ahead of him and left an only
daughter, Aurora B. Ocampo, who died on Jan. 30, 1950 leaving the following
children:
1. a.Aniceta Ocampo Castro
2. b.Ramon Ocampo
3. c.Lourdes Ocampo
4. d.Elena Ocampo, all living, and
5. e.Antonieta Ocampo Barcenilla (deceased), survived by claimant Jose Barcenilla, Jr.

5. Cosme Borromeo, another brother of Vito Borromeo, died before the war and left
the following children:
1. a.Marcial Borromeo
2. b.Carlos Borromeo, who died on Jan. 18, 1965, survived by his wife, Remedios
Alfonso, and his only daughter, Amelinda Borromeo Talam.
3. c.Asuncion Borromeo
4. d.Florentina Borromeo, who died in 1948.
5. e.Amilio Borromeo, who died in 1944.

6. f.Carmen Borromeo, who died in 1925.

The last three died leaving no issue.

6. Jose Ma. Borromeo, another brother of Vito Borromeo, died before the war and
left the following children:
1. a.Exequiel Borromeo, who died on December 29,1949
2. b.Canuto Borromeo, who died on Dec. 31, 1959, leaving the following children:
1. aa.Federico Borromeo

1. bb.Marisol Borromeo (Maria B. Putong, Rec. p. 85)

2. cc.Canuto Borromeo, Jr.
3. dd.Jose Borromeo
4. ee.Consuelo Borromeo
5. ff.Pilar Borromeo
6. gg.Salud Borromeo
7. hh.Patrocinio Borromeo Herrera
1. c.Maximo Borromeo, who died in July, 1948
2. d.Matilde Borromeo, who died on Aug. 6,1946
3. e.Andres Borromeo, who died on Jan. 3, 1923, but survived by his children:
1. aa.Maria Borromeo Atega
2. bb.Luz Borromeo
3. cc.Hermenegilda Borromeo Nonnenkamp
4. dd.Rosario Borromeo
5. ee.Fe Borromeo Queroz

On April 10, 1969, the trial court, invoking Art. 972 of the Civil Code, issued an
order declaring the following, to the exclusion of all others, as the intestate heirs of
the deceased Vito Borromeo:
1. 1.Jose Cuenco Borromeo
2. 2.Judge Crispin Borromeo
3. 3.Vitaliana Borromeo
4. 4.Patrocinio Borromeo Herrera
5. 5.Salud Borromeo
6. 6.Asuncion Borromeo
7. 7.Marcial Borromeo
8. 8.Amelinda Borromeo de Talam, and
9. 9.The heirs of Canuto Borromeo

The court also ordered that the assets of the intestate estate of Vito Borromeo shall
be divided into 4/9 and 5/9 groups and distributed in equal and equitable shares
among the 9 abovenamed declared intestate heirs.
On April 21 and 30, 1969, the declared heirs, with the exception of Patrocinio B.
Herrera, signed an agreement of partition of the properties of the deceased Vito
Borromeo which was approved by the trial court, in its order of August 15, 1969. In
this same order, the trial court ordered the administrator, Atty. Jesus Gaboya, Jr., to
partition the properties of the deceased in the way and manner they are divided and
partitioned in the said Agreement of Partition and further ordered that 40% of the
market value of the 4/9 and 5/9 of the estate shall be segregated. All attorney's fees
shall be taken and paid from this segregated portion.
On August 25, 1972, respondent Fortunato Borromeo, who had earlier claimed as
heir under the forged will, filed a motion before the trial court praying that he be
declared as one of the heirs of the deceased Vito Borromeo, alleging that he is an
illegitimate son of the deceased and that in the declaration of heirs made by the
trial court, he was omitted, in disregard of the law making him a forced heir entitled

to receive a legitime like all other forced heirs. As an acknowledged illegitimate

child, he stated that he was entitled to a legitime equal in every case to four-fifths of
the legitime of an acknowledged natural child.
Finding that the motion of Fortunato Borromeo was already barred by the order
of the court dated April 12, 1969 declaring the persons named therein as the legal
heirs of the deceased Vito Borromeo, the court dismissed the motion on June 25,
1973.
Fortunato Borromeo filed a motion for reconsideration. In the memorandum he
submitted to support his motion for reconsideration, Fortunato changed the basis
for his claim to a portion of the estate. He asserted and incorporated a Waiver of
Hereditary Rights dated July 31, 1967, supposedly signed by Pilar N. Borromeo,
Maria B. Putong, Jose Borromeo, Canuto V. Borromeo, Jr., Salud Borromeo,
Patrocinio BorromeoHerrera, Marcial Borromeo, Asuncion Borromeo, Federico V.
Borromeo, Consuelo B. Morales, Remedios Alfonso and Amelinda B. Talam. In the
waiver, five of the nine heirs relinquished to Fortunato their shares in the disputed
estate. The motion was opposed on the ground that the trial court, acting as a
probate court, had no jurisdiction to take cognizance of the claim; that respondent
Fortunato Borromeo is estopped from asserting the waiver agreement; that the
waiver agreement is void as it was executed before the declaration of heirs; that the
same is void having been executed before the distribution of the estate and before
the acceptance of the inheritance; and that it is void ab initio and inexistent for lack
of subject matter.
On December 24, 1974, after due hearing, the trial court concluding that the five
declared heirs who signed the waiver agreement assigning their hereditary rights to
Fortunato Borromeo had lost the same rights, declared the latter as entitled to 5/9
of the estate of Vito Borromeo.
A motion for reconsideration of this order was denied on July 7, 1975.
In the present petition, the petitioner seeks to annul and set aside the trial
court's order dated December 24, 1974, declaring respondent Fortunato Borromeo
entitled to 5/9 of the estate of Vito Borromeo and the July 7, 1975 order, denying the
motion f or reconsideration.

The petitioner argues that the trial court had no jurisdiction to take cognizance
of the claim of respondent Fortunato Borromeo because it is not a money claim
against the decedent but a claim for properties, real and personal, which constitute
all of the shares of the heirs in the decedent's estate, heirs who allegedly waived
their rights in his favor. The claim of the private respondent under the waiver
agreement, according to the petitioner, may be likened to that of a creditor of the
heirs which is improper. He alleges that the claim of the private respondent under
the waiver agreement was filed beyond the time allowed for filing of claims as it was
filed only sometime in 1973, after there had been a declaration of heirs (April 10,
1969), an agreement of partition (April 30, 1969), the approval of the agreement of
partition and an order directing the administrator to partition the estate (August
15, 1969), when in a mere memorandum, the existence of the waiver agreement was
brought out.
It is further argued by the petitioner that the document entitled "Waiver of
Hereditary Rights" executed on July 31, 1967, aside from having been cancelled and
revoked on June 29, 1968, by Tomas L. Borromeo, Fortunato Borromeo and Amelia
Borromeo, is without force and effect because there can be no effective waiver of
hereditary rights before there has been a valid acceptance of the inheritance the
heirs intend to transfer. Pursuant to Article 1043 of the Civil Code, to make
acceptance or repudiation of inheritance valid, the person must be certain of the
death of the one from whom he is to inherit and of his right to the inheritance. Since
the petitioner and her co-heirs were not certain of their right to the inheritance
until they were declared heirs, their rights were, therefore, uncertain. This view,
according to the petitioner, is also supported by Article 1057 of the same Code which
directs heirs, devisees, and legatees to signify their acceptance or repudiation
within thirty days after the court has issued an order for the distribution of the
estate.
Respondent Fortunato Borromeo on the other hand, contends that under Article
1043 of the Civil Code there is no need for a person to be first declared as heir before
he can accept or repudiate an inheritance. What is required is that he must first be
certain of the death of the person from whom he is to inherit and that he must be
certain of his right to the inheritance. He points out that at the time of the signing
of the waiver document on July 31, 1967, the signatories to the waiver document
were certain that Vito Borromeo was already dead as well as of their rights to the
inheritance as shown in the waiver document itself.

With respect to the issue of jurisdiction of the trial court to pass upon the validity
of the waiver of hereditary rights, respondent Borromeo asserts that since the
waiver or renunciation of hereditary rights took place after the court assumed
jurisdiction over the properties of the estate it partakes of the nature of a partition
of the properties of the estate needing approval of the court because it was executed
in the course of the proceedings. He further maintains that the probate court loses
jurisdiction of the estate only after the payment of all the debts of the estate and the
remaining estate is distributed to those entitled to the same.
The prevailing jurisprudence on waiver of hereditary rights is that "the
properties included in an existing inheritance cannot be considered as belonging to
third persons with respect to the heirs, who by fiction of law continue the
personality of the former. Nor do such properties have the character of future
property, because the heirs acquire a right to succession from the moment of the
death of the deceased, by principle established in article 657 and applied by article
661 of the Civil Code, according to which the heirs succeed the deceased by the mere
fact of death. More or less, time may elapse from the moment of the death of the
deceased until the heirs enter into possession of the hereditary property, but the
acceptance in any event retro acts to the moment of the death, in accordance with
article 989 of the Civil Code. The right is vested, although conditioned upon the
adjudication of the corresponding hereditary portion." (Osorio v. Osorio and
Ynchausti Steamship Co., 41 Phil., 531). The heirs, therefore, could waive their
hereditary rights in 1967 even if the order to partition the estate was issued only in
1969.
In this case, however, the purported "Waiver of Hereditary Rights" cannot be
considered to be effective. For a waiver to exist, three elements are essential: (1) the
existence of a right; (2) the knowledge of the existence thereof; and (3) an intention
to relinquish such right. (People v. Salvador, (CA) 53 O.G. No. 22, p. 8116, 8120).
The intention to waive a right or advantage must be shown clearly and convincingly,
and when the only proof of intention rests in what a party does, his act should be so
manifestly consistent with, and indicative of an intent to, voluntarily relinquish the
particular right or advantage that no other reasonable explanation of his conduct is
possible (67 C.J., 311). (Fernandez v. Sebido, et al., 70 Phil., 151, 159).
The circumstances of this case show that the signatories to the waiver document
did not have the clear and convincing intention to relinquish their rights. Thus: (1)

On October 27, 1967, Fortunato, Tomas, and Amelia Borromeo filed a pleading
entitled "Compliance" wherein they submitted a proposal for the amicable
settlement of the case. In that Compliance, they proposed to concede to all the eight
(8) intestate heirs of Vito Borromeo all properties, personal and real, including all
cash and sums of money in the hands of the Special Administrator, as of October 31,
1967, not contested or claimed by them in any action then pending in the Court of
First Instance of Cebu. In turn, the heirs would waive and concede to them all the
14 contested lots. In this document, the respondent recognizes and concedes that the
petitioner, like the other signatories to the waiver document, is an heir of the
deceased Vito Borromeo, entitled to share in the estate. This shows that the "Waiver
of Hereditary Rights" was never meant to be what the respondent now purports it to
be. Had the intent been otherwise, there would not be any reason for Fortunato,
Tomas, and Amelia Borromeo to mention the heirs in the offer to settle the case
amicably, and offer to concede to them parts of the estate of the deceased; (2) On
April 21 and 30, 1969, the majority of the declared heirs executed an Agreement on
how the estate they inherited shall be distributed. This Agreement of Partition was
approved by the trial court on August 15, 1969; (3) On June 29, 1968, the petitioner,
among others, signed a document entitled Deed of Assignment" purporting to
transfer and assign in favor of the respondent and Tomas and Amelia Borromeo all
her (Patrocinio B. Herrera's) rights, interests, and participation as an intestate heir
in the estate of the deceased Vito Borromeo. The stated consideration for said
assignment was P100,000.00; (4) On the same date, June 29, 1968, the respondent
Tomas, and Amelia Borromeo (assignees in the aforementioned deed of assignment)
in turn executed a "Deed of Reconveyance" in favor of the heirs-assignors named in
the same deed of assignment. The stated consideration was P50,000.00; (5) A
Cancellation of Deed of Assignment and Deed of Reconveyance was signed by Tomas
Borromeo and Amelia Borromeo on October 15, 1968, while Fortunato Borromeo
signed this document on March 24, 1969.
With respect to the issue of jurisdiction, we hold that the trial court had
jurisdiction to pass upon the validity of the waiver agreement. It must be noted that
in Special Proceedings No. 916-R the lower court disallowed the probate of the will
and declared it as fake. Upon appeal, this Court affirmed the decision of the lower
court on March 30, 1967, in G.R. No. L-18498. Subsequently, several parties came
before the lower court filing claims or petitions alleging themselves as heirs of the
intestate estate of Vito Borromeo. We see no impediment to the trial court in
exercising jurisdiction and trying the said claims or petitions. Moreover, the

jurisdiction of the trial court extends to matters incidental and collateral to the
exercise of its recognized powers in handling the settlement of the estate.
In view of the foregoing, the questioned order of the trial court dated December
24, 1974, is hereby SET ASIDE.
G.R. No. 55000
This case was originally an appeal to the Court of Appeals from an order of the
Court of First Instance of Cebu, Branch II, dated December 24, 1974, declaring the
waiver document earlier discussed inG.R. No. 41171 valid. The appellate court
certified this case to this Court as the questions raised are all of law.
The appellants not only assail the validity of the waiver agreement but they also
question the jurisdiction of the lower court to hear and decide the action filed by
claimant Fortunato Borromeo.
The appellants argue that when the waiver of hereditary right was executed on
July 31, 1967, Pilar Borromeo and her children did not yet possess or own any
hereditary right in the intestate estate of the deceased Vito Borromeo because said
hereditary right was only acquired and owned by them on April 10,1969, when the
estate was ordered distributed. They further argue that in contemplation of law,
there is no such contract of waiver of hereditary right in the present case because
there was no object, which is hereditary right, that could be the subject matter of
said waiver, and, therefore, said waiver of hereditary right was not only null and
void ab initio but was inexistent.
With respect to the issue of jurisdiction, the appellants contend that without any
formal pleading filed by the lawyers of Fortunato Borromeo for the approval of the
waiver agreement and without notice to the parties concerned, two things which are
necessary so that the lower court would be vested with authority and jurisdiction to
hear and decide the validity of said waiver agreement, nevertheless, the lower court
set the hearing on September 25, 1973 and without asking for the requisite
pleading. This resulted in the issuance of the appealed order of December 24, 1974,
which approved the validity of the waiver agreement. The appellants contend that
this constitutes an error in the exercise of jurisdiction.

The appellee on the other hand, maintains that by waiving their hereditary rights
in favor of Fortunato Borromeo, the signatories to the waiver document tacitly and
irrevocably accepted the inheritance and by virtue of the same act, they lost their
rights because the rights from that moment on became vested in Fortunato
Borromeo.
It is also argued by the appellee that under Article 1043 of the Civil Code there is
no need for a person to be declared as heir first before he can accept or repudiate an
inheritance. What is required is that he is certain of the death of the person from
whom he is to inherit, and of his right to the inheritance. At the time of the signing
of the waiver document on July 31, 1967, the signatories to the waiver document
were certain that Vito Borromeo was already dead and they were also certain of
their right to the inheritance as shown by the waiver document itself.
On the allegation of the appellants that the lower court did not acquire
jurisdiction over the claim because of the alleged lack of a pleading invoking its
jurisdiction to decide the claim, the appellee asserts that on August 23, 1973, the
lower court issued an order specifically calling on all oppositors to the waiver
document to submit their comments within ten days from notice and setting the
same for hearing on September 25, 1973. The appellee also avers that the claim as
to a 5/9 share in the inheritance involves no question of title to property and,
therefore, the probate court can decide the question.
The issues in this case are similar to the issues raised in G.R. No. 41171. The
appellants in this case, who are all declared heirs of the late Vito Borromeo are
contesting the validity of the trial court's order dated December 24, 1974, declaring
Fortunato Borromeo entitled to 5/9 of the estate of Vito Borromeo under the waiver
agreement.
As stated in G.R. No. 41171, the supposed waiver of hereditary rights can not be
validated. The essential elements of a waiver, especially the clear and convincing
intention to relinquish hereditary rights, are not found in this case.
The October 27, 1967 proposal for an amicable settlement conceding to all the
eight (8) intestate heirs various properties in consideration for the heirs giving to
the respondent and to Tomas, and Amelia Borromeo the fourteen (14) contested lots

was filed inspite of the fact that on July 31, 1967, some of the heirs had allegedly
already waived or sold their hereditary rights to the respondent.
The agreement on how the estate is to be distributed, the June 29, 1968 deed of
assignment, the deed of reconveyance, and the subsequent cancellation of the deed
of assignment and deed of reconveyance all argue against the purported waiver of
hereditary rights.
Concerning the issue of jurisdiction, we have already stated in G.R. No.
41171that the trial court acquired jurisdiction to pass upon the validity of the
waiver agreement because the trial court's jurisdiction extends to matters
incidental and collateral to the exercise of its recognized powers in handling the
settlement of the estate.
The questioned order is, therefore, SET ASIDE.
G.R. No. 62895
A motion dated April 28, 1972, was filed by Atty. Raul M. Sesbreno, representative
of some of the heirs-distributees, praying for the immediate closure of Special
Proceeding No. 916-R. A similar motion dated May 29, 1979 was filed by Atty. Jose
Amadora. Both motions were grounded on the fact that there was nothing more to
be done after the payment of all the obligations of the estate since the order of
partition and distribution had long become final.
Alleging that respondent Judge Francisco P. Burgos failed or refused to resolve
the aforesaid motions, petitioner Jose Cuenco Borromeo filed a petition for
mandamus before the Court of Appeals to compel the respondent judge to terminate
and close Special Proceedings No. 916-R.
Finding that the inaction of the respondent judge was due to pending motions to
compel the petitioner, as co-administrator, to submit an inventory of the real
properties of the estate and an accounting of the cash in his hands, pending claims
for attorney's fees, and that mandamus will not lie to compel the performance of a
discretionary function, the appellate court denied the petition on May 14, 1982. The
petitioner's motion for reconsideration was likewise denied for lack of merit. Hence,
this petition.

The petitioner's stand is that the inaction of the respondent judge on the motion
filed on April 28, 1972 for the closure of the administration proceeding cannot be
justified by the filing of the motion for inventory and accounting because the latter
motion was filed only on March 2, 1979. He claimed that under the then
Constitution, it is the duty of the respondent judge to decide or resolve a case or
matter within three months from the date of its submission.
The respondents contend that the motion to close the administration had already
been resolved when the respondent judge cancelled all settings of all incidents
previously set in his court in an order dated June 4, 1979, pursuant to the
resolution and restraining order issued by the Court of Appeals enjoining him to
maintain status quo on the case.
As stated in G.R. No. 41171, on April 21 and 30, 1969, the declared heirs, with
the exception of Patrocinio B. Herrera, signed an agreement of partition of the
properties of the deceased Vito Borromeo which was approved by the trial court, in
its order dated August 15, 1969. In this same order, the trial court ordered the
administrator, Atty. Jesus Gaboya, Jr., to partition the properties of the deceased in
the way and manner they are divided and partitioned in the said Agreement of
Partition and further ordered that 40% of the market value of the 4/9 and 5/9 of the
estate shall be segregated and reserved for attorney's fees.
According to the manifestation of Judge Francisco Burgos dated July 5, 1982, (p.
197, Rollo, G.R. No. 41171) his court has not finally distributed to the nine (9)
declared heirs the properties due to the following circumstances:
1. 1.The court's determination of the market value of the estate in order to segregate
the 40% reserved for attorney's fees;
2. 2.The order of December 24, 1974, declaring Fortunato Borromeo as beneficiary of
the 5/9 of the estate because of the waiver agreement signed by the heirs
representing the 5/9 group which is still pending resolution by this Court (G.R. No.
41171);

3. 3.The refusal of administrator Jose Cuenco Borromeo to render his accounting; and
1. 4.The claim of Tarcela Villegas for 1/2 of the estate causing annotations of notices
of lis pendens on the different titles of the properties of the estate.

Since there are still real properties of the estate that were not yet distributed to
some of the declared heirs, particularly the 5/9 group of heirs due to the pending
resolution of the waiver agreement, this Court in its resolution of June 15, 1983,
required the judge of the Court of First Instance of Cebu, Branch II, to expedite the
determination of Special Proceedings No. 916-R and ordered the co-administrator
Jose Cuenco Borromeo to submit an inventory of real properties of the estate and to
render an accounting of cash and bank deposits realized from rents of several
properties.
The matter of attorney's fees shall be discussed in G.R. No. 65995.
Considering the pronouncements stated in:
1. 1.G.R. No. 41171 & G.R. No. 55000, setting aside the Order of the trial court dated
December 24, 1974;
2. 2.G.R. No. 63818, denying the petition for review seeking to modify the decision of
the Intermediate Appellate Court insofar as it disqualifies and inhibits Judge
Francisco P. Burgos from further hearing the Intestate Estate of Vito Borromeo
and ordering the remand of the case to the Executive Judge of the Regional Trial
Court of Cebu for re-raffling; and
3. 3.G.R. No. 65995, granting the petition to restrain the respondents from further
acting on any and all incidents in Special Proceedings No. 916-R because of the
affirmation of the decision of the Intermediate Appellate Court in G.R. No. 63818."
the trial court may now terminate and close Special Proceedings No. 916-R, subject
to the submission of an inventory of the real properties of the estate and an
accounting of the cash and bank deposits by the petitioner, as co-administrator of
the estate, if he has not yet done so, as required by this Court in its Resolution
dated June 15, 1983. This must be effected with all deliberate speed.

G.R. No. 63818

On June 9, 1979, respondents Jose Cuenco Borromeo and Petra O. Borromeo filed a
motion for inhibition in the Court of First Instance of Cebu, Branch II, presided over
by Judge Francisco P. Burgos to inhibit the judge from further acting in Special
Proceedings No. 916-R. The movants alleged, among others, the following:
xxx

xxx

xxx

1. "6.To keep the agitation to sell moving, Atty. Antigua filed a motion for the
production of the certificates of title and to deposit the same with the Branch Clerk
of Court, presumably for the ready inspection of interested buyers. Said motion was
granted by the Hon. Court in its order of October 2, 1978 which, however, became
the subject of various motions for reconsideration from heirs-distributees who
contended that as owners they cannot be deprived of their titles for the flimsy
reasons advanced by Atty. Antigua. In view of the motions for reconsideration, Atty.
Antigua ultimately withdraw his motions for production of titles.
2. "7.The incident concerning the production of titles triggered another incident
involving Atty. Raul H. Sesbreno who was then the counsel of herein movants Petra
O. Borromeo and Amelinda B. Talam. In connection with said incident, Atty.
Sesbreno filed a pleading which the Hon. Presiding Judge considered direct
contempt because, among others, Atty. Sesbreno insinuated that the Hon. Presiding
Judge stands to receive 'fat commission' from the sale of the entire property.
Indeed, Atty. Sesbreno was seriously in danger of being declared in contempt of
court with the dim prospect of suspension from the practice of his profession. But
obviously to extricate himself from the prospect of contempt and suspension, Atty.
Sesbreno chose repproachment and ultimately joined forces with Atty. Antigua, et
al., who, together, continued to harass administrator Jose Cuenco Borromeo.
xxx

xxx

xxx

1. "9.The herein movants are informed and so they allege, that a brother of the Hon.
Presiding Judge is married to a sister of Atty. Domingo L. Antigua.
2. "10.There is now a clear tug of war between Atty. Antigua, et al. who are agitating
for the sale of the entire estate or to buy out the individual heirs, on the one hand,
and the herein movants, on the other, who are not willing to sell their distributive
shares under the terms and conditions presently proposed. In this tug of war, a
pattern of harassment has become apparent against the herein movants, especially
Jose Cuenco Borromeo. Among the harassments employed by Atty. Antigua et al.
are the pending motions for the removal of administrator Jose Cuenco Borromeo,
the subpoena duces tecum issued to the bank which seeks to invade into the privacy
of the personal account of Jose Cuenco Borromeo, and the other matters mentioned
in paragraph 8 hereof. More harassment motions are expected until the herein
movants shall finally yield to the proposed sale. In such a situation, the herein
movants beg for an entirely independent and impartial judge to pass upon the
merits of said incidents.

1. "11.Should the Hon. Presiding Judge continue to sit and take cognizance of this
proceeding, including the incidents above-mentioned, he is liable to be
misunderstood as being biased in favor of Atty. Antigua, et al. and prejudiced
against the herein movants. Incidents which may create this impression need not
be enumerated herein. (pp. 39-41, Rollo)

The motion for inhibition was denied by Judge Francisco P. Burgos. Their motion for
reconsideration having been denied, the private respondents filed a petition for
certiorari and/or prohibition with preliminary injunction before the Intermediate
Appellate Court.
In the appellate court, the private respondents alleged, among others, the
following:
xxx

xxx

xxx

1. "16.With all due respect, petitioners regret the necessity of having to state herein
that respondent Hon. Francisco P. Burgos has shown undue interest in pursing the
sale initiated by Atty. Domingo L. Antigua, et al. Significantly, a brother of
respondent Hon. Francisco P. Burgos is married to a sister of Atty. Domingo L.
Antigua.
2. "17.Evidently, the proposed sale of the entire properties of the estate cannot be
legally done without the conformity of the heirsdistributees because the certificates
of title are already registered in their names. Hence, in pursuit of the agitation to
sell, respondent Hon. Francisco P. Burgos urged the heirs-distributees to sell the
entire property based on the rationale that proceeds thereof deposited in the bank
will earn interest more than the present income of the so called estate. Most of the
heirs-distributees, however, have been timid to say their piece. Only the 4/9 group
of heirs led by petitioner Jose Cuenco Borromeo have had the courage to stand up
and refusethe proposal to sell clearly favored by respondent Hon. Francisco
P.Burgos.
xxx

xxx

xxx

"20. Petitioners will refrain from discussing herein the merits of the shotgun motion of
Atty. Domingo L. Antigua as well as other incidents now pending in the court below which
smack of harassment against the herein petitioners. For, regardless of the merits of said
incidents, petitioners respectfully contend that it is highly improper for respondent Hon.

Francisco P. Burgos to continue to preside over Sp. Proc. No. 916-R by reason of the
following circumstances:
1. "(a)He has shown undue interest in the sale of the properties as initiated by Atty. Domingo L.
Antigua whose sister is married to a brother of respondent.
2. "(b)The proposed sale cannot be legally done without the conformity of the heirs-distributees,
and petitioners have openly refused the sale, to the great disappointment of respondent.
3. "(c)The shotgun motion of Atty. Antigua and similar incidents are clearly intended to harass
and embarrass administrator Jose Cuenco Borromeo in order to pressure him into acceding
to the proposed sale.
4. "(d)Respondent has shown bias and prejudice against petitioners by failing to resolve the
claim for attorney's fees filed by Jose Cuenco Borromeo and the late Crispin Borromeo.
Similar claims by the other lawyers were resolved by respondent after petitioners refused
the proposed sale." (pp. 41-43, Rollo)

On March 1, 1983, the appellate court rendered its decision granting the petition for
certiorari and/or prohibition and disqualifying Judge Francisco P. Burgos from
taking further cognizance of Special Proceedings No. 916-R. The court also ordered
the transmission of the records of the case to the Executive Judge of the Regional
Trial Court of Region VII for reraffling.
A motion for reconsideration of the decision was denied by the appellate court on
April 11, 1983. Hence, the present petition for review seeking to modify the decision
of the Intermediate Appellate Court insofar as it disqualifies and inhibits Judge
Francisco P. Burgos from further hearing the case of Intestate Estate of Vito
Borromeo and orders the remand of the case to the Executive Judge of the Regional
Trial Court of Cebu for re-raffling.
The principal issue in this case has become moot and academic because Judge
Francisco P. Burgos decided to retire from the Regional Trial Court of Cebu
sometime before the latest reorganization of the judiciary. However, we decide the
petition on its merits for the guidance of the judge to whom this case will be
reassigned and others concerned.
The petitioners deny that respondent Jose Cuenco Borromeo has been harassed.
They contend that Judge Burgos has never shown unusual interest in the proposed
sale of the entire estate for P6,700,000.00 in favor of the buyers of Atty. Antigua.

They claim that this disinterest is shown by the judge's order of March 2, 1979
assessing the property of the estate at P15,000,000.00. They add that he only
ordered the administrator to sell so much of the properties of the estate to pay the
attorney's fees of the lawyers-claimants. To them, the inhibition of Judge Burgos
would have been unreasonable because his orders against the failure of Jose Cuenco
Borromeo, as administrator, to give an accounting and inventory of the estate were
all affirmed by the appellate court. They claim that the respondent court should also
have taken judicial notice of the resolution of this Court directing the said judge to
"expedite the settlement and adjudication of the case" in G.R. No. 54232. And
finally, they state that the disqualification of Judge Burgos would delay further the
closing of the administration proceeding as he is the only judge who is conversant
with the 47 volumes of the records of the case.
Respondent Jose Cuenco Borromeo, to show that he had been harassed,
countered that Judge Burgos appointed Ricardo V. Reyes as co-administrator of the
estate on October 11, 1972, yet Borromeo was singled out to make an accounting of
what he was supposed to have received as rentals for the land upon which the
Juliana Trade Center is erected, from January, 1977 to February, 1982, inclusive,
without mentioning the withholding tax for the Bureau of Internal Revenue. In
order to bolster the agitation to sell as proposed by Domingo L. Antigua, Judge
Burgos invited Antonio Barredo, Jr., to a series of conferences from February 26 to
28, 1979. During the conferences, Atty. Antonio Barredo, Jr., offered to buy the
shares of the heirs-distributees presumably to cover up the projected sale initiated
by Atty. Antigua.
On March 2, 1979, or two days after the conferences, a motion was filed by
petitioner Domingo L. Antigua praying that Jose Cuenco Borromeo be required to
file an inventory when he has already filed one to account for cash, a report on
which the administrators had already rendered; and to appear and be examined
under oath in a proceeding conducted by Judge Burgos. It was also prayed that
subpoena duces tecum be issued for the appearance of the Manager of the
Consolidated Bank and Trust Co., bringing all the bank records in the name of Jose
Cuenco Borromeo jointly with his wife as well as the appearance of heirsdistributees Amelinda Borromeo Talam and another heir distributee Vitaliana
Borromeo. Simultaneously with the filing of the motion of Domingo Antigua, Atty.
Raul H. Sesbreno filed a request for the issuance of subpoena duces tecum to the
Manager of Consolidated Bank and Trust Co., Inc.; Register of Deeds of Cebu City;

Register of Deeds for the Province of Cebu and another subpoena duces tecumto
Atty. Jose Cuenco Borromeo.
On the same date, the Branch Clerk of Court issued a subpoena duces tecum to
the Manager of the bank, the Register of Deeds for the City of Cebu, the Register of
Deeds for the Province of Cebu, and to Jose Cuenco Borromeo.
On the following day, March 3, 1979, Atty. Gaudioso V. Villagonzalo in behalf of
the heirs of Marcial Borromeo who had a common cause with Atty. Barredo, Jr.,
joined petitioner Domingo L. Antigua by filing a motion for relief of the
administrator.
On March 5, 1979, Atty. Villagonzalo filed a request for the issuance of a
subpoena duces tecum to private respondent Jose Cuenco Borromeo to bring and
produce all the owners' copies of the titles in the court presided over by Judge
Burgos.
Consequently, the Branch Clerk of Court issued a subpoena duces
tecumcommanding Atty. Jose Cuenco Borromeo to bring and produce the titles in
court.
All the above-incidents were set for hearing on June 7, 1979 but on May 14, 1979,
before the date of the hearing, Judge Burgos issued an order denying the private
respondents' motion for reconsideration and the motion to quash the subpoena.
It was further argued by the private respondents that if Judge Francisco P.
Burgos is not inhibited or disqualified from trying Sp. Proc. No. 916-R, there would
be a miscarriage of justice because for the past twelve years, he had not done
anything towards the closure of the estate proceedings except to sell the properties
of the heirs-distributees as initiated by petitioner Domingo L. Antigua at 6.7 million
pesos while the Intestate Court had already evaluated it at 15 million pesos.
The allegations of the private respondents in their motion for inhibition, more
specifically, the insistence of the trial judge to sell the entire estate at
P6,700,000.00, where 4/9 group of heirs objected, cannot easily be ignored. Suspicion
of partiality on the part of a trial judge must be avoided at all costs. In the case
of Bautista v. Rebueno (81 SCRA 535), this Court stated:

"x x x The Judge must maintain and preserve the trust and faith of the parties litigants. He
must hold himself above reproach and suspicion. At the very first sign of lack of faith and
trust to his actions, whether well grounded or not, the Judge has no other alternative but
inhibit himself from the case. A judge may not be legally prohibited from sitting in a
litigation, but when circumstances appear that will induce doubt to his honest actuations
and probity in favor of either party, or incite such state of mind, he should conduct a careful
self-examination. He should exercise his discretion in a way that the people's faith in the
Courts of Justice is not impaired. The better course for the Judge under such circumstances
is to disqualify himself. That way, he avoids being misunderstood, his reputation for probity
and objectivity is preserved. What is more important, the ideal of impartial administration
of justice is lived up to."

In this case, the fervent distrust of the private respondents is based on sound
reasons. As earlier stated, however, the petition for review seeking to modify the
decision of the Intermediate Appellate Court insofar as it disqualifies and inhibits
Judge Francisco P. Burgos from further hearing the Intestate Estate of Vito
Borromeo case and ordering the remand of the case to the Executive Judge of the
Regional Trial Court for re-raffling should be DENIED for the decision is not only
valid but the issue itself has become moot and academic.
G.R. No. 65995
The petitioners seek to restrain the respondents from further acting on any and all
incidents in Special Proceedings No. 916-R during the pendency of this petition and
G.R. No. 63818. They also pray that all acts of the respondents related to the said
special proceedings after March 1, 1983 when the respondent Judge was
disqualified by the appellate court be declared null and void and without force and
effect whatsoever.
The petitioners state that the respondent Judge has set for hearing all incidents
in Special Proceedings No. 916-R, including the reversion from the heirsdistributees to the estate, of the distributed properties already titled in their names
as early as 1970, notwithstanding the pending inhibition case elevated before this
Court which is docketed as G.R. No. 63818.
The petitioners further argue that the present status of Special Proceeding No.
916-R requires only the appraisal of the attorney's fees of the lawyers-claimants who

were individually hired by their respective heirs-clients, so their attorney's fees

should be legally charged against their respective clients and not against the estate.
On the other hand, the respondents maintain that the petition is a dilatory one
and barred by res judicata because this Court on July 8, 1981, in G.R. No.
54232 directed the respondent Judge to expedite the settlement and liquidation of
the decedent's estate. They claim that this resolution, which was already final and
executory, was in effect reversed and nullified by the Intermediate Appellate Court
in its caseACG.R. No. SP-11145when it granted the petition for certiorari
and/or prohibition and disqualified Judge Francisco P. Burgos from taking further
cognizance of Special Proceedings No. 916R as well as ordering the transmission of
the records of the case to the Executive Judge of the Regional Trial Court of Region
VII for re-raffling on March 1, 1983, which was appealed to this Court by means of a
Petition for Review (G.R. No. 63818).
We agree with the petitioners' contention that attorney's fees are not the
obligation of the estate but of the individual heirs who individually hired their
respective lawyers. The portion, therefore, of the Order of August 15, 1969,
segregating the exhorbitantly excessive amount of 40% of the market value of the
estate from which attorney's fees shall be taken and paid should be deleted.
Due to our affirmance of the decision of the Intermediate Appellate Court inG.R.
No. 63818, we grant the petition.
WHEREFORE,
1. (1)In G.R. No. 41171, the order of the respondent judge dated December 24, 1974,
declaring the respondent entitled to 5/9 of the estate of the late Vito Borromeo and
the order dated July 7, 1975, denying the petitioner's motion for reconsideration of
the aforementioned order are hereby SET ASIDE for being NULL and VOID;
2. (2)In G.R. No. 55000, the order of the trial court declaring the waiver document valid
is hereby SET ASIDE;
3. (3)In G.R. No. 63818, the petition is hereby DENIED. The issue in the decision of the
Intermediate Appellate Court disqualifying and ordering the inhibition of Judge
Francisco P. Burgos from further hearing Special Proceedings No. 916-R is declared
moot and academic. The judge who has taken over the sala of retired Judge
Francisco P. Burgos shall immediately conduct hearings with a view to terminating

the proceedings. In the event that the successor-judge is likewise disqualified, the
order of the Intermediate Appellate Court directing the Executive Judge of the
Regional Trial Court of Cebu to reraffle the case shall be implemented;
4. (4)In G.R. No. 65995, the petition is hereby GRANTED. The issue seeking to restrain
Judge Francisco P. Burgos from further acting in G.R. No. 63818 is MOOT and
ACADEMIC;

5. (5)In G.R. No. 62895, the trial court is hereby ordered to speedily terminate the close

Special Proceedings No. 916-R, subject to the submission of an inventory of the real
properties of the estate and an accounting of the cash and bank deposits by the
petitioner-administrator of the estate as required by this Court in its Resolution
dated June 15, 1983; and

1. (6)The portion of the Order of August 15, 1969, segregating 40% of the market value
of the estate from which attorney's fees shall be taken and paid should be, as it is
hereby DELETED. The lawyers should collect from the heirsdistributees who
individually hired them, attorney's fees according to the nature of the services
rendered but in amounts which should not exceed more than 20% of the market
value of the property the latter acquired from the estate as beneficiaries.

SO ORDERED.
Feliciano, Bidin and Corts, JJ.,concur.
Fernan (Chairman), No part. I appeared as counsel for one of the parties.
In G.R. Nos. 41171 and 55000, orders set aside; G.R. No. 63818, petition denied;
G.R. No. 65995, petition granted.
Notes.Although it is true that final orders in probate cases partake the nature
of a judgment in rem, binding upon the whole world, it does not follow therefrom
that said final orders, like any other judgment or final order, cannot within the
statutory period of prescription, be annulled upon the ground of extrinsic
fraud. (Vda. de Serrano us. Court of Appeals, 33 SCRA 865.)
In extrajudicial partition, court approved is imperative, and the heirs cannot just
divest the court of its jurisdiction over the estate and over their persons, by the mere
act of assignment and desistance. (Gutierrez us. Villegas, 5 SCRA 313.)

o0o

No. L-46903. July 23, 1987.

BUHAY DE ROMA, petitioner, vs. THE HONORABLE COURT OF APPEALS and

FELICIDAD CARINGAL, as Guardian of Rosalinda de Roma, respondents.
Civil Law; Succession; Intestacy; Collation; Fact that a donation is irrevocable does not
necessarily exempt the donated properties from collation as required under Art. 1061, Civil
Code; Given the precise language of the deed of donation the decedent-donor would have
included an express prohibition to collate if that had been the donor's intention.We agree
with the respondent court that there is nothing in the above provisions expressly
prohibiting the collation of the donated properties. As the said court correctly observed, the
phrase "sa pamamagitan ng pagbibigay na di na mababawing muli" merely described the
donation as "irrevocable" and should not be construed as an express prohibition against
collation. The fact that a donation is irrevocable does not necessarily exempt the subject
thereof from the collation required under Article 1061. We surmise from the use of such
terms as "legitime" and "free portion" in the deed of donation that it was prepared by a
lawyer, and we may also presume he understood the legal consequences of the donation
being made. It is reasonable to suppose, given the precise language of the document, that he
would have included therein an express prohibition to collate if that had been the donor's
intention. Anything less than such express prohibition will not suffice under the clear
language of Article 1062.
Same; Same; Same; Same; Intention to exempt donated properties from collation should
be expressed plainly and unequivocally as an exception to the general rule in Art. 1062, Civil
Code; Absent such a clear indication of that intention, the rule not the exception should be

applied.The intention to exempt from collation should be expressed plainly and

unequivocally as an exception to the general rule announced in Article 1062. Absent such a
clear indication of that intention, we apply not the exception but the rule, which is
categorical enough.
Constitutional Law; Judiciary; Decisions; Provision in Art. X, Sec. 11 (1) of the 1973
Constitution fixing the period for the Court of Appeals to decide cases within the 12-month
period is merely directory, and failure to decide would not deprive the corresponding courts
of jurisdiction or render their decisions invalid; Provision reworded in Art. VIII, Sec. 5, 1987
Constitution which impresses upon courts the need for speedy disposition of cases, but
serious studies and efforts are now being taken by the Supreme CourtThere is no need to
dwell long on the other error assigned by the petitioner regarding the decision of the
appealed case by the respondent court beyond the 12month period prescribed by Article X,
Section 11 (1) of the 1973 Constitution. As we held in Marcelino v. Cruz, the said provision
was merely directory and failure to decide on time would not deprive the corresponding
courts of jurisdiction or render their decisions invalid. It is worth stressing that the
aforementioned provision has now been reworded in Article VIII, Section 15, of the 1987
Constitution, which also impresses upon the courts of justice, indeed with greater urgency,
the need for the speedy disposition of the cases that have been clogging their dockets these
many years. Serious studies and efforts are now being taken by the Court to meet that need.

PETITION to review the order of the Court of Appeals.

The facts are stated in the opinion of the Court.
CRUZ, J.:
Candelaria de Roma had two legally adopted daughters, Buhay de Roma and
Rosalinda de Roma. She died intestate on April 30, 1971, and administration
proceedings were instituted in the Court of First Instance of Laguna by the private
respondent as guardian of Rosalinda. Buhay was appointed administratrix and in
due time filed an inventory of the estate. This was opposed by Rosalinda on the
ground that certain properties earlier donated by Candelaria to Buhay, and the
fruits thereof, had not been included.

The properties in question consisted of seven parcels of coconut land worth

P10,297.50. There is no dispute regarding their valuation; what the parties cannot
2

agree upon is whether these lands are subject to collation. The private respondent
vigorously argues that it is, conformably to Article 1061 of the Civil Code. Buhay, for
her part, citing Article 1062, claims she has no obligation to collate because the
decedent prohibited such collation and the donation was not officious.
The two articles provide as follows:
"Article 1061. Every compulsory heir, who succeeds with other compulsory heirs, must bring
into the mass of the estate any property or right which he may have received from the
decedent during the lifetime of the latter, by way of donation, or any other gratuitous title,
in order that it may be computed in the determination of the legitime of each heir, and in
the account of the partition."
"Article 1062. Collation shall not take place among compulsory heirs if the donor should
have so expressly provided, or if the donee should repudiate the inheritance, unless the
donation should be reduced as inofficious."

The issue was resolved in favor of the petitioner by the trial court, which held that
**

the decedent, when she made the donation in favor of Buhay, expressly prohibited
collation. Moreover, the donation did not impair the legitimes of the two adopted
daughters as it could be accommodated in, and in fact was imputed to, the free
portion of Candelaria's estate.

On appeal, the order of the trial court was reversed, the respondent
court holding that the deed of donation contained no express prohibition to collate
***

as an exception to Article 1062. Accordingly, it ordered collation and equally divided

the net estate of the decedent, including the fruits of the donated property, between
Buhay and Rosalinda.

The pertinent portions of the deed of donation are as f ollows:

"IKALAWA. Na alang-alang sa aking pagmamahal, pagtingin at pagsisilbi sa akin ng aking
anak na si BUHAY DE ROMA, kasal kay Arabella Castaneda, may karampatang gulang,

mamamayang Pilipino at naninirahan at may pahatirang-sulat din dito sa Lungsod ng San

Pablo sa pamamagitan ng kasulatang ito ay kusang-loob kong ibinibigay, ipinagkakaloob at
inililipat sa nabanggit na BUHAY DE ROMA, sa kanyang mga kahalili at tagapagmana, sa
pamamagitan ng pagbibigay na di na mababawing muli, ang lahat ng mga lagay ng lupa na
sinasabi sa itaas, sa ilalim ng kasunduan na ngayon pa ay siya na ang nagmamay-aring
tunay ng mga lupang ito at kanya nang maaring ipalipat ang mga hoja declaratoria ng mga
lupang ito sa kanyang pangalan, datapwa't samantalang ako ay nabubuhay, ay ako rin ang
makikinabang sa mga mapuputi at mamomosesion sa mga nasabing lupa;
"IKATLO. Na pinagtibay ko na ako ay marami pang ibang mga pag-aari sa sapat pang
aking ikabuhay at sa pagbibigay kong ito ay hindi masisira ang legitima ng mga tao na
dapat magmana sa akin, sapagkat ang mga lupang sinasabi sa itaas ay bahagui ng aking
kabuhayan na ako ay may layang ipamigay kahit na kaninong tao na kung tawagin ay Libre
Disposicion." '

We agree with the respondent court that there is nothing in the above provisions
expressly prohibiting the collation of the donated properties. As the said court
correctly observed, the phrase "sa pamamagitan ng pagbibigay na di na
mababawing muli" merely described the donation as "irrevocable" and should not be
construed as an express prohibition against collation. The fact that a donation is
6

irrevocable does not necessarily exempt the subject thereof from the collation
required under Article 1061.
We surmise from the use of such terms as "legitime" and "free portion" in the
deed of donation that it was prepared by a lawyer, and we may also presume he
understood the legal consequences of the donation being made. It is reasonable to
suppose, given the precise language of the document, that he would have included
therein an express prohibition to collate if that had been the donor's intention.
Anything less than such express prohibition will not suffice under the clear
language of Article 1062. The suggestion that there was an implied prohibition
because the properties donated were imputable to the free portion of the decedent's
estate merits little consideration. Imputation is not the question here, nor is it

claimed that the disputed donation is officious. The sole issue is whether or not
there was an express prohibition to collate, and we see none.
The intention to exempt from collation should be expressed plainly and
unequivocally as an exception to the general rule announced in Article 1062. Absent
such a clear indication of that intention, we apply not the exception but the rule,
which is categorical enough.
There is no need to dwell long on the other error assigned by the petitioner
regarding the decision of the appealed case by the respondent court beyond the 12month period prescribed by Article X, Section 11 (1) of the 1973 Constitution. As we
held in Marcelino v. Cruz, the said provision was merely directory and failure to
7

decide on time would not deprive the corresponding courts of jurisdiction or render
their decisions invalid.
It is worth stressing that the aforementioned provision has now been reworded in
Article VIII, Section 15, of the 1987 Constitution, which also impresses upon the
courts of justice, indeed with greater urgency, the need for the speedy disposition of
the cases that have been clogging their dockets these many years. Serious studies
and efforts are now being taken by the Court to meet that need.
WHEREFORE, the appealed decision is AFFIRMED in toto, with costs against the petitioner. It
is so ordered.
Teehankee (C.J.), Narvasa, Paras and Gancayco, JJ., concur.
Decision affirmed.
Notes.A rule which would require a judge to resolve a motion for execution within 15 days
would be difficult, if not impossible to follow. (Universal Far East Corporation vs. Court of
Appeals, 131 SCRA 642.)
Failure of judge to decide a case within 30 days does notdivest him of his jurisdiction. (Marcelino
vs. Cruz, Jr., 121 SCRA 51.)

G.R. No. 141882. March 11, 2005.

J.L.T. AGRO, INC., represented by its Manager, JULIAN L. TEVES,

petitioner, vs. ANTONIO BALANSAG and HILARIA CADAYDAY, respondents.
Civil Law; Contracts; All things, even future ones which are not outside the commerce of
man may be the object of a contract, except that no contract may be entered into with respect
to future inheritance, and the exception to the exception is the partition inter vivos referred to
in Article 1080.Well-entrenched is the rule that all things, even future ones, which are not
outside the commerce of man may be the object of a contract. The exception is that no
contract may be entered into with respect to future inheritance, and the exception to the
exception is the partition inter vivosreferred to in Article 1080.
Same; Legitimes; Preterition; Preterition is defined as the omission of the heir in the
will, either by not naming him at all or, while mentioning him as father, son, etc., by not
instituting him as heir without disinheriting him expressly, nor assigning to him some part
of the properties; It is the total omission of a compulsory heir in the direct line from
inheritance; There is no preterition where the testator allotted to a descendant a share less
than the legitime, since there was no total omission of a forced heir.Article 854 provides
that the preterition or omission of one, some, or all of the compulsory heirs in the direct
line, whether living at the time of the execution of the will or born after the death of the
testator, shall annul the institution of heir; but the devises and legacies shall be valid
insofar as they are not inofficious. Manresa defines preterition as the omission of the heir in
the will, either by not naming him at all or, while mentioning him as father, son, etc., by not
instituting him as heir without disinheriting him expressly, nor assigning to him some part
of the properties. It is the total omission of a compulsory heir in the direct line from
inheritance. It consists in the silence of the testator with regard to a compulsory heir,
omitting him in thetestament, either by not mentioning him at all, or by not giving him
anything in the hereditary property but without expressly disinheriting him, even if he is
mentioned in the will in the latter case. But there is no preterition where the testator
allotted to a descendant a share less than the legitime, since there was no total omission of
a forced heir.
Same; Donation; Title to immovable property does not pass from the donor to the donee
by virtue of a deed of donation until and unless it has been accepted in a public instrument
and the donor duly notified thereof.In Sumipat, et al. v. Banga, et al.,this Court declared
that title to immovable property does not pass from the donor to the donee by virtue of a
deed of donation until and unless it has been accepted in a public instrument and the donor
duly notified thereof. The acceptance may be made in the very same instrument of donation.
If the acceptance does not appear in the same document, it must be made in another. Where
the deed of donation fails to show the acceptance, or where the formal notice of the

acceptance, made in a separate instrument, is either not given to the donor or else not noted
in the deed of donation and in the separate acceptance, the donation is null and void.
Same; Land Titles; A certificate of title serves as evidence of an indefeasible title to the
property in favor of the person whose name appears therein.Well-settled, of course, is the
rule that a certificate of title serves as evidence of an indefeasible title to the property in
favor of the person whose name appears therein. A certificate of title accumulates in one
document a precise and correct statement of the exact status of the fee held by its owner.
The certificate, in the absence of fraud, is the evidence of title and shows exactly the real
interest of its owner.
Same; Same; To successfully assail the juristic value of what a Torrens title establishes,
a sufficient and convincing quantum of evidence on the defect of the title must be adduced to
overcome the predisposition in law in favor of a holder of a Torrens title.To successfully
assail the juristic value of what a Torrens title establishes, a sufficient and convincing
quantum of evidence on the defect of the title must be adduced to overcome the
predisposition in law in favor of a holder of a Torrens title. Thus, contrary to the appellate
courts ruling, the appearance of a mere thumbmark of Don Julian instead of his signature
in theSupplemental Deed would not affect the validity of petitioners title for this Court has
ruled that a thumbmark is a recognized mode of signature.

PETITION for review on certiorari of a decision of the Court of Appeals.

The facts are stated in the opinion of the Court.
Epifanio Sedigo, Sr. and Guingona & Sedigo for petitioner.
Jose A. Arbas for respondents.
TINGA, J.:
Once again, the Court is faced with the perennial conflict of property claims
between two sets of heirs, a conflict ironically made grievous by the fact that the
decedent in this case had resorted to great lengths to allocate which properties
should go to which set of heirs.
This is a Rule 45 petition assailing the Decision dated 30 September 1999 of the
Court of Appeals which reversed theDecision dated 7 May 1993 of the Regional
Trial Court (RTC), Branch 45, of Bais City, Negros Oriental.
1

The factual antecedents follow.

Don Julian L. Teves (Don Julian) contracted two marriages, first with Antonia
Baena (Antonia), and after her death, with Milagros Donio Teves (Milagros Donio).
Don Julian had two children with Antonia, namely: Josefa Teves Escao (Josefa)
and Emilio Teves (Emilio). He had also four (4) children with Milagros Donio,
namely: Maria Evelyn Donio Teves (Maria Evelyn), Jose Catalino Donio Teves (Jose
Catalino), Milagros Reyes Teves (Milagros Reyes) and Pedro Reyes Teves (Pedro).
3

The present controversy involves a parcel of land covering nine hundred and fiftyfour (954) square meters, known as Lot No. 63 of the Bais Cadastre, which was
originally registered in the name of the conjugal partnership of Don Julian and
Antonia under Original Certificate of Title (OCT) No. 5203 of the Registry of Deeds
of Bais City. When Antonia died, the land was among the properties involved in an
action for partition and damages docketed as Civil Case No. 3443 entitled Josefa
Teves Escao v. Julian Teves, Emilio B. Teves, et al. Milagros Donio, the second
wife of Don Julian, participated as an intervenor. Thereafter, the parties to the case
entered into a Compromise Agreement which embodied the partition of all the
properties of Don Julian.
4

On the basis of the compromise agreement and approving the same, the Court of
First Instance (CFI) of Negros Oriental, 12th Judicial District, rendered
a Decision dated 31 January 1964. The CFI decision declared a tract of land known
as Hacienda Medalla Milagrosa as property owned in common by Don Julian and
his two (2) children of the first marriage. The property was to remain undivided
during the lifetime of Don Julian. Josefa and Emilio likewise were given other
properties at Bais, including the electric plant, the movie property, the commercial
areas, and the house where Don Julian was living. The remainder of the properties
was retained by Don Julian, including Lot No. 63.
6

Paragraph 13 of the Compromise Agreement, at the heart of the present dispute,

lays down the effect of the eventual death of Don Julian vis--vis his heirs:
13. That in the event of death of Julian L. Teves, the properties hereinafter adjudicated to
Josefa Teves Escao and Emilio B. Teves, (excluding the properties comprised as Hacienda
Medalla Milagrosa together with all its accessories and accessions) shall be understood as
including not only their one-half share which they inherited from their mother but also the
legitimes and other successional rights which would correspond to them of the other half

belonging to their father, Julian L. Teves. In other words, the properties now selected
and adjudicated to Julian L. Teves (not including his share in the Hacienda

Medalla Milagrosa) shall exclusively be adjudicated to the wife in second marriage of

Julian L. Teves and his four minor children, namely, Milagros Donio Teves, his two
acknowledged natural children Milagros Reyes Teves and Pedro Reyes Teves and his two
legitimated children Maria Evelyn Donio Teves and Jose Catalino Donio Teves. (Emphasis
supplied)

On 16 November 1972, Don Julian, Emilio and Josefa executed a Deed of

Assignment of Assets with Assumption of Liabilities in favor of J.L.T. Agro, Inc.
(petitioner). Less than a year later, Don Julian, Josefa and Emilio also executed an
instrument entitled Supplemental to the Deed of Assignment of Assets with the
Assumption of Liabilities (Supplemental Deed) dated 31 July 1973. This instrument
which constitutes a supplement to the earlier deed of assignment transferred
ownership over Lot No. 63, among other properties, in favor of petitioner. On 14
April 1974, Don Julian died intestate.
8

10

On the strength of the Supplemental Deed in its favor, petitioner sought the
registration of the subject lot in its name. A court, so it appeared, issued an
order cancelling OCT No. 5203 in the name of spouses Don Julian and Antonia on
12 November 1979, and on the same date TCT No. T-375 was issued in the name of
petitioner. Since then, petitioner has been paying taxes assessed on the subject lot.
11

12

13

Meanwhile, Milagros Donio and her children had immediately taken possession
over the subject lot after the execution of the Compromise Agreement. In 1974, they
entered into a yearly lease agreement with spouses Antonio Balansag and Hilaria
Cadayday, respondents herein. On Lot No. 63, respondents temporarily established
their home and constructed a lumber yard. Subsequently, Milagros Donio and her
children executed a Deed of Extrajudicial Partition of Real Estate dated 18 March
1980. In the deed of partition, Lot No. 63 was allotted to Milagros Donio and her two
(2) children, Maria Evelyn and Jose Catalino. Unaware that the subject lot was
already registered in the name of petitioner in 1979, respondents bought Lot No. 63
from Milagros Donio as evidenced by the Deed of Absolute Sale of Real Estate dated
9 November 1983.
14

15

16

At the Register of Deeds while trying to register the deed of absolute sale,
respondents discovered that the lot was already titled in the name of petitioner.
Thus, they failed to register the deed.
17

Respondents, as vendees of Lot No. 63, filed a complaint before the RTC Branch
45 of Bais City, seeking the declaration of nullity and cancellation of TCT No. T-375
in the name of petitioner and the transfer of the title to Lot No. 63 in their names,
plus damages.
18

After hearing, the trial court dismissed the complaint filed by respondents. The
dispositive portion of the decision reads:
WHEREFORE, premises considered, by preponderance of evidence, this Court finds
judgment in favor of the defendant and against the plaintiff, and thus hereby orders:
1. (1)That complaint be dismissed;
2. (2)That plaintiffs vacate the subject land, particularly identified as Lot No. 63
registered under Transfer Certificate of Title No. T-375;
3. (3)That plaintiffs pay costs.
Finding no basis on the counterclaim by defendant, the same is hereby ordered
dismissed.
19

The trial court ruled that the resolution of the case specifically hinged on the
interpretation of paragraph 13 of the Compromise Agreement. It added that the
direct adjudication of the properties listed in the Compromise Agreement was only in
favor of Don Julian and his two children by the first marriage, Josefa and
Emilio. Paragraph 13 served only as an amplification of the terms of the
adjudication in favor of Don Julian and his two children by the first marriage.
20

21

According to the trial court, the properties adjudicated in favor of Josefa and
Emilio comprised their shares in the estate of their deceased mother Antonia, as
well as their potential share in the estate of Don Julian upon the latters death.
Thus, upon Don Julians death, Josefa and Emilio could not claim any share in his
estate, except their proper share in the Hacienda Medalla Milagrosa which was
adjudicated in favor of Don Julian in the Compromise Agreement. As such, the
properties adjudicated in favor of Don Julian, except Hacienda Medalla Milagrosa,
were free from the forced legitimary rights of Josefa and Emilio, and Don Julian
was under no impediment to allocate the subject lot, among his other properties, to
Milagros Donio and her four (4) children.
22

The trial court further stressed that with the use of the words shall be, the
adjudication in favor of Milagros Donio and her four (4) children was not final and
operative, as the lot was still subject to future disposition by Don Julian during his
lifetime. It cited paragraph 14 of theCompromise Agreement in support of his
conclusion. With Lot No. 63 being the conjugal property of Don Julian and Antonia,
the trial court also declared that Milagros Donio and her children had no hereditary
rights thereto except as to the conjugal share of Don Julian, which they could claim
only upon the death of the latter.
23

24

25

26

The trial court ruled that at the time of Don Julians death on 14 April 1974, Lot
No. 63 was no longer a part of his estate since he had earlier assigned it to
petitioner on 31 July 1973. Consequently, the lot could not be a proper subject of
extrajudicial partition by Milagros Donio and her children, and not being the owners
they could not have sold it. Had respondents exercised prudence before buying the
subject lot by investigating the registration of the same with the Registry of Deeds,
they would have discovered that five (5) years earlier, OCT No. 5203 had already
been cancelled and replaced by TCT No. T-375 in the name of petitioner, the trial
court added.
27

The Court of Appeals, however, reversed the trial courts decision. The decretal
part of the appellate decision reads:
WHEREFORE, premises considered, the decision appealed from is hereby REVERSED
and SET ASIDE and a new one is entered declaring the Transfer Certificate of Title No. T375 registered in the name of J.L.T. Agro, Inc. as null and void. With costs against
defendant J.L.T. Agro, Inc. represented by its Manager, Julian L. Teves.
SO ORDERED.

28

Per the appellate court, the Compromise Agreementincorporated in CFI decision

dated 31 January 1964, particularly paragraph 13 thereof, determined, adjudicated
and reserved to Don Julians two sets of heirs their future legitimes in his estate
except as regards his (Don Julians) share in Hacienda Medalla Milagrosa. The two
sets of heirs acquired full ownership and possession of the properties respectively
adjudicated to them in the CFI decision and Don Julian himself could no longer
dispose of the same, including Lot No. 63. The disposition in the CFI decision
constitutes res judicata. Don Julian could have disposed of only his conjugal share
in the Hacienda Medalla Milagrosa.
29

30

31

The appellate court likewise emphasized that nobody in his right judgment would
preterit his legal heirs by simply executing a document like the Supplemental
Deed which practically covers all properties which Don Julian had reserved in favor
of his heirs from the second marriage. It also found out that the blanks reserved for
the Book No. and Page No. at the upper right corner of TCT No. T-375, to identify
the exact location where the said title was registered or transferred, were not filled
up, thereby indicating that the TCT is spurious and of dubious origin.
32

Aggrieved by the appellate courts decision, petitioner elevated it to this

Court via a petition for review on certiorari, raising pure questions of law.
Before this Court, petitioner assigns as errors the following rulings of the
appellate court, to wit: (a) that future legitime can be determined, adjudicated and
reserved prior to the death of Don Julian; (b) that Don Julian had no right to
dispose of or assign Lot No. 63 to petitioner because he reserved the same for his
heirs from the second marriage pursuant to the Compromise Agreement; (c) that
the Supplemental Deed was tantamount to a preterition of his heirs from the second
marriage; and (d) that TCT No. T-375 in the name of petitioner is spurious for not
containing entries on the Book No. and Page No.
33

While most of petitioners legal arguments have merit, the application of the
appropriate provisions of law to the facts borne out by the evidence on record
nonetheless warrants the affirmance of the result reached by the Court of Appeals
in favor of respondents.
Being the key adjudicative provision, paragraph 13 of the Compromise
Agreement has to be quoted again:
13. That in the event of death of Julian L. Teves, the properties herein adjudicated to Josefa
Teves Escao and Emilio B. Teves, (excluding the properties comprised as Hacienda
Medalla Milagrosa together with all its accessories and accessions) shall be understood as
including not only their one-half share which they inherited from their mother but also the
legitimes and other successional rights which would correspond to them of the other half
belonging to their father, Julian L. Teves. In other words, the properties now selected
and adjudicated to Julian L. Teves (not including his share in the Hacienda
Medalla Milagrosa) shall exclusively be adjudicated to the wife in second
marriage of Julian L. Teves and his four minor children, namely, Milagros Donio
Teves, his two acknowledged natural children Milagros Reyes Teves and Pedro

Reyes Teves and his two legitimated children Maria Evelyn Donio Teves and Jose
Catalino Donio Teves.(Emphasis supplied)

With the quoted paragraph as basis, the Court of Appeals ruled that the
adjudication in favor of the heirs of Don Julian from the second marriage became
automatically operative upon the approval of the Compromise Agreement, thereby
vesting on them the right to validly dispose of Lot No. 63 in favor of respondents.
Petitioner argues that the appellate court erred in holding that future legitime
can be determined, adjudicated and reserved prior to the death of Don Julian. The
Court agrees. Our declaration in Blas v. Santos is relevant, where we defined
future inheritance as any property or right not in existence or capable of
34

determination at the time of thecontract, that a person may in the future

acquire by succession. Article 1347 of the New Civil Code explicitly provides:
ART. 1347. All things which are not outside the commerce of men, including future things,
may be the object of a contract. All rights which are not intransmissible may also be the
object of contracts.
No contract may be entered into upon future inheritance except in cases
expressly authorized by law.
All services which are not contrary to law, morals, good customs, public order or public
policy may likewise be the object of a contract.

Well-entrenched is the rule that all things, even future ones, which are not outside
the commerce of man may be the object of a contract. The exception is that no
contract may be entered into with respect to future inheritance, and the exception to
the exception is the partition inter vivosreferred to in Article 1080.
35

For the inheritance to be considered future, the succession must not have been
opened at the time of the contract. A contract may be classified as a contract upon
future inheritance, prohibited under the second paragraph of Article 1347, where
the following requisites concur:
36

1. (1)That the succession has not yet been opened;

2. (2)That the object of the contract forms part of the inheritance; and

3. (3)That the promissor has, with respect to the object, an expectancy of a right which
is purely hereditary in nature.
37

The first paragraph of Article 1080, which provides the exception to the exception
and therefore aligns with the general rule on future things, reads:
ART. 1080. Should a person make a partition of his estate by an act inter vivos, or by will,
such partition shall be respected, insofar as it does not prejudice the legitime of the
compulsory heirs.
....

In interpreting this provision, Justice Edgardo Paras advanced the opinion that if
the partition is made by an actinter vivos, no formalities are prescribed by the
Article. The partition will of course be effective only after death. It does not
38

necessarily require the formalities of a will for after all it is not the partition that is
the mode of acquiring ownership. Neither will the formalities of a donation be
required since donation will not be the mode of acquiring the ownership here after
death; since no will has been made it follows that the mode will be succession
(intestate succession). Besides, the partition here is merely the physical
determination of the part to be given to each heir.
39

The historical antecedent of Article 1080 of the New Civil Code is Article 1056 of
the old Civil Code. The only change in the provision is that Article 1080 now permits
any person (not a testator, as under the old law) to partition his estate by act inter
vivos. This was intended to abrogate the then prevailing doctrine that for a testator
to partition his estate by an act inter vivos, he must first make a will with all the
formalities provided by law.
40

41

Article 1056 of the old Civil Code (now Article 1080) authorizes a testator to
partition inter vivos his property, and distribute them among his heirs, and this
partition is neither a donation nor a testament, but an instrument of a
special character, sui

generis, which

is

revocable

at

any

time

by the causante during his lifetime, and does not operate as a conveyance of
title until his death. It derives its binding force on the heirs from the respect due
to the will of the owner of the property, limited only by his creditors and the
intangibility of the legitime of the forced heirs.
42

The partition inter vivos of the properties of Don Julian is undoubtedly valid
pursuant to Article 1347. However, considering that it would become legally
operative only upon the death of Don Julian, the right of his heirs from the second
marriage to the properties adjudicated to him under the compromise agreement was
but a mere expectancy. It was a bare hope of succession to the property of their
father. Being the prospect of a future acquisition, the interest by its nature was
inchoate. It had no attribute of property, and the interest to which it related was at
the time nonexistent and might never exist.
43

Evidently, at the time of the execution of the deed of assignment covering Lot No.
63 in favor of petitioner, Don Julian remained the owner of the property since
ownership over the subject lot would only pass to his heirs from the second marriage
at the time of his death. Thus, as the owner of the subject lot, Don Julian retained
the absolute right to dispose of it during his lifetime. His right cannot be challenged
by Milagros Donio and her children on the ground that it had already been
adjudicated to them by virtue of the compromise agreement.
Emerging as the crucial question in this case is whether Don Julian had validly
transferred ownership of the subject lot during his lifetime. The lower court ruled
that he had done so through the Supplemental Deed. The appellate court disagreed,
holding that the Supplemental Deed is not valid, containing as it does a prohibited
preterition of Don Julians heirs from the second marriage. Petitioner contends that
the ruling of the Court of Appeals is erroneous. The contention is well-founded.
Article 854 provides that the preterition or omission of one, some, or all of the
compulsory heirs in the direct line, whether living at the time of the execution of the
will or born after the death of the testator, shall annul the institution of heir; but
the devises and legacies shall be valid insofar as they are not inofficious. Manresa
defines preterition as the omission of the heir in the will, either by not naming him
at all or, while mentioning him as father, son, etc., by not instituting him as heir
without disinheriting him expressly, nor assigning to him some part of the
properties. It is the total omission of a compulsory heir in the direct line from
inheritance. It consists in the silence of the testator with regard to a compulsory
heir, omitting him in the testament, either by not mentioning him at all, or by not
44

45

giving him anything in the hereditary property but without expressly disinheriting
him, even if he is mentioned in the will in the latter case. But there is no preterition
46

where the testator allotted to a descendant a share less than the legitime, since
there was no total omission of a forced heir.
47

In the case at bar, Don Julian did not execute a will since what he resorted to
was a partition inter vivos of his properties, as evidenced by the court
approved Compromise Agreement. Thus, it is premature if not irrelevant to speak of
preterition prior to the death of Don Julian in the absence of a will depriving a legal
heir of his legitime. Besides, there are other properties which the heirs from the
second marriage could inherit from Don Julian upon his death. A couple of
provisions in the Compromise Agreement are indicative of Don Julians desire along
this line. Hence, the total omission from inheritance of Don Julians heirs from the
second marriage, a requirement for preterition to exist, is hardly imaginable as it is
unfounded.
48

Despite the debunking of respondents argument on preterition, still the petition

would ultimately rise or fall on whether there was a valid transfer effected by Don
Julian to petitioner. Notably, Don Julian was also the president and director of
petitioner, and his daughter from the first marriage, Josefa, was the treasurer
thereof. There is of course no legal prohibition against such a transfer to a family
corporation. Yet close scrutiny is in order, especially considering that such transfer
would remove Lot No. 63 from the estate from which Milagros and her children
could inherit. Both the alleged transfer deed and the title which necessarily must
have emanated from it have to be subjected to incisive and detailed examination.
Well-settled, of course, is the rule that a certificate of title serves as evidence of
an indefeasible title to the property in favor of the person whose name appears
therein. A certificate of title accumulates in one document a precise and correct
statement of the exact status of the fee held by its owner. The certificate, in the
absence of fraud, is the evidence of title and shows exactly the real interest of its
owner.
49

50

To successfully assail the juristic value of what a Torrens title establishes, a

sufficient and convincing quantum of evidence on the defect of the title must be
adduced to overcome the predisposition in law in favor of a holder of a Torrens title.
Thus, contrary to the appellate courts ruling, the appearance of a mere thumbmark
of Don Julian instead of his signature in the Supplemental Deed would not affect the

validity of petitioners title for this Court has ruled that a thumbmark is a
recognized mode of signature.
51

The truth, however, is that the replacement of OCT No. 5203 in the name of
Julian by T.C.T. No. T-375 is marred by a grave irregularity which is also an
illegality, as it contravenes the orthodox, conventional and normal process
established by law. And, worse still, the illegality is reflected on the face of both
titles. Where, as in this case, the transferee relies on a voluntary instrument to
secure the issuance of a new title in his name such instrument has to be presented
to the Registry of Deeds. This is evident from Sections 53 and 57 of Presidential
Decree (P.D.) No. 1529 or the Property Registration Decree. The sections read, thus:
SEC. 53. Presentation of owners duplicate upon entry of new certificate.No voluntary
instrument shall be registered by the Register of Deeds unless the owners duplicate
certificate ispresented with such instrument, except in cases expressly provided for in
this Decree or upon order of the court, for cause shown. (Emphasis supplied)
....
SEC. 57. Procedure in registration of conveyances.An owner desiring to convey his
registered land in fee simple shall execute and register a deed of conveyance in a form
sufficient in law. The Register of Deeds shall thereafter make out in the registration book
a new certificate of title to the grantee and shall prepare and deliver to him an owners
duplicate certificate. The Register of Deeds shall note upon the original and duplicate
certificate the date of transfer, the volume and page of the registration book in which the
new certificate is registered and a reference by number to the last preceding certificate. The
original and the owners duplicate of the grantors certificate shall be stamped
cancelled. The deed of conveyance shall be filed and endorsed with the number
and

the

place

of

registration

of

the

certificate

of

title

of

the

land

conveyed. (Emphasis supplied)

As petitioner bases its right to the subject lot on theSupplemental Deed, it should
have presented it to the Register of Deeds to secure the transfer of the title in its
name. Apparently, it had not done so. There is nothing on OCT No. 5203 or on the
succeeding TCT No. T-375 either which shows that it had presented
the Supplemental Deed. In fact, there is absolutely no mention of a reference to said
document in the original and transfer certificates of title. It is in this regard that
the finding of the Court of Appeals concerning the absence of entries on the blanks

intended for the Book No. and Page No. gains significant relevance. Indeed, this
aspect fortifies the conclusion that the cancellation of OCT No. 5203 and the
consequent issuance of TCT No. T-375 in its place are not predicated on a valid
transaction.
What appears instead on OCT No. 5203 is the following pertinent entry:
Entry No. 1374: Kind: Order: Executed in favor of J.L.T. AGRO, INC.
CONDITIONS: Lost owners duplicate is hereby cancelled, and null and void
and a new Certificate of Title No. 375 is issued per Order of the Court of First
Instanceon file in this office.
Date of Instrument: November 12, 1979
Date of Inscription: Nov. 12, 1979 4:00 P.M.
(SGD.) MANUEL C. MONTESA
Acting Deputy Register of Deeds II
(Emphasis supplied)
52

What the entry indicates is that the owners duplicate of OCT No. 5203 was lost, a
petition for the reconstitution of the said owners duplicate was filed in court, and
the court issued an order for the reconstitution of the owners duplicate and its
replacement with a new one. But if the entry is to be believed, the court concerned
(CFI, according to the entry) issued an order for the issuance of a new title which is
TCT No. T-375 although the original of OCT No. 5203 on file with the Registry of
Deeds had not been lost.
Going by the legal, accepted and normal process, the reconstitution court may
order the reconstitution and replacement of the lost title only, nothing else. Since
what was lost is the owners copy of OCT No. 5203, only that owners copy could be
ordered replaced. Thus, the Register of Deeds exceeded his authority in issuing not
just a reconstituted owners copy of the original certificate of title but a new transfer
certificate of title in place of the original certificate of title. But if the court order, as
the entry intimates, directed the issuance of a new transfer certificate of titleeven
designating the very number of the new transfer certificate of title itselfthe order
would be patently unlawful. A court cannot legally order the cancellation and

replacement of the original of the O.C.T. which has not been lost, as the petition for
reconstitution is premised on the loss merely of the owners duplicate of the OCT.
53

Apparently, petitioner had resorted to the court order as a convenient contrivance

to effect the transfer of title to the subject lot in its name, instead of
the Supplemental Deedwhich should be its proper course of action. It was so
constrained to do because the Supplemental Deed does not constitute a deed of
conveyance of the registered land in fee simple in a form sufficient in law, as
required by Section 57 of P.D. No. 1529.
A plain reading of the pertinent provisions of theSupplemental Deed discloses
that the assignment is not supported by any consideration. The provision reads:
....
WHEREAS, in the Deed of Assignment of Assets with the Assumption of Liabilities
executed by Julian L. Teves, Emilio B. Teves and Josefa T. Escao at Dumaguete City on
16th day of November 1972 and ratified in the City of Dumaguete before Notary Public
Lenin Victoriano, and entered in the latters notarial register as Doc. No. 367; Page No. 17;
Book No. V; series of 1972, Julian L. Teves, Emilio B. Teves and Josefa T. Escao,
transferred, conveyed and assigned unto J.L.T. AGRO, INC., all its assets and liabilities as
reflected in the Balance Sheet of the former as of December 31, 1971.
WHEREAS, on the compromise agreement, as mentioned in the Decision made in the
Court of First Instance of Negros Oriental, 12th Judicial District Branch II, on Dec. 31,
1964 pertaining to Civil Case No. 3443 the following properties were adjudicated to Don
Julian L. Teves. We quote.
From the properties at Bais
Adjudicated to Don Julian L. Teves
....
Lot No. 63, Tax Dec. No. 33, Certificate of Title No. 5203, together with all
improvements. Assessed valueP2,720.00
....

WHEREAS, this Deed of Assignment is executed by the parties herein in order to effect
the registration of the transfer of the above corporation.
NOW, THEREFORE, for and in consideration of the above premises the ASSIGNOR
hereby transfers, conveys, and assigns unto J.L.T. AGRO, INC., the above described parcel
of
land[s]with a
fair
market
value
of
EIGHTY-FOUR
THOUSAND
PESOS (P84,000.00), Philippine Currency, and which transfer,
assignment shall become absolute upon signing. (Emphasis supplied)

conveyance

and

54

The amount of P84,000.00 adverted to in the dispositive portion of the instrument

does not represent the consideration for the assignment made by Don Julian.
Rather, it is a mere statement of the fair market value ofall the nineteen (19)
properties enumerated in the instrument, of which Lot No. 63 is just one, that were
transferred by Don Julian in favor of petitioner. Consequently, the testimony of
petitioners accountant that the assignment is supported by consideration cannot
prevail over the clear provision to the contrary in the Supplemental Deed.
55

The Court of Appeals, on the other hand, apparently considered the 1948
mortgage which is annotated on the back of the TCT No. T-375 as the consideration
for the assignment. However, the said annotation shows that the mortgage was
actually executed in favor of Rehabilitation Finance Corporation, not of
petitioner. Clearly, said mortgage, executed as it was in favor of the Rehabilitation
Finance Corporation and there being no showing that petitioner itself paid off the
mortgage obligation, could not have been the consideration for the assignment to
petitioner.
56

57

58

Article 1318 of the New Civil Code enumerates the requisites of a valid contract,
namely: (1) consent of the contracting parties; (2) object certain which is the subject
matter of the contract; and (3) Cause of the obligation which is established.
Thus, Article 1352 declares that contracts without cause, or with unlawful cause
produce no effect whatsoever. Those contracts lack an essential element and they
are not only voidable but void or inexistent pursuant to Article 1409, paragraph
(2). The absence of the usual recital of consideration in a transaction which
normally should be supported by a consideration such as the assignment made by
Don Julian of all nineteen (19) lots he still had at the time, coupled with the fact
that the assignee is a corporation of which Don Julian himself was also the
59

President and Director, forecloses the application of the presumption of existence of

consideration established by law.
60

Neither could the Supplemental Deed validly operate as a donation. Article 749 of
the New Civil Code is clear on the point, thus:
Art. 749. In order that the donation of the immovable may be valid, it must be made in a
public document, specifying therein the property donated and the value of the charges
which the donee must satisfy.
The acceptance may be made in the same deed of donation or in a separate public
document, but it shall not take effect unless it is done during the lifetime of the donor.
If the acceptance is made in a separate instrument, the donor shall be notified thereof in
an authentic form, and this step shall be noted in both instruments.

In Sumipat, et al. v. Banga, et al., this Court declared that title to immovable
property does not pass from the donor to the donee by virtue of a deed of donation
until and unless it has been accepted in a public instrument and the donor duly
notified thereof. The acceptance may be made in the very same instrument of
donation. If the acceptance does not appear in the same document, it must be made
in another. Where the deed of donation fails to show the acceptance, or where the
formal notice of the acceptance, made in a separate instrument, is either not given
to the donor or else not noted in the deed of donation and in the separate
acceptance, the donation is null and void.
61

In the case at bar, although the Supplemental Deed appears in a public

document, the absence of acceptance by the donee in the same deed or even in a
separate document is a glaring violation of the requirement.
62

One final note. From the substantive and procedural standpoints, the cardinal
objectives to write finis to a protracted litigation and avoid multiplicity of suits are
worth pursuing at all times. Thus, this Court has ruled that appellate courts have
ample authority to rule on specific matters not assigned as errors or otherwise not
raised in an appeal, if these are indispensable or necessary to the just resolution of
the pleaded issues. Specifically, matters not assigned as errors on appeal but
consideration of which are necessary in arriving at a just decision and complete
63

64

resolution of the case, or to serve the interest of justice or to avoid dispensing

piecemeal justice.
65

In the instant case, the correct characterization of the Supplemental Deed, i.e.,
whether it is valid or void, is unmistakably determinative of the underlying
controversy. In other words, the issue of validity or nullity of the instrument which
is at the core of the controversy is interwoven with the issues adopted by the parties
and the rulings of the trial court and the appellate court. Thus, this Court is also
resolute in striking down the alleged deed in this case, especially as it appears on its
face to be a blatant nullity.
66

WHEREFORE, foregoing premises considered, the Decision dated 30 September

1999 of the Court of Appeals is hereby AFFIRMED. Costs against petitioner J.L.T.
Agro, Inc.
SO ORDERED.
Puno (Chairman), Austria-Martinez, Callejo,
concur.

Sr.and Chico-Nazario,

JJ.,

Judgment affirmed.
Note.Although title does not vest ownership, a torrens certificate is evidence of
an indefeasible title to property in favor of the person whose name appears thereon.
(Liao vs. Court of Appeals, 323 SCRA 430 [2000])
o0o

Nos. L-46430-31. July 30, 1979.

FRANCISCA ALSUA-BETTS, JOSEPH O. BETTS, JOSE MADARETA,

ESTEBAN P. RAMIREZ, and THE REGISTER OF DEEDS FOR ALBAY
PROVINCE,

petitioners, vs. COURT

ALSUABUENVIAJE,

FERNANDO

OF

BUENVIAJE,

APPEALS,

FERNANDO

AMPARO
ALSUA,

represented by his guardian, CLOTILDE S. ALSUA and PABLO ALSUA,

respondents.

Settlement of Estate; Estoppel; The principle of estoppel is not applicable in probate

proceedings relative to question of testamentary capacity of a person.The principle of
estoppel is not applicable in probate proceedings, a ruling laid down in the case of Testate
Estate of the Late Procopia Apostol Benedicta Obispo, et al. vs. Remedios Obispo, 50 O.G.
614, penned by Justice J.B. L, Reyes, an eminent and recognized authority on Civil Law
when he was still in the Court of Appeals, and We quote: Finally, probate proceedings
involve public interest, and the application therein of the rule of estoppel, when it will block
the ascertainment of the truth as to the circumstances surrounding the execution of
testament, would seem inimical to public policy. Over and above the interest of private
parties is that of the state to see that testamentary dispositions be carried out if, and only
if, executed conformably to law.
Same; Factual findings of probate court and the Court of Appeak that will in question
was executed according to the formalities required by law conclusive on the Supreme Court
when supported by evidence.This cited portion of the appealed decision accepts as a fact
that the findings of the lower court declaring the contested will as having been executed
with all the formal requirements of a valid will, are supported by the evidence. This finding
is conclusive upon this Tribunal and We cannot alter, review or revise the same. Hence,
there is no further need for Us to dwell on the matter as both the lower court and the
respondent appellate court have declared that these are the facts and such facts are fully
borne and supported by the records. We find no error in the conclusion arrived at that the
contested will was duly executed in accordance with law. We rule that the questioned last
will and testament of Don Jesus Alsua fully complied with the formal requirements of the
law.

Same; The holding of the Court of Appeals that a person who executes a will is
permitted to partition his properties pursuant to Art. 1056 of the Old Civil Code even before
executing his will as long as he mentions this fact in his will is erroneous.We are not in
conformity with the holding of the respondent court that the extrajudicial partition of
November 25, 1949 which under the Old Civil Code was expressly prohibited as against
public policy had been validly ratified by the holographic will of Don Jesus executed on
January 5, 1955 and his codicil of August 14, 1956. Such a holding of the appellate court
that a person who executes a will is permitted to partition his properties pursuant to the
provisions of Article 1056 of the old Civil Code even before executing his will as long as he
mentions this fact in the will, is not warranted under the ruling of Legasto vs.
Verzosa, supra and the commentary of Manresa as quoted above. We rule, therefore, that
the respondent court erred in denying probate to the will of Don Jesus dated November 14,
1959; it erred in holding that Don Jesus being a party to the extrajudicial partition of 1949
was contractually bound by the provisions thereof and hence could not revoke his
participation therein by the simple expedience of making a new will with contrary
provisions or dispositions. It is an error because the socalled extrajudicial partition of 1949
is void and inoperative as a partition; neither is it a valid or enforceable contract because it
involved future inheritance; it may only be given effect as a donation inter vivos of specific
properties to the heirs made by the parents.
Same; Donations; There could be no valid donation of the free portion of the testators
estate where the properties being donated are not specifically described.Considering that
the document, the extrajudicial partition of November 25, 1949, contained specific
designation of properties allotted to each child, We rule that there was substantial
compliance with the rules on donations inter vivos under the old Civil Code (Article 633).
On the other hand, there could have been no valid donation to the children of the other half
reserved as the free portion of Don Jesus and Doa Tinay which, as stated in the deed, was
to be divided equally among the children for the simple reason that the property or
properties were not specifically described in the public instrument, an essential
requirement under Article 633.
Same; Same; Same.This other half, therefore, remained as the disposable free
portion of the spouses which may be disposed of in such manner that either of the spouses
would like in regards to his or her share in such portion, unencumbered by the provision
enjoining the last surviving spouse to give equally to the children what belongs or would
pertain to him or her. The end result, therefore, is that Don Jesus and Doa Tinay, in the
Deed of 1949, made to their children valid donations of only one-half of their combined
properties which must be charged against their legitime and cannot anymore be revoked
unless inofficious; the other half remained entirely at the free disposal of the spouses with
regards to their respective shares.

Same; A holographic will and codicil is revocable at any time by the testator.
Respondents insist that Doe Jesus was bound by the extrajudicial partition of November 25,
1949 and had in fact conformed to said partition by making a holographic will and codicil
with exactly the same provisions as those of Doa Tinay, which respondent court sustained.
We rule, however, that Don Jesus was not forever bound thereby for his previous
holographic will and codicil as such, would remain revokable at his discretion. Art. 828 of
the new Civil Code is clear: A will may be revoked by the testator at any time before his
death. Any waiver or restriction of this right to void. There can be no restriction that may
be made on his absolute freedom to revoke his holographic will and codicil previously made.
This would still hold true even if such previous will had as in the case at bar already been
probated.
Same; The Court may entertain intrinsic validity of a will in certain cases.Though
the law and jurisprudence are clear that only questions about the extrinsic validity of the
will may be entertained by the probate court, the Court had, on more than one occasion,
passed upon the intrinsic validity of a will even before it had been authenticated.
Same; A testator may disposed of the free portion of his estate an he wishes.The
legitimes of the forced heirs were left unimpaired, as in fact, not one of said forced heirs
claimed or intimated otherwise. The properties that were disposed of in the contested will
belonged wholly to Don Jesus Alsuas free portion and may be disposed of by him to
whomsoever he may choose. If he now favored Francisca more, as claimed by private
respondents, or Pablo as in fact he was, We cannot and may not sit in judgment upon the
motives and sentiments of Don Jesus in doing so. We have clearly laid down this rule
in Bustamante v. Arevalo, 73 Phil. 635.
Same; Test of testamentary capacity is at the time of making the will.The test of
testamentary capacity is at the time of the making of the will. Mere weakness of mind or
partial imbecility from disease of body or from age does not render a person incapable of
making a will.
Same; Fact that testator did not cause his will to be probated during his lifetime, while
his previous holographic will and codicil were probated while he was alive does not mean
said testator lacks the requisite testamentary capacity.We agree with the petitioner that
these details which respondent court found difficult to reconcile with the ordinary course of
things and of life are mere conjectures, surmises or speculations which, however, do not
warrant or justify disallowance of the probate of the will of Don Jesus. The fact that Don
Jesus did not cause his will to be probated during his lifetime while his previous
holographic will and codicil were duly probated when he was still alive is a mere
speculation winch depends entirely on the discretion of Don Jesus as the testator. The law

does not require that a will be probated during the lifetime of the testator and for not doing
so there cannot arise any favorable or unfavorable consequence therefrom. The parties
cannot correctly guess or surmise the motives of the testator and neither can the courts.
Such surmise, speculation or conjecture is no valid and legal ground to reject allowance or
disallowance of the will. The same thing can be said as to whatever reason Don Jesus had
for selling the properties to his daughter Francisca when he had already assigned the same
properties to her in his will. While We can speculate that Don Jesus desired to have
possession of the properties transferred to Francisca after the sale instead of waiting for his
death may be a reasonable explanation or speculation for the act of the testator and yet
there is no cer-tainty that such was actually the reason. This is as good a conjecture as the
respondents may offer or as difficult to accept which respondent court believes. A conjecture
is always a conjecture; it can never be admitted as evidence.
Appeal; Factual findings of the Court of Appeals are not absolutely binding on the
Supreme Court; There are exceptions to the general rule.But what should not be ignored by
lawyers and litigants alike is the more basic principle that the findings of fact described as
final or conclusive are those borne out by the record or those which are based upon
substantial evidence. The general rule laid down by the Supreme Court does not declare the
absolute correctness of all the findings of fact made by the Court of Appeals. These are
exceptions to the general rule, where We have reviewed and revised the findings of fact of
the Court of Appeals.
Sales; The sales in question in the case at bar are valid.The claim of the private
respondents that the sales were fictitious and void for being without cause or consideration
is as weak and flimsy as the ground upon which the respondent court upheld said claim on
the basis that there was no need for funds in Don Jesus old age aside from the speculation
that there was nothing in the evidence that showed what motivated Don Jesus to change his
mind as to favor Francisca and discriminate against the other children. The two contracts of
sale executed by Don Jesus in favor of Francisca are evidence by Exhibits U and W, the
genuineness of which were not at all assailed at any time during this long drawn-out
litigation of 15 years standing. That the consideration stated in the contracts were paid is
also sufficiently proved as the receipts thereof by Don Jesus were even signed by one of the
private respondents, Pablo Alsua, as a witness. The latter cannot now deny the payment of
the consideration. And even if he now allege that in fact no transfer of money was involved,
We find his allegation belied by Exhibits X-3 and X-5, which show that the checks of
Francisca made payable to Don Jesus were in fact given to Don Jesus as he endorsed them
on the back thereof, and most specifically Exhibit A in the annulment case, which proved
that Don Jesus actually used Exhibit X-1 to complete payment on the estate and
inheritance tax on the estate of his wife to the Bureau of internal Revenue.

Same; Mere inadequacy of price does not vitiate a contract of sale.Private respondents
further insist that the sales were fraudulent because of the inadequacy of the given price.
Inadequacy of consideration does not vitiate a contract unless it is proven, which in the case
at bar was not, that there was fraud, mistake or undue influence. (Article 1355, New Civil
Code). We do not find the stipulated price as so inadequate to shock the courts conscience,
considering that the price paid was much higher than the assessed value of the subject
properties and considering that the sales were effected by a father to her daughter in which
case filial love must be taken into account.

APPEAL by certiorari from the decision of the Court of Appeals.

The facts are stated in the opinion of the Court.
Rafael Triumfante for petitioners.
Sabido-Sabido & Associates and Madrid Law Office for private respondents.
GUERRERO, J.:
This is an appeal by certiorari from the decision of the Court of Appeals in CAG.R. Nos. 54492-R and 54493-R which reversed the decision of the Court of First
Instance of Albay allowing the probate of the will of Don Jesus Alsua in Special
Proceedings No. 699 and dismissing the complaint in Civil Case 3068 after
declaring the two deeds of sale executed by Don Jesus Alsua legal and valid. The
respondent court denied the probate of the will, declared null and void the two sales
subject of the complaint and ordered the defendants, petitioners herein, to pay
damages to the plaintiffs, now the private respondents, the sum of Five Thousand
Pesos (P5,000.00), to render an accounting of the properties in their possession and
to reimburse the latter the net gain in the proportion that appertains to them in the
properties from the date of the filing of the complaint up to complete restoration
plus Fifty Thousand Pesos (P50,000.00) as attorneys fees and costs.
1

The antecedent events leading to the filing of these two consolidated actions are
the following:
On November 25, 1949, Don Jesus Alsua and his wife, Doa Florentina Ralla,
both of Ligao, Albay, together with all their living children, Francisca Alsua-Betts,
Pablo Alsua, Fernando Alsua thru this judicial guardian Clotilda Samson, and
Amparo Alsua de Buenviaje, entered into a duly notarized agreement, Escritura de

Particion Extrajudicial (Exhibit 8), over the then present and existing properties of
the spouses Don Jesus and Doa Florentina enumerated in a prepared inventory,
Exhibit 8-A, the essential features of which are stated in private respondents Brief,
pp. 26-29. To wit:
(1)Basis of the partition: Inventory (Annex A) of all the properties of the Alsua spouses,
which inventory consists of 97 pages, all of them signed by the spouses and all the
abovenamed heirs in the left margin of every page (parafo primero).
2)An acknowledgment of the spouses that all the properties described in the inventory
(Annex A) are conjugal properties with the exception of five parcels of land identified with
the figures of 1 to 5 and 30 shares of San Miguel Brewery stock which are paraphernal
properties of the late Doa Tinay (segundo parafo).
3)An acknowledgment that during their marriage, they had nine children but five of
them died minors, unmarried (parafo tercero y cuatro).
4)An acknowledgment that on the basis of Article 1056 of the Civil Code (old) to avoid
possible misunderstanding among their children concerning the inheritance they are
entitled to in the event of death of one of them they have decided to effectuate an
extrajudicial partition of all the properties described in Annex A thereto under the
following terms and conditions: (Parafo quinto):
To Francisca Alsua, married to Joseph O. Betts were allotted or assigned all the real
properties with the improvements thereon specifically described from pages 112 of said
inventory or, 34 parcels of land with a total land area of 5,720,364 sq. meters, with a book or
appraised value of P69,740.00.
To Pablo Alsua, married to Teresa Locsin were allotted or assigned all the real
properties with the improvements thereon specifically described from pages 12 - 20 of said
inventory or, 26 parcels of land with a total land area of 5,679,262 sq. meters, with a book or
appraised value of P55,940.00.
To Fernando Alsua, married to Clotilde Samson were allotted or assigned all the real
properties with the improvements thereon specifically described from pages 20 - 33 of said
inventory or, 47 parcels of land with a total land area of 6,639,810 sq. meters, with a book or
appraised value of P89,300.00.
To Amparo Alsua, married to Fernando Buenviaje were allotted or assigned all the real
properties with the improvements thereon specifically described from pages 33 - 47 of said

inventory or, 47 parcels of land with a total land area of 5,630,715 sq. meters, with a book or
appraised value of P58,830.00.
(a)Each and every one of the heirs named above acknowledge and admit that the totality
of the properties allotted and adjudicated to the heirs as described in the preceding
paragraph, constitute onehalf of the properties described in Annex A, including any
amount of cash deposited.
(b)That all the heirs acknowledge and admit that all the properties assigned to them as
their hereditary portion represent one-half not only of the conjugal properties but includes
the paraphernal propertieswaiving now and forever any complaint or claim they have or
they may have concerning the amount, value, extension and location of the properties that
are allotted to each and everyone. They also waive any claim they have or they may have
over the remaining portion of the properties, which spouses reserved for themselves.
(c)That in case of death of one of the spouses, each and everyone of the heirs
acknowledge that the properties which are left in the possession of the surviving spouse,
including any amount in cash, are even less than the one-half that should correspond in
absolute ownership as his legitimate participation in the conjugal properties. In
consequence they waive any claim that they have or may have over said portion of said
properties or any amount in cash during the lifetime of the surviving spouse, including any
right or claim they have or they may have over the paraphernal properties of Doa Tinay in
the event the surviving spouse is Don Jesus.
(d)The spouses on their part in case of death of any one of them, the surviving spouse
waives any claim he or she may have over the properties assigned or adjudicated to the
heirs under and by virtue of this deed. The properties which were reserved for them (the
spouses) should be considered as his or her legitimate participation in the conjugal
properties and the fair compensation of his or her usufruct on the properties that the
surviving spouse reserved for himself or herself which shall be distributed in equal shares
among the heirs upon his or her death unless said properties of some of them have been
disposed of during the lifetime of the surviving spouse.
(e)Any heir who may dare question the validity and legitimacy of the provision contained
herein shall be under obligation to pay to the other heirs, in the concept of damages and
prejudice, the sum of P5,000.00 plus attorneys fees.
(f)The provisions of this deed shall bind, the successors of the herein heirs.
(g)In the event of death of one of the spouses, the properties assigned or adjudicated to
each and everyone of the heirs shall be considered as his share or participation in the estate

or as his inheritance left by the deceased and each heir shall become the absolute owner of
the properties adjudicated to him under this deed.

On January 5, 1965, Don Jesus and Doa Florentina, also known as Doa Tinay
separately executed their respective holographic wills (Exhs. 6-B and 7-B), the
provisions of which were in conformity and in implementation of the extrajudicial
partition of November 25, 1949. Their holographic wills similarly provided for the
institution of the other to his or her share in the conjugal properties, the other half
of the conjugal assets having been partitioned to constitute their legitime among
their four living children in the Extrajudicial Partition of 1949. The wills also
declared that in the event of future acquisitions of other properties by either of
them, one-half thereof would belong to the other spouse, and the other half shall be
divided equally among the four children. The holographic will of Doa Tinay written
in Spanish reads, as translated:
TESTAMENT
I, FLORENTINA R. DE ALSUA, 67 years old, Filipina, married to Don Jesus Alsua,
resident of and with postal address in the Municipality of Ligao, Province of Albay,
Philippines, being in the full possession of my mental and physical faculties freely and
spontaneously execute this my last will and testament in my handwriting and signed by me
and expressed in the Spanish language which I speak, write and understand, this 5th day of
January, 1955 in the Municipality of Ligao, Province of Albay, and in which I ordain and
provide:
First: That in or about the year 1906 I was married to my husband Don Jesus Alsua
and begot nine (9) children with him, four (4) of whom are still living and they are Francisca
Alsua, Pablo Alsua, Fer-nando Alsua and Amparo Alsua. The other five (b) died during their
minority, single and without children.
Second: That after my marriage to my husband Don Jesus Alsua and during our
conjugal union, and as a result of our efforts and industry, we were able to acquire conjugal
properties consisting of abaca (abales) and cacao lands and urban lands registered in the
office of the Registry of Property of the Province of Albay and in the City of Manila.
Third: That I institute as my heirs with right to inherit the following: my spouse Don
Jesus Alsua, one-half (1/2) of my properties, real and personal, and the other half, to my
children Francisca Alsua, married to Joseph O. Betts, Pablo Alsua, Fernando Alsua,
married to Clotilde Samson, and Amparo Alsua, married to Fernando Buenviaje, in equal

parts. It is to be understood, however, that the other half that corresponds as legitime to my
above named children have already been given to them, pursuant to a document dated
November 25, 1949 and ratified on the same day, month and year before Notary Public
Segundo G. Flores (Reg. No. 525; Pag, 15; Lib. II; Series of 1,949) enjoining each and
everyone of them to respect and faithfully comply with each and every clause contained in
the said document.
Fourth: That should I acquire new properties after the execution of this testament, the
same shall he partitioned among my spouse and above named children or the children
mentioned in above par. 3 in the same proportion, that is, one-half (1 1/2) to my spouse; and
the other half to my children in equal parts.
Fifth: That I name as my executor my husband Don Jesus Alsua without having to post
any bond.
IN VIRTUE WHEREOF, I hereby sign in my own handwriting this testament on this 5th
day of January, 1955 in the Municipality of Ligao, Province of Albay, Philippines.
(SGD.) FLORENTINA R. DE ALSUA
(Joint Record on Appeal, pp. 420-423, CA-G.R. No. 54492-R)

As previously stated, Don Jesus Alsua executed a separate but similar

holographic will on the same day, Jan. 5, 1955 in exactly the same terms and
conditions as the above will of his wife.
On May 21, 1956, the spouses Don Jesus and Doa Tinay filed before the Court of
First Instance of Albay their respective petitions for the probate of their respective
holographic wills which were docketed as Special Proceedings No. 484 (Jesus Alsua,
Petitioner) and Special Proceedings No. 485 (Doa Florentine Ralla de Alsua,
Petitioner).
On August 14, 1956, the spouses Don Jesus and Doa Tinay executed their
mutual and reciprocal codicils amending and supplementing their respective
holographic wills. Again, the codicils similarly acknowledged and provided that onehalf of all the properties of the spouses, conjugal and paraphernal, had been
disposed of, conveyed to and partitioned among their legitimate heirs in the
Escritura de Particion of November 25, 1949, but that they reserved for
themselves (the spouses Don Jesus and Doa Tinay) the other half or those not

disposed of to the said legitimate heirs under the above agreement of partition, and
that they mutually and reciprocally bequeathed unto each other their participation
therein as well as in all properties which might be acquired subsequently. Each
spouse also declared that should she or he be the surviving spouse, whatever
belongs to him or her or would pertain to him or her, would be divided equally
among the four children. It was also declared in both codicils that upon the death of
either of the spouses, the surviving spouse was designated mutually and
reciprocally as the executor or administrator of all the properties reserved for
themselves.
The codicil executed by Doa Tinay written in Spanish reads, as translated:
CODICIL
This codicil supplements and amends the preceding testament. That my spouse and I
have agreed to divide the properties which we have acquired into 2 parts. The 1/2 that
would correspond to me covers all the properties that I have partitioned among my children
in the Document of Partition dated November 25, 1949 before Notary Public Segundo G.
Flores, Jr. (Doc. No. 525; Pag. No. 15; Lib. No. II; Series of 1949) (and) even as the
properties which by reason of this testament I leave to my husband as his share and the
other half that corresponds to my husband constitutes all the properties that up to now
have not been disposed of, particularly the urban lands situated in Legaspi, Albay, Ligao of
the Province of Albay and in the City of Manila, with the exception of that portion that I
bequeath to my husband as his inheritance ans his legitimate.
That I institute as my heirs with the right to inherit my husband Don Jesus Alsua and
my children Francisca Alsua, Pablo Alsua, Fernando Alsua and Amparo Alsua. I leave to my
aforecited children all the properties described in the above mentioned Document of
Partition dated November 25, 1949 which correspond to each one of them and in the profits
(fruits) expressed in the same, and in the event that the properties granted to one or any of
my children should exceed in quantity or value those corresponding to another or others, I
hereby declare that it is my will that the same be divided among my children as their
inheritance from the free portion of my property.
I leave to my spouse Don Jesus Alsua as his legitime and as his inheritance the part of
the free portion of my property which have not been allocated in favor of my children in the
Document of Partition aforecited and that which should exceed 1/2 of the conjugal property
of gains that pertains to him as above stated, including all those properties which we shall
acquire after the execution of this document.

In case it should be Gods will that I survive my spouse, I hereby declare that it is my
will that any and all kinds of property that pertain to me or would pertain to me, which
have not been disposed of pursuant to the partition, should be divided equally among my
above-mentioned heirs after my death.
Ligao, Albay, Philippines, August 14, 1956.
(SGD.) FLORENTINA RALLA DE ALSUA
(Joint Record on Appeal, pp. 423-425, CA-G.R. No. 54492-R)

And as stated previously, on the same day, August 14, 1956, Don Jesus executed
also a separate but similar codicil in exactly the same terms and conditions as the
above codicil of his wife. Also on the same day of August 14, 1956, the spouses Don
Jesus and Doa Tinay both filed their respective supplemental petitions for the
probate of their respective codicils in the probate proceedings earlier filed. On
February 19, 1957, their respective holographic wills and the codicils thereto were
duly admitted to probate.
Upon the death of Doa Tinay on October 2, 1959, Don Jesus was named
executor to serve without bond in an order issued by the probate court on October
13, 1959. Letters testamentary having been issued in favor of Don Jesus, he took his
oath of office and performed his duties as such until July 1, 1960.
Thereafter in the early part of November, 1959, Don Jesus cancelled his
holographic will in the presence of his bookkeeper and secretary, Esteban P.
Ramirez, whom he instructed to make a list of all his remaining properties with
their corresponding descriptions. His lawyer, Atty. Gregorio Imperial, Sr. was then
instructed to draft a new will which was duly signed by Don Jesus and his attesting
witnesses on November 14, 1959 at his home in Ligao, Albay, This notarial will and
testament (Exh. A) of Don Jesus executed, on November 14, 1959 had three
essential features: (a) it expressly cancelled, revoked and annulled all the provisions
of Don Jesus holographic will of January 5, 1955 and his codicil of August 14, 1956;
(b) it provided for the collation of all his properties donated to his four living
children by virtue of the Escritura de Particion Extra-judicial of 1949, and that
such properties be taken into account in the partition of his estate among the
children; and (c) it instituted his children as legatees/devisees of certain specific
properties, and as to the rest of the properties and whatever may be subsequently

acquired in the future, before his death, were to be given to Francisca and Pablo,
naming Francisca as executrix to serve without a bond.
After all debts, funeral charges and other expenses of the estate of Doa Tinay
had been paid, all her heirs including Don Jesus, submitted to the probate court for
approval a deed of partition executed on December 19, 1959 (Exh. 7-Q) and which
essentially confirmed the provisions of the partition of 1949, the holographic will
and codicil of Doa Tinay. On July 6, 1960, the court approved the partition of 1959
and on January 6, 1961 declared the termination of the proceedings on the estate of
Doa Tinay.
On May 6, 1964, Don Jesus Alsua died.
On May 20, 1964, petitioner herein Francisca Alsua Betts, as the executrix
named in the will of November 14, 1959, filed a petition for the probate of said new
will of Don Jesus Alsua before the Court of First Instance of Albay and was docketed
as Special Proceedings No. 699, Oppositions thereto were filed by Pablo, Amparo
and Fernando, thru his judicial guardian Clotilde Samson, on the following grounds:
(a) that Don Jesus was not of sound and disposing mind at the time of the execution
of the alleged will; (b) that the will was executed under duress or influence of fear or
threats; or it was procured by undue and improper pressure and influence on the
part of the main beneficiaries and of person or persons in collusion with them, or
the signature of the testator was secured by or thru fraud; (c) that the will was not
executed according to the formal requirements of the law; and (d) that the alleged
will subject; of probate contravened the Extrajudicial Partition of 1949 agreed upon
by him, his deceased spouse, Doa Tinay, and all his children, Francisca, Pablo,
Amparo and Fernando thru his judicial guardian Clotilda Samson, and also
contravened Don Jesus own probated holographic will and codicil of 1955 and 1958,
respectively, essentially confirming and implementing the said partition of 1949
which had already been partially executed by all the signatories thereto in the
partition of the estate of Doa Tinay in December, 1959.
On the basis of Franciscas designation as executrix in the new will dated
November 14, 1959, the Probate Court appointed her Administratrix of the estate of
her late father, Don Jesus Alsua. She then filed with the Probate Court an inventory
of the properties of the estate which, according to the oppositors therein (the private
respondents now) did not include some properties appearing in the agreement of

November 25, 1949 or in the inventory attached thereto as Annex A and in the
Escritura de Particion of December 19, 1959 as belonging to or should pertain to
Don Jesus. According to the oppositors, these properties consist of thirty-three (33)
premium agricultural lots with a total land area of 1,187,970 square meters, or
approximately 119 hectares and with a total assessed value of P48,410.00 or a
probable total market value of P238,000.00 at only P2,000.00 per hectare, and four
(4) commercial urban lots ideally located in the business section of Legaspi City
including the lot and the building presently occupied by the well-known Mayon
Hotel with an assessed value of approximately P117,260.00 or a probable market
value at the time of P469,040.00. It appearing from the new will that these
properties were bequeathed to Pablo Alsua and Francisca Alsua-Betts, specifically, 3
parcels of the 33 agricultural lands to Pablo and the rest to Francisca, the
oppositors also raised in issue the non-inclusion of said properties in the inventory
of the estate of their late father, In answer, Francisca claimed ownership over the
same, alleging that she bought the properties from their father and presenting the
two Deeds of Sale now being assailed, one dated August 26, 1961 purporting to show
the sale of the 33 parcels of agricultural land to Francisca by their father for the
price of P70,000.00 and the other dated November 26, 1962 evidencing the sale of
the four urban lots for the sum of P80,000.00. Claiming fraud in the sales, the
oppositors filed Civil Case No. 3068, seeking the annulment of the aforesaid two
deeds of sale, with damages, which upon agreement of the parties was then jointly
heard and tried with Special Proceedings No. 699 for probate of the Last Will and
Testament of Don Jesus executed on November 14, 1959.
After a joint hearing of the merits of these two eases, the Court of First Instance
of Albay promulgated a decision on January 15, 1973, the dispositive portion of
which states:
WHEREFORE, in view of all the foregoing, judgment is hereby rendered, to wit:
1.In Special Proceedings 699, the Court hereby APPROVES and ALLOWS the Will
executed by Don Jesus Alsua at Ligao, Albay, on November 14, 1959, which had been
marked as Exhibit A, consisting of nine (9) pages, and orders that the same be made the
basis for division and distribution of the estate of said testator;
2.In Civil Case 3068, the Court hereby dismisses the complaint and holds that the sale
on August 26, 1961 (Exh. U) and the sale on November 26, 1962 (Exh. W), are lawful and
valid sales and accordingly conveyed title to the VENDEE thereof. The Plaintiffs in Civil

Case 3068, are ordered jointly and severally to pay to the defendant, Francisca Alsua Betts
Fifty Thousand Pesos (P50,000.00) as damages and Fifty Thousand (P50,000.00) Pesos for
attorneys fees or a total of One Hundred Thousand Pesos (P100,000.00) and to pay the
costs.

On appeal by herein respondents to the Court of Appeals, the court reversed the
appealed decision in a judgment rendered on April 4, 1977, the dispositive portion of
which states, as translated, thus
IN VIEW OF THE FOREGOING, this Tribunal finds itself constrained to set aside as it
hereby sets aside the decision appealed from in the following manner: (1) in Special
Proceedings 699, the probate of the will, Exh. A, is hereby denied; (2) in Civil Case No.
3068, Exhs. U and W and the titles issued on the basis thereof are hereby declared null and
void, ordering the appellees Francisca Alsua and Joseph Betts to pay to the plaintiffs in the
concept of fixed damages, the sum of P5,000.00 and to render an accounting of properties in
their possession and to reimburse the plaintiffs the net gain, in the proportion that
appertains to them in the properties subject of litigation in Civil Case No. 3068 from the
date of the filing of this complaint, up to the complete restoration of the properties
pertaining to (plaintiffs) pursuant to Article 2208 of the New Civil Code, paragraph 11,
ordering them in addition to pay to the plaintiffs and oppositors the sum of P50,000.00 as
attorneys fees, and the costs.

Hence, the petition at bar assailing the respondent courts decision on four assigned
errors, to wit:
I.The respondent Court of Appeals erred in not affirming the findings of the
probate court (Special Proceedings No. 699) that private respondents, oppositors to
the probate of the will, are in estoppel to question the competence of testator Don
Jesus Alsua.
II.The respondent Court of Appeals grossly erred in holding that testator Don
Jesus Alsua cannot revoke his previous will.
III.The respondent courts finding is grounded entirely on speculation, surmises
or conjectures resulting in a gross misapprehension of facts.
IV.The respondent court grossly erred in annulling the sales of August 26, 1961
(Exh. U), and of November 26, 1962 (Exh. W).

On the first issue of estoppel raised in the assignment of errors, We hold that the
same is of no moment. The controversy as to the competency or incompetency of Don
Jesus Alsua to execute his will cannot be determined by acts of the herein private
respondents as oppositors to the will in formally agreeing in writing jointly with the
petitioner Francisca Alsua de Betts that their father, Don Jesus Alsua, be appointed
by the court executor of the will of their mother in Special Proceedings No. 485,
Testate Estate of Doa Florentina Ralla de Alsua and in subsequently petitioning
the court not to require Don Jesus Alsua to file any accounting as executor in the
proceedings, which petitioners claim and was upheld by the trial court as
constituting estoppel on the part of the private respondents from questioning the
competence of Don Jesus Alsua.
The principle of estoppel is not applicable in probate proceedings, a ruling laid
down in the case of Testate Estate of the Late Procopia Apostol. Benedicta Obispo, et
al. vs. Remedios Obispo, 50 O.G. 614, penned by Justice J.B.L, Reyes, an eminent
and recognized authority on Civil Law when he was still in the Court of Appeals,
and We quote:
Finally, probate proceedings involve public interest, and the application therein of the
rule of estoppel, when it will block the ascertainment of the truth as to the circumstances
surrounding the execution of a testament, would seem inimical to public policy. Over and
above the interest of private parties is that of the state to see that testamentary
dispositions be carried out if, and only if, executed conformably to law.
The Supreme Court of New York aptly said in Re Canfields Will, 300 N.Y.S., 502:
The primary purpose of the proceeding is not to establish the existence of the right of any living
person, but to determine whether or not the decedent has performed the acts specified by the
pertinent statutes, which are the essential prerequisites to personal direction of the mode of
devolution of his property on death. There is no legal but merely a moral duty resting upon a
proponent to attempt to validate the wishes of the departed, and he may and frequently does receive
no personal benefit from the performance of the act.
One of the most fundamental conceptions of probate law, is that it is the duty of the court to
effectuate, in so far as may be compatible with the public interest, the devolutionary wishes of a
deceased person (Matter of Watsons Will, 262 N.Y., 284, 294, 186, N.E., 787; Matter of Marrimans
Estate, 124 Misc. 320, 325, 208, N.Y.S., 672; Foley, S., affirmed 217 app. Div., 733, 216 N.Y.S., 126,
Henderson, S., Matter of Draskes Estate, 160 Misc. 587, 593, 290, N.Y.S., 581). To that end, the
court is, in effect, an additional party to every litigation affecting the disposal of the assets of the
deceased. Matter of Van Valkenburghs Estate, 164 Misc. 295, 298, N.Y.S., 219.

The next issue that commands Our attention is whether the respondent court erred in
not allowing the probate of the last will and testament of Don Jesus Alsua. Petitioners
claim that the disallowance was based on speculations, surmises or conjectures,
disregarding the facts as found by the trial court. The Civil Court is very clear and explicit
in providing the cases where a will may be disallowed under Article 839 which provides as f
allows:
Art. 839. The will shall be disallowed in any of the following cases:
(1)If the formalities required by law have not been complied with;
(2)If the testator was insane, or otherwise mentally incapable of making a will, at the
time of its execution;
(3)If it was executed through force or under duress, or the influence of fear, or threats;
(4)If it was procured by undue and improper pressure and influence, on the part of the
beneficiary or of some other person;
(5)If the signature of the testator was procured by fraud;
(6)If the testator acted by mistake or did not intend that the instrument he signed
should be his will at the time of affixing his signature thereto.

The issue under consideration appears to Us to have been answered by the

respondent court itself when it accepted the findings of the trial court on the due
execution of the questioned will and testament of Don Jesus, declaring:
x x x and going back to the previous question, whether the questioned will and
testament of November 14, 1959, Exh. A, was executed in accordance with Arts. 805-809 of
the New Civil Code,this Tribunal from the very beginning accepts the findings of the
inferior court concerning the question,
On October 2, 1959, Doa Florentine died at Ligao, Albay. About 2 weeks after said death of his
wife, Don Jesus Alsua decided to make a new will, thereby revoking and cancelling his previous
holographic will which he made on January 5, 1955 and also its codicil dated August 14, 1956. In the
presence of his bookkeeper and secretary, Esteban P. Ramirez, he crossed out in ink each and every
page of said page he wrote on each page the word cancelado, and affixed his signature thereon
(Exh. V-5, V-6, consecutively up to and including Exh. V-14). He then instructed Ramirez to make a
list of all his properties with their corresponding descriptions.

Meanwhile, Don Jesus Alsua sent for his lawyer, Don Gregorio Imperial, Sr. and the latter came
accompanied by his son, Atty. Jorge S. Imperial, who, incidentally, is now a judge of the Court of
First Instance of Naga City, Camarines Sur. Don Jesus informed his lawyers that he wanted to make
a new will, and accordingly gave more detailed instructions as to how he wanted to divide his
properties among his four children. He handed to them a list and on the left he indicated the name of
the child to whom the listed properties shall pertain. Atty. Jorge Imperial took notes of the
instructions of Don Jesus Alsua. To Don Jesus, Spanish is his major language, as in fact his
conversations with Don Gregorio are always in Spanish. A few days before November 14, 1959, Atty.
Jorge S. Imperial showed to Don Jesus the semi-final draft of the will and after reading it Don Jesus
said that it was as directed by him, and after making a few minor corrections, he instructed Atty.
Jorge S. Imperial to put the will in final form. He further told Atty. Jorge Imperial that the signing of
the will should be at his home in Ligao, in the morning of November 14, 1959, and that the witnesses
should be Mr. Ramon Balana, the then Register of Deeds of Albay; Mr. Jose Madarieta who is a
friend of the family; and Mr. Jose Gaya who is a sort of employee of Don Jesus.
Thus in the morning of November 14, 1959, Don Gregorio and Atty. Jorge S. Imperial, riding in a
sedan, stopped at the Legaspi residence of Mr. Ramon Balana, and informed the latter that Don
Jesus was requesting him to be one of the attesting witnesses to his will. Mr. Balana, having a very
high regard for Don Jesus, considered it an honor to be so asked, and gladly went with the Imperials.
They arrived at the residence of Don Jesus at Ligao; Albay, almost ten oclock of that morning, and
they were ushered in by Mr. Jose Gaya, and the latter requested them to be seated at the usual
receiving room on the ground floor while he announced their arrival to Don Jesus who was on the
second floor. Soon Don Jesus came down, carrying with him the will to be signed placed inside a
cartolina folder. He greeted Don Gregorio, Mr. Balan, and Atty. Imperial and immediately joined
them in conversation, Mr. Gaya called for Mr. Jose Madarieta, whose residence is just across the road
from the house of Don Jesus. Mr. Madarieta was already informed by Don Jesus himself about the
fact of signing the will that morning, and so, on being advised by Mr. Gaya that the Imperials had
already arrived, Madarieta proceeded to the residence of Don Jesus, without much delay. With the
coming of Madarieta and the coming back of Gaya, there were now six people gathered in the living
room, namely: Don Jesus Alsua, Don Gregorio Imperial, Atty. Jorge S. Imperial, Mr. Ramon Balana,
Mr. Jose Madarieta, and Mr. Jose Gaya. All the witnesses who testified for the petitioner declared
that Don Jesus was in bright and lively conversation which ran from problems of farming and the
merits of French-made wines. At 11:00 oclock, Don Gregorio made a remark that it is about time to
do what they were there for, and this was followed by a more or less statement from Jesus, who said:
Precisamente es por lo que he llamado a ustedes que esten presentes para ser testigos de mi ultimo
voluntad y testamento que ha sido preparado por el abogado Sr. Gregorio Imperial segun mis
instrucciones cuyo documento tengo aqui conmigo y encuentro que, despues de lo he leido, esta
satisfactoriamente hecho segun mis instrucciones, Como saben ustedes tengo cuatro (4) hijos todos ellos.
(pp. 43-44, t.s.n., hearing of December 7, 1967, Sarte.

On request of Don Jesus, all of them moved to the big round table on another part of the same
sala for convenience in signing because there were chairs all around this table. The will which

consisted of nine pages, with a duplicate, and triplicate was laid on the round table and the signing
began, with Atty. Jorge S. Imperial assisting each person signing by indicating the proper place
where the signature shall be written. Don Jesus, as testator, signed first. After signing the original
and the two other sets, the three sets were then passed to Mr. Ramon Balana who signed as attesting
witness. After Mr. Balana, Mr. Jose Madarieta signed next as another attesting witness, and when
Mr. Madarieta finished signing all the three sets, the same were passed to Mr. Jose Gaya who also
signed as the third attesting witness. On each of the three sets, Don Jesus signed ten times,one on
the margin of each of the nine pages, and at the end of the instrument proper. Each of the three
attesting witnesses (Balana, Madarieta and Gaya) signed eleven times on each set,one on the
margin of each of the nine pages, one at the end of the instrument proper and one below the
attestation clause. The original will was marked as Exh. A (or set A); the duplicate as Exh. K (or set
K) and the triplicate of Don Jesus, Mr. Balana, Mr. Madarieta, and Mr. Gaya were identified by Mr.
Balana, Mr. Madarieta and Atty. (now Judge) Imperial. It was also clearly established that when Don
Jesus signed the will, Mr. Balana, Mr. Madarieta, and Mr. Gaya were present and witnessed said
signing, and that when each of these three witnesses was signing, Don Jesus and the two other
attesting witnesses were present and witnessing said signing. The signing by the testator and the
attesting witnesses having been completed, Atty. Jorge S. Imperial, as Notary Public with
commission for the entire province of Albay, notarized the will, and sealed it with his notarial seal,
which seal he brought along that morning. After all the three sets were notarized, they were all given
back to Don Jesus who placed them inside the same folder. At that moment, it was already about
12:30 P.M. and Don Jesus invited all of them to lunch, which invitation was gladly accepted by all of
them. (pp. 474-480, Joint Record on Appeal in CA-G.R. No. 54492-R)

which findings are supported by the evidence,it is quite difficult to conclude that the
same had not complied with the requirements of Arts. 804-806 of the New Civil Code. x x x
(CA Decision, pp. 13-16, as translated).

This cited portion of the appealed decision accepts as a fact that the findings of
the lower court declaring the contested will as having been executed with all the
formal requirements of a valid will, are supported by the evidence. This finding is
conclusive upon this Tribunal and We cannot alter, review or revise the same.
Hence, there is no further need for Us to dwell on the matter as both the lower court
and the respondent appellate court have declared that these are the facts and such
facts are fully borne and supported by the records. We find no error in the
conclusion arrived, at that the contested will was duly executed in accordance with
law. We rule that the questioned last will and testament of Don Jesus Alsua fully
cornplied with the formal requirements of the law.
Respondent court, however, denied probate of the will after noting certain
details which were a little bit difficult to reconcile with the ordinary course of things

and of life. First was the fact that the spouses Don Jesus and Doa Tinay together
with their four children Francisca, Pablo, Amparo and Fernando had executed the
Extrajudicial Partition of November 25, 1949 (Exh. A) which divided the conjugal
properties of the spouses between the spouses themselves and the children under
the terms and conditions and dispositions hereinbefore stated and to implement its
provisions, Don Jesus and Doa Tinay subsequently executed separately their
respective holographic wills both dated January 5, 1955 and codicils dated August
14, 1956 with the same terms and conditions as reproduced herein earlier. Both
holographic wills and codicils having been probated thereafter and upon the death
of Doa Tinay, Don Jesus was appointed executor of the will and in due time the
partition of the properties or estate of Doa Tinay was approved by the probate
court on July 6, 1960. The respondent court ruled that the Extrajudicial Partition of
November 25, 1949 was an enforceable contract which was binding on Don Jesus
Alsua as the surviving spouse, barring him from violating said partition agreement,
barring him from revoking his holographic will of January 5, 1955 and his codicil of
August 14, 1956, and further barring him from executing his new will and
testament of November 14, 1959, now the subject of the probate proceedings
elevated to this Court. We do not agree with this ruling of the Court of Appeals. We
hold that the Extrajudicial Partition of November 25, 1949 is null and void under
Article 1056 in relation to Article 1271 of the old Civil Code which are applicable
hereto. These Articles provide as follows:
Art. 1056. If the testator should make a partition of his property by an act inter vivos,
or by will, such partition shall stand in so far as it does not prejudice the legitime of the
forced heirs. x x x
Art. 1271. All things, even future ones, which are not excluded from the commerce of
man, may be the subject-matter of contracts.
Nevertheless, no contract may he entered into with respect to future inheritances, except
those the object of which is to make a division inter vivos of an estate, in accordance with
Article 1056.
All services not contrary to law or to good morals may also be the subject-matter of
contract.

Article 1058 specifically uses the word testator from which the clear intent of
the law may be deduced that the privilege of partitioning ones estate by acts inter

vivos is restricted only to one who has made a prior will or testament. In other
words, Article 1056 being an exception cannot be given a wider scope as to include
in the exception any person whether he has made a will or not.
Respondent court citing the same Article concluded that under both the old and
new Civil Code, a person who executes a will is permitted at the same time or a
little thereafter or even before as long as he mentions this fact in the will, to
partition his properties pursuant to the provisions of Article 1056 of the old Civil
Code. The court further added that jurisprudence is to the effect that the partition
presupposes the execution of the will that it ratifies or effectuates, citing the case
of Legasto vs. Verzosa, 54 Phil. 776. Finally, respondent court held the opinion that
the extrajudicial partition of November 14, 1949 was ratified in the holographic will
executed by Don Jesus on Jan. 5, 1955 and in the codicil of August 14, 1956.
Again, We do not agree with this ruling of the respondent court. In Legasto vs.
Verzosa, supra, the Supreme Court categorically declared the necessity of a prior
will before the testator can partition his properties among his heirs, and We quote
the pertinent portions of the decision:
The first question to decide in the instant appeal is whether the partition made by
Sabina Almadin of her property among her nieces, the defendants and appellants herein,
was valid and enforceable.
Article 1056 of the Civil Code provides:
Art. 1056. If the testator should make a partition of his property by an act inter vivos, or
by will, such partition shall stand in so far as it does not prejudice the legitime of the forced
heirs.
The Supreme Court of Spain, in a decision rendered on June 13, 1903, laid down the
following doctrine:
Considering that the language of article 1056 cannot be interpreted to mean that a
person may, by acts inter vivos, partition his property referred to in the section wherein
said article is found, without the authority of a testament containing an expression of his
last will, or the authority of law, for, otherwise, a partition thus made would be tantamount
to making a will in a manner not provided for, authorized, nor included in the chapter
referring to testaments, and especially, to the forms thereof, which is entirely different from

the legal consequences of a free disposition made by parents during their lifetime, whereby
they give to their children the whole or a part of their property;
Considering that, inasmuch as the second paragraph of article 1271 makes reference to
the aforesaid article, in providing that no contracts may be entered into with respect to
future inheritances except those the object of which is to make a division inter vivos of the
estate in accordance with article 1056, it is evident that said difference likewise leads to the
conclusion that a partition thus made should be on the basis of a testamentary or legal
succession and should be made in conformity with the fundamental rules thereof and the
order of the heirs entitled to the estate, because neither of the two provisions could be given
a wider meaning or scope than that they simply provide for the division of the estate during
the lifetime of the owner, which, otherwise, would have to be done upon the death of the
testator in order to carry into effect the partition of the estate among the persons
interested.
Manresa comments on the same article as follows;
A distinction must be made between the disposition of property and its division; and the
provision of article 1056 authorizing the testator to dispose of his property by acts inter
vivos or by last will, must be understood in accordance with this distinction. The idea is to
divide the estate among the heirs designated by the testator. This designation constitutes
the disposition of the properties to take effect after his death, and said act must necessarily
appear in the testament because it is the expression of the testators last will and must be
surrounded by appropriate formalities. Then comes the second part, to wit, the division in
conformity with that disposition, and the testator may make this division in the same will
or in another will, or by an act inter vivos. With these words, the law, in article 1056 as well
as in article 1057, which we shall hereafter examine, makes allusion to the forms or manner
of making the partition and not to the effects thereof, which means that, for purposes of
partition the formal solemnities which must accompany every testament or last will are not
necessary. Neither is it necessary to observe the special formalities required in case of
donations, because it is not a matter of disposing gratuitously of properties, but of dividing
those which already have been legally disposed of.
It is thus seen that both the Spanish Supreme Court and the learned and authoritative
commentator, Manresa, are of opinion that a testator may, by an act inter vivos, partition
his property, but he must first make a will with all the formalities provided for by law. And
it could not be otherwise, for without a will there can be no testator; when the law,
therefore, speaks of the partition inter vivos made by a testator of his property, it
necessarily refers to that property which he has devised to his heirs. A person who disposes
of his property gratis inter vivos is not called a testator, but a donor, In employing the word

testator, the law evidently desired to distinguish between one who freely donates his
property in life and one who disposes of it by will to take effect after his death.

We are not in conformity with the holding of the respondent court that the
extrajudicial partition of November 25, 1949 which under the old Civil Code was
expressly prohibited as against public policy had been validly ratified by the
holographic will of Don Jesus executed on January 5, 1955 and his codicil of August
14, 1956. Such a holding of the appellate court that a person who executes a will is
permitted to partition his properties pursuant to the provisions of Article 1056 of
the old Civil Code even before executing his will as long as he mentions this fact in
the will, is not warranted under the ruling of Legasto vs. Verzosa, supra and the
commentary of Manresa as quoted above. We rule, therefore, that the respondent
court erred in denying probate to the will of Don Jesus dated November 14, 1959; it
erred in holding that Don Jesus being a party to the extrajudicial partition of 1949
was contractually bound by the provisions thereof and hence could not revoke his
participation therein by the simple expedience of making a new will with contrary
provisions or dispositions. It is an error because the so-called extrajudicial partition
of 1949 is void and inoperative as a partition; neither is it a valid or enforceable
contract because it involved future inheritance; it may only be given effect as a
donation inter vivos of specific properties to the heirs made by the parents.
Considering that the document, the extrajudicial partition of November 25, 1949,
contained specific designation of properties allotted to each child, We rule that there
was substantial compliance with the rules on donations inter vivos under the old
Civil Code (Article 633). On the other hand, there could have been no valid donation
to the children of the other half reserved as the free portion of Don Jesus and Doa
Tinay which, as stated in the deed, was to be divided equally among the children for
the simple reason that the property or properties were not specifically described in
the public instrument, an essential requirement under Article 633 which provides
as follows:
Art. 633. In order that a donation or real property be valid it must be made by public
instrument in which the property donated must be specifically described and in the amount
of the encumbrances to be assumed by the donee expressed.
The acceptance must be made in the deed of gift or in a separate public writing; but it
shall produce no effect if not made during the lifetime of the donor.

If the acceptance is made by separate public instrument, authentic notice thereof shall
be given the donor, and this proceeding shall be noted in both instruments.

This other half, therefore, remained as the disposable free portion of the spouses
which may be disposed of in such manner that either of the spouses would like in
regards to his or her share in such portion, unencumbered by the provision
enjoining the last surviving spouse to give equally to the children what belongs or
would pertain to him or her. The end result, therefore, is that Don Jesus and Doa
Tinay, in the Deed of 1949, made to their children valid donations of only one-half of
their combined properties which must be charged against their legitime and cannot
anymore be revoked unless inofficious; the other half remained entirely at the free
disposal of the spouses with regards to their respective shares.
Upon the death of Doa Tinay on October 2, 19593587, her share in the free
portion was distributed in accordance with her holographic will dated January 25,
1955 and her codicil dated August 14, 1956. It must be stressed here that the
distribution of her properties was subject to her holographic will and codicil,
independently of the holographic will and codicil of Don Jesus executed by him on
the same date. This is fundamental because otherwise, to consider both wills and
codicils jointly would be to circumvent the prohibition of the Civil Code on joint wills
(Art. 818) and secondly because upon the death of Doa Tinay, only her estate was
being settled, and not that of Don Jesus.
We have carefully examined the provisions of the holographic will and codicil of
Doa Tinay and We find no indication whatsoever that Doa Tinay expressly or
impliedly instituted both the husband and her children as heirs to her free portion
of her share in the conjugal assets. In her holographic will, mention of her children
as heirs was made in the fourth clause but it only provided that, to wit:
Cuatro. Que si yo adquieriese nuevase propiedades despues de otorgado este mi
testamento seran las mismas repartados entre mi esposo o hijos arriba mencionada en el
parrafo tercero su la misma proporcion o sea: la mitad (1/2) para mis osposa; y la otra mitad
(1/2) para mis hijos en partes iguales.

For purposes of clarity and convenience, this fourth clause provided that Should
I acquire new properties after the execution of this testament, the same shall be
partitioned among my spouse and above named children or the children mentioned
in above par. 3 in the same proportion, that is one-half (1/2) to my spouse; and the

other half to my children in equal parts. From the above-quoted provision, the
children would only inherit together with Don Jesus whatever new properties Doa
Tinay would acquire after the execution of her will.
Likewise, the codicil of Doa Tinay instituted her husband as sole heir to her
share in the free portion of the conjugal assets, and We quote that part of the codicil:
Dejo a mi esposo Jesus Alsua como su legitima y como herencia que se sacara de mi
cuenta de libre disposicion todos aquellos bienes de los que no he dispuesto aun en favor de
mis hijos en la escritura de reparticion precitada y que excedieran de la mitad de
gananciales que le corresponde tal como arriba declaro, incluyendo todos aquellos bienes
que se adquiriesen por nosotros despues de otorgado por mi este testamento.
Para el caso de que Dios dispusiera que yo sobreviviera a mi esposo declaro que es mi
voluntad que todas las propiedades de todo genero que me pertenecen y me pudieran
pertenecer, no dispuestas aun en la reparticion, se dividan por igual entre mis herederos
mencionados despues de mi muerte.

Again for purposes of clarity and convenience, the above portion states:
I leave to my spouse Don Jesus Alsua as his legitime and as his inheritance the part of
the free portion of my property which have not been allocated in favor of my children in the
Document of Partition aforecited and that which should exceed 1/2 of the conjugal property
of gains that pertains to him as above stated, including all those properties which we shall
acquire after the execution of this document.
In case it should be Gods will that I survive my spouse, I hereby declare that it is my
will that any and all kinds of property that pertains to me or would pertain to me, which
have not been disposed of pursuant to the partition, should be divided equally among my
above-mentioned heirs after my death.

The children, therefore, would only receive equal shares in the remaining estate
of Doa Tinay in the event that she should be the surviving spouse. To stress the
point, Doa Tinay did not oblige her husband to give equally to the children, upon
his death, all such properties she was bequeathing him.
Considering now the efficacy of Don Jesus last will and testament executed on
November 14, 1959 in view of Our holding that Doa Tinays will and codicil did not
stipulate that Don Jesus will bestow the properties equally to the children, it follows

that all the properties of Doa Tinay bequeathed to Don Jesus under her
holographic will and codicil became part of Don Jesus estate unburdened by any
condition, obligation or proviso.
Respondents insist that Don Jesus was bound by the extra-judicial partition of
November 25, 1949 and had in fact conformed to said partition by making a
holographic will and codicil with exactly the same provisions as those of Doa Tinay,
which respondent court sustained. We rule, however, that Don Jesus was not forever
bound thereby for his previous holographic will and codicil as such, would, remain
revokable at his discretion. Art. 828 of the new Civil Code is clear: A will may be
revoked by the testator at any time before his death. Any waiver or restriction of
this right is void. There can be no restriction that may be made on his absolute
freedom to revoke his holographic will and codicil previously made. This would still
hold trueeven if such previous will had as in the case at bar already been
probated. (Palacios v. Palacios, 106 Phil. 739). For in the first place, probate only
authenticates the will and does not pass upon the efficacy of the dispositions
therein. And secondly, the rights to the succession are transmitted only from the
moment of the death of the decedent (Article 777, New Civil Coda). In fine, Don
Jesus retained the liberty of disposing of his property before his death to
whomsoever he chose, provided the legitime of the forced heirs are not prejudiced,
which is not herein claimed for it is undisputed that only the free portion of the
whole Alsua estate is being contested.
After clearly establishing that only Don Jesus was named as sole heir instituted
to the remaining estate of Doa Tinay in her holographic will and codicil resulting
in all such properties becoming the properties of Don Jesus alone, and after clearly
pointing out that Don Jesus can, in law, revoke his previous holographic will and
codicil, by making another will expressly cancelling and revoking the former, the
next issue for the Courts resolution is the validity of the provisions of the contested
will. Though the law and jurisprudence are clear that only questions about the
extrinsic validity of the will may be entertained by the probate court, the Court had,
on more than one occasion, passed upon the intrinsic validity of a will even before it
had been authenticated. Thus We declared in Nuguid v. Nuguid, 17 SCRA 499:
The parties shunted aside the question of whether or not the will should be allowed to
probate. For them, the meat of the case is the intrinsic validity of the will. Normally this
comes only after the court has declared that the will has been duly authenticated. x x x

x x x If the case were to be remanded for probate of the will, nothing will be gained. On
the contrary, this litigation will be protracted and for ought that appears in the record, in
the event of probate or if the court rejects the will, probability exists that the case will come
up once again before us on the same issue of the intrinsic validity or nullity of the will
Result: waste of time, effort, expense, plus added anxiety. These are the practical
considerations that induce us to a belief that we might as well meet head-on the issue of the
validity of the provisions of the will in question. x x x

The last Will and Testament of Don Jesus executed on November 14, 1959
contained an express revocation of his holographic will of January 5, 1955 and the
codicil of August 14, 1956; a statement requiring that all of his properties donated
to his children in the Deed of 1949 be collated and taken into account in the
partition of his estate; the institution of all his children as devisees and legatees to
certain specific properties; a statement bequeathing the rest of his properties and
all that may be acquired in the future, before his death, to Pablo and Francisca; and
a statement naming Francisca as executrix without bond.
Considering these testamentary provisions, a close scrutiny of the properties
distributed to the children under the Deed of 1949 and those distributed under the
contested will of Don Jesus does not show that the former had in fact been included
in the latter. This being so, it must be presumed that the intention of Don Jesus in
his last will was not to revoke the donations already made in the Deed of 1949 but
only to redistribute his remaining estate, or that portion of the conjugal assets
totally left to his free disposal and that which he received as his inheritance from
Doa Tinay. The legitimes of the forced heirs were left unimpaired, as in fact, not
one of said forced heirs claimed or intimated otherwise. The properties that were
disposed of in the contested will belonged wholly to Don Jesus Alsuas free portion
and may be disposed of by him to whom-soever he may choose.
If he now favored Francisca more, as claimed by private respondents, or Pablo as
in fact he was, We cannot and may not sit in judgment upon the motives and
sentiments of Don Jesus in doing so. We have clearly laid down this rule
in Bustamanie v. Arevalo, 73 Phil. 635, to wit:
x x x nevertheless it would be venturesome for the court to advance its own idea of a
just distribution of the property in the face of a different mode of disposition so clearly
expressed
by
the
testatrix
in
the
latter
will
x
x
x
It would be a dangerous precedent to strain the interpretation of a will in order to effect

what the court believes to be an equitable division of the estate of a deceased person. The
only functions of the courts in these cases is to carry out the intention of the deceased as
manifested in the will. Once that intention has been determined through a careful reading
of the will or wills, and provided the law on legitimes has not been violated, it is beyond the
place of judicial cognizance to inquire into the fairness or unfairness of any devise or
bequeast. The court should not sit in judgment upon the motives and sentiments of the
testatrix, first, because as already stated, nothing in the law restrained her from disposing
of her property in any manner she desired, and secondly, because there are no adequate
means of ascertaining the inward process of her conscience. She was the sole judge of her
own attitude toward those who expected her bounty. x x x

Respondent court, in trying to rationalize the will of Don Jesus which allegedly
benefited and favored the petitioner to the prejudice of the other heirs who would
have been entitled to an equal share under the extrajudicial partition of 1949, faced
two alternatives-one, to consider Don Jesus as a man of culture and honor and
would not allow himself to violate the previous agreement, and the other as one
whose mental faculties or his possession of the same had been diminished
considering that when the will was executed, he was already 84 years of age and in
view of his weakness and advanced age, the actual administration of his properties
had been left to his assistant Madarieta who, for his part received instructions from
Francisca and her husband, Joseph Betts. According to the court, the better
explanation is the latter, which is not legally tenable. Under Article 799 of the New
Civil Code which provides as follows:
Art. 799. To be of sound mind, it is not necessary that the testator be in full possession
of all his reasoning faculties, or that his mind be wholly unbroken, unimpaired, or
unshattered by disease, injury or other cause.
It shall be sufficient if the testator was able at the time of making the will to know the
nature of the estate to be disposed of, the proper objects of his bounty, and the character of
the testamentary act,

The test of testamentary capacity is at the time of the making of the will. Mere
weakness of mind or partial imbecility from disease of body or from age does not
render a person incapable of making a will.
Between the highest degree of soundness of mind and memory which unquestionably
carries with it full testamentary capacity, and that degrees of mental aberration generally
known as insanity or idiocy, there are numberless degrees of mental capacity or incapacity

and while on one hand it has been held that mere weakness of mind, or partial imbecility
from disease of body, or from age, will not render a person incapable of making a will; a
weak or feebleminded person may make a valid will, provided he has understanding and
memory sufficient to enable him to know what he is about to do and how or to whom he is
disposing of his property. To constitute a sound and disposing mind, it is not necessary that
the mind be unbroken or unimpaired or unshattered by disease or otherwise. It has been
held that testamentary incapacity does not necessarily require that a person shall actually
be insane or of unsound mind. (Bugnao vs. Ubag, 14 Phil. 163).

The Civil Code itself provides under Article 798 that in order to make a will, it is
essential that the testator be of sound mind at the time of its execution, and under
Article 800, the law presumes that every person is of sound mind in the absence of
proof to the contrary. In the case at bar, the acceptance by the respondent court of
the findings of fact of the trial court on the due execution of the last will and
testament of Don Jesus has foreclosed any and all claim to the contrary that the will
was not executed in accordance with the requirements of the law. But more than
that, gleaned from the quoted portions of the appealed decision, the described
behavior of Don Jesus is not that of a mentally incapacitated person nor one
suffering from senile dementia as claimed by private respondents. From these
accepted facts, We find that: (a) it was Don Jesus himself who gave detailed
instructions to his lawyer as to how he wanted to divide his properties among his
children by means of a list of his properties should pertain; (b) the semi-final draft
of the contested will prepared by his lawyer was even corrected by Don Jesus; (c) on
the day of the signing of the will at his house in Ligao, Don Jesus was in bright and
lively spirits x x x, leading in the conversation which ran from problems of farming
and the merits of French-made wines; (d) the signing of the will by Don Jesus and
his attesting witnesses was made after a statement from Don Jesus of the purpose
of their meeting or gathering, to wit:
Precisamente es por lo que he llamado a ustedes que esten presentes para ser testigos
de mi ultima voluntad y testamento que ha sido preparado por el abogado Sr. Gregorio
Imperial segun mis instrucciones cuyo documento tengo aqui con migo y encuentro que,
despues de lo he leido, esta satisfactoriamente hecho segun mis in-strucciones, Como saben
ustedes tengo cuatro (4) hijos todos ellos.

Clearly then, Don Jesus knew exactly what his actions were and the full
implications thereof.

In rejecting probate of the will, respondent court further pointed out other details
which, in the words of the decision are a little bit difficult to reconcile with the
ordinary course of things and of life such as the fact that Don Jesus had sought the
probate of his will of January 5, 1955 and his codicil of August 14, 1956 during his
lifetime but insofar as the will of November 14, 1959 is concerned, he had no
intention of seeking the probate thereof during his lifetime, the alleged redundant
and unnecessary proceedings undertaken by Don Jesus in selling the properties
under question to petitioner Francisca Alsua-Betts when the same properties had
already been bequeathed to her in the will of November 14, 1959 and that nothing,
absolutely nothing, could be made the basis for finding that Don Jesus Alsua had
regarded his other children with less favor, and that he was more sympathetic to
Francisca so as to disregard or forget the former depriving them of benefits already
given to them and rewarding the latter with disproportionate advantages or
benefits, to such an extreme as to violate his previous disposition consecrated in the
previous extrajudicial partition, Exh. 8.
We agree with the petitioner that these details which respondent court found
difficult to reconcile with the ordinary course of things and of life are mere
conjectures, surmises or speculations which, however, do not warrant or justify
disallowance of the probate of the will of Don Jesus. The fact that Don Jesus did not
cause his will to be probated during his lifetime while his previous holographic will
and codicil were duly probated when he was still alive is a mere speculation which
depends entirely on the discretion of Don Jesus as the testator. The law does not
require that a will be probated during the lifetime of the testator and for not doing
so there cannot arise any favorable or unfavorable consequence therefrom. The
parties cannot correctly guess or surmise the motives of the testator and neither can
the courts. Such surmise, speculation or conjecture is no valid and legal ground to
reject allowance or disallowance of the will. The same thing can be said as to
whatever reason Don Jesus had for selling the properties to his daughter Francisca
when he had already assigned the same properties to her in his will. While We can
speculate that Don Jesus desired to have possession of the properties transferred to
Francisca after the sale instead of waiting for his death may be a reasonable
explanation or speculation for the act of the testator and yet there is no certainty
that such was actually the reason. This is as good a conjecture as the respondents
may offer or as difficult to accept which respondent court believes. A conjecture is
always a conjecture; it can never be admitted as evidence.

Now, the annulment case. The only issue raised anent the civil case for
annulment of the two Deeds of Sale executed by and between Don Jesus and
petitioner Francisca is their validity or nullity. Private respondents mainly contend
that the sales were fictitious or simulated, there having been no actual
consideration paid. They further insist that the issue raised is a question of fact
and, therefore, not reviewable in a certiorari proceeding before the Supreme Court.
On the other hand, petitioners herein maintain that it was error for the respondent
court to set aside on appeal the factual findings of the trial court that the two sales
were valid.
It is true that the jurisprudence of this Court in cases brought to Us from the
Court of Appeals is limited to reviewing and revising the errors of law imputed to it,
its findings of fact being conclusive; and this same principle applies even if the
Court of Appeals was in disagreement with the lower court as to the weight of
evidence with a consequent reversal of its findings of fact. But what should not be
ignored by lawyers and litigants alike is the more basic principle that the fin-dings
of fact described as final or conclusive are those borne out by the record or those
which are based upon substantial evidence. The general rule laid down by the
Supreme Court does not declare the absolute correctness of all the findings of fact
made by the Court of Appeals. These are exceptions to the general rule, where We
have reviewed and revised the findings of fact of the Court of Appeals. Among the
exceptions to the rule that findings of fact by the Court of Appeals cannot be
reviewed on appeals by certiorari are:
1.When the conclusion is a finding grounded entirely on speculation, surmises or
conjectures (Joaquin vs. Navarro,93 Phil. 257);
2.When the inference made is manifestly mistaken, absurd or impossible (Luna
vs. Linatok, 74 Phil. 15);
3.Where there is a grave abuse of discretion (Buyco vs. People, 51 OG 2927);
4.When the judgment is based on a misapprehension of facts (Cruz vs. Sosing, L4875, Nov. 27, 1953);
5.When the findings of fact are conflicting (Casica vs. Villaseca, L-9590, April 30,
1957); and

6.When the Court of Appeals, in making its findings, went beyond the issues of
the case and the same is contrary to the admissions of both appellant and appellee
(Evangelista vs. Alto Surety & Ins, Co., L-11139, April 23, 1958; Ramos vs. Pepsi
Cola, L-22533, Feb. 9, 1967, 19 SCRA 289).
In the case at bar, We find and so declare that the respondent courts conclusion as
to the nullity of the contested sales was not supported by the evidence on record and
adduced during the trial
Evident from the records are the following documentary evidence: (1) Exhibit U,
a deed of sale over agricultural lands executed on August 26, 1961 by Don Jesus in
favor of Francisca for the consideration of Seventy Thousand Pesos (P70,000.00),
which document bears the signature of Don Jesus, not assailed as a forgery, and the
signature of Pablo Alsua as an instrumental witness, again not assailed as a forgery
nor alleged as done thru fraud, force or threat. (2) Exhibit W, a deed of sale over
urban lots executed on November 26, 1962 for the consideration of Eighty Thousand
Pesos (P80,000.00), which document also bears the signature of Don Jesus, also
admittedly not a forgery. (3) Exhibit F, a document dated August 26, 1961 and
signed by Don Jesus and Pablo Alsua as witness, acknowledging receipt of a Bank of
Philippine Island Check No. 0252 in the amount of Seventy Thousand Pesos
(P70,000.00) for the sale of 33 parcels of agricultural land to Francisca under the
same date; again, Pablo did not deny the genuineness of his signature. (4) Exhibit
X, a Bank of the Philippine Islands Check No. D-6979 dated November 26, 1962,
in the amount of P32,644.71, drawn and signed by Francisca, payable to Don Jesus.
(5) Exhibit X-1, a second Bank of Philippine Islands Check (No. D-6980) also dated
November 26, 1962 in the amount of P47,355.29, drawn by Francisca and payable to
Don Jesus. (6) Exhibit X-3 and X-5, endorsements on the back of the last two
checks by Don Jesus, again, his signatures thereon were not assailed. (7) Exhibit A
(in the annulment case), a Bureau of Internal Revenue Receipt (No. 2347260) dated
November 29, 1962 with a notation acknowledging the receipt of BPI Check No. D6980 in the amount of P47,355.29 from Don Jesus Alsua in payment of Balance of
Transfer of Tax Ass. No. EA-35415-19 plus interest. We are convinced and satisfied
from this array of documentary evidence that in fact, Don Jesus sold the subject
properties to his daughter, Francisca for the total consideration of P150,000.00.
The claim of the private respondents that the sales were fictitious and void for
being without cause or consideration is as weak and flimsy as the ground upon

which the respondent court upheld said claim on the basis that there was no need
for funds in Don Jesus old age aside from the speculation that there was nothing in
the evidence that showed what motivated Don Jesus to change his mind as to favor
Francisca and discriminate against the other children. The two contracts of sale
executed by Don Jesus in favor of Francisca are evidenced by Exhibits U and W,
the genuineness of which were not at all assailed at any time during this long
drawn-out litigation of 15 years standing. That the consideration stated In the
contracts were paid is also sufficiently proved as the receipts thereof by Don Jesus
were even signed by one of the private respondents, Pablo Alsua, as a witness. The
latter cannot now deny the payment of the consideration. And even if he now allege
that in fact no transfer of money was involved, We find his allegation belied by
Exhibits X-3 and X-5, which show that the checks of Francisca made payable to
Don Jesus were in fact given to Don Jesus as he endorsed them on the back thereof,
and most specifically Exhibit A in the annulment case, which proved that Don
Jesus actually used Exhibit X-1 to complete payment on the estate and inheritance
tax on the estate of his wife to the Bureau of Internal Revenue.
Private respondents further insist that the sales were fraudulent because of the
inadequacy of the given price. Inadequacy of consideration does not vitiate a
contract unless it is proven, which in the case at bar was not, that there was fraud,
mistake or undue influence. (Article 1355, New Civil Code). We do not find the
stipulated price as so inadequate to shock the courts conscience, considering that
the price paid was much higher than the assessed value of the subject properties
and considering that the sales were effected by a father to her daughter in which
case filial love must be taken into account.
WHEREFORE, IN VIEW OF THE FOREGOING, the decision appealed from is
hereby set aside. The decision of the Court of First Instance of Albay in Special
Proceedings No. 699 and Civil Case No. 3068 is hereby reinstated, with costs
against respondents.
SO ORDERED.
Teehankee (Chairman), Makasiar and Fernandez, JJ., concur.
De Castro, J., took no part.
Melencio Herrera, J., in the result.

Petition granted.
Notes.Where the real intention of the parties is the sale of a piece of land, but
there is a mistake in designating the particular lot to be sold in the document, the
mistake does not vitiate the consent of the parties, or affect the validity and binding
effect of the contract. (Atilano vs. Atilano, 28 SCRA 231).
A sale of land in a private instrument is valid. Delivery of the possession of the
land is a consummation of the sale. (Gallar vs. Husain, 20 SCRA 186).
Where the vendors of a parcel of land delivered its possession to the vendee, and
no superior rights of third persons have intervened, the fact that the deed of sale
has not been registered does not destroy its efficacy insofar as said vendors and their
privies are concerned. (Mahilum vs. Court of Appeals, 17 SCRA 482).
A stipulation in a pacto de retro sale not to repurchase the land within ten years
following the execution of the sale is unlawful. (Tayao vs. Dulay, 13 SCRA 758).
Where submission of project of partition and distribution, with final accounting,
to probate court deemed substantial compliance with Civil Code on liquidation of
conjugal partnership. (Divinagracia vs. Rovira, 72 SCRA 307).
Probate court may provisionally pass upon question of inclusion of a piece of
property in inventory, but final determination should be in a separate action.
(Lacheval vs. Salas, 71 SCRA 262.)
The finality of the approval of the project of partition by itself alone does not
terminate the probate proceeding. As long as the order of the distribution of the
estate has not been complied with the probate proceedings cannot be deemed closed
and terminated. (Guilas vs. Court of First Instance of Pampanga, 43 SCRA 111.)
Probate court may pass upon intrinsic validity of a will before passing upon its
formal validity. (Balanay, Jr., vs. Martirez, 64 SCRA 452.)
No. L-48433. April 30, 1984.

PACITA, FILOMENO, REMEDIOS, ADELAIDA and NELIA, all surnamed

DIMAYUGA, and HEIRS OF SOCORRO DIMAYUGA-LASALA; SERGIO LASALA,

MARCELINO; SATURNINO and Minors AIDA. DANTE, BELEN, LITO, JOHN,

ESTER and EDWIN, all surnamed LASALA, represented by guardian ad
litem Sergio Lasala, petitioners, vs. COURT OF APPEALS and MANUEL
DIMAYUGA, respondents.
Public Land Act; Prescription; No portion of a homestead may be acquired by
prescription.That contention is devoid of merit. It may be morally plausible but it is
legally indefensible. No portion of the homestead, a registered land, may be acquired by
prescription. No title to registered land in derogation to that of the registered owner shall
be acquired by prescription or adverse possession.
Same; Property; Succession; A partition made by a predecessor-in-interest is void if
there is no will or the will is void.Article 1056 of the old Civil Code provides that if the
testator should make a partition of his property by an act inter vivos, or by will, such
partition shall stand insofar as it does not prejudice the legitime of the forced heirs. Article
1056 was construed to mean that a person who makes an inter vivos partition must first
execute a will. If the will is void, the partition is void (Legasto vs. Verzosa, 54 Phil. 766;
Fajardo vs. Fajardo, 54 Phil. 842; Romero vs. Villamor, 102 Phil. 641). With more reason
would the partition be void if there was no will.
Same; Same; Same; Upon the death of the mother, 1/2 of the homestead is inherited by
the only child of its parents. In the other half, said child, and another by a subsequent
marriage had a 2/3 legitime from their fathers share.The 1948 partition was not in
conformity with law. It assumed that Genaro was the owner of the entire homestead. That
is wrong. One-half of the homestead, subject to the husbands usufructuary legitime, was
inherited in1940 by Manuel upon the death of his mother who was married to Genaro for
twenty-five years, Genaro could dispose by an act inter vivos only one-half of the
homestead In that one-half portion, Manuel and Nelia, as Genaros legal and forced heirs,
had a two-third legitime.
Donation; Succession; Property; Contracts; A partition by and among a father, his
illegitimate children and legitimate children is void if it amounts to a renunciation of future
inheritance.In donating the said one-half portion to his six illegitimate children, Genaro
deprived Manuel of his legitime in his estate or, in effect, made him renounce his future
inheritance. The 1951 affidavit cannot be construed as a repudiation of his inheritance in
his fathers estate because the document does not have that tenor. For this reason, Manuel
is not estopped to ignore that partition. The rule in Alforque vs. Veloso, 65 Phil. 272, cited
by the petitioners, does not apply to Manuel. The facts in theAlforque case are radically
different from the facts of the instant homestead case.

Succession; Support; Spurious or illegitimate children have no successional rights;

They enjoy only the right to support.The five illegitimate children (the sixth child Nelia
was legitimated) have no rights whatsoever to the said homestead. As already said, they
were adulterous or spurious children.
Same; Same; Same.As such, they are not entitled to successional rights but only to
support (Art. 139, old Civil Code; Reyes vs. Zuzuarregui, 102 Phil. 346; Olivete vs. Mata,
100 Phil. 563; Javelona vs. Monteclaro, 74 Phil. 393; Lagrimas vs. Lagrimas, 95 Phil. 113;
Ramirez vs. Gmur, 42 Phil. 855).

PETITION to review the judgment of the Court of Appeals.

The facts are stated in the opinion of the Court.
Teresita Infantado-Gines for petitioners.
Renato Leviste for respondents.
AQUINO, J.:
This case is about the effect of a partition inter vivos on the successional rights to a
thirteen-hectare homestead located at Pola, Oriental Mindoro.
The spouses Genaro Dimayuga and Segunda Gayapanao, who were married in
1915 (Exh. 2), acquired a Torrens title for that homestead in 1928 (Exh. 1). Segunda
died intestate in 1940, survived by her son, Manuel, and her husband, Genaro.
During their marriage, Genaro had a mistress named Emerenciana Panganiban
by whom he begot five children, named Filomeno, Pacita, Adelaida, Remedios and
Socorro. A sixth child, Nelia Dimayuga, was born in 1944 or after Segundas death.
Emerenciana cultivated a homestead adjoining the thirteen-hectare homestead in
question. So, it was not surprising that she became the paramour of Genaro.
Genaro, 56, married Emerenciana, 37, on February 26, 1947 (Exh. 3). That
marriage legitimated Nelia, who had been a duly acknowledged natural child, but it
did not improve the status of her brother and four sisters who were adulterous or
spurious children.

On September 16, 1948, or about a month before Genaros death a partition of

real property was executed in English. It was duly notarized. It was signed by
Genaro, Manuel, Filomeno and Pacita and thumbmarked by Emerenciana, in
representation of her minor children Adelaida, Remedios, Socorro and Nelia (Exh.
A), though Emerenciana had not been appointed judicial guardian of their property.
The document states the ages of the children as Pacita, 22, Filomeno, 19,
Adelaida, 17, Remedios, 15, Socorro, 13, and Nelia, 4. But their birth certificates
show that they were all minors. Filomeno and Pacita were twins born on December
25, 1929; Remedios and Adelaida were also twins born on January 2, 1932; Socorro
was born in 1938 and Nelia, as already noted, in 1944 (Exh. 4 to 9).
In that partition, which the petitioners also regard as a donation, Genaro treated
the homestead as his sole property and not conjugal, which it actually was (Pisalbon
vs. Bejec, 74 Phil. 288; Tabunan vs. Marigmen, 101 Phil. 288). Manuel was given as
share five and one-half hectares of the homestead (southern portion
adjoiningEmerencianas separate homestead). The six illegitimate children were
given seven and seven-tenth hectares (northern portion also adjoining
Emerencianas separate homestead). The partition was not registered.
The partition was amended in 1951 by means of an affidavit in Tagalog signed by
the same parties except Genaro who died intestate on October 8, 1948. An
additional one hectare was given to Manuel, making his total share six and fivetenth hectares. The 1948 partition prejudiced him because ang ginawang
paghahati ni Genaro Dimayuga ay hindi tumpak sapagkat naapi si Manuel
Dimayuga (Exh. B).
Nineteen years later, or on May 28, 1970, Manuel having been advised that the
entire homestead was inherited by him from his parents and freed from his fathers
moral ascendancy, executed an affidavit of adjudication which he registered. He
obtained a Torrens title for the thirteen-hectare homestead (Exh. 1).
About two months later, the six illegitimate children filed a complaint for the
annulment of Manuels title and for the division of the homestead equally among
Genaros seven children including Manuel. The parties submitted a partial
stipulation of facts. The plaintiffs offered the partition and the amendatory affidavit
as their documentary evidence (Exh. A and B). On the other hand, Manuels

documentary evidence consisted of his title, the marriage contracts of his parents
and of Genaro and Emerenciana and the birth certificates of the illegitimate
children (Exh. 1 to 9).
There was no oral evidence. The parties submitted the case on pure questions of
law (p. 15, Record on Appeal). The trial court annulled Manuels title, decreed that
about one-half of the homestead should be divided equally among the six
illegitimate children and ordered Manuel to pay them P2,500 as moral and
exemplary damages and attorneys fees.
Manuel appealed to the Court of Appeals which adjudicated to him three-fourth
of the homestead and the other one-fourth to Nelia. The six illegitimate children
appealed to this Court. We gave due course to the appeal because of their contention
that since the case involved only legal questions the Appellate Court had no
jurisdiction over it. We treated the case as if it had been directly appealed from the
trial court to this Court.
The petitioners or the six illegitimate children admit that the Appellate Court
correctly applied the law by adjudicating three-fourth of the homestead to Manuel
and one-fourth to Nelia (p. 10, Brief). However, they contend that their possession of
about one-half of the homestead since the 1948 partition made them owners by
prescription and that Manuel is estopped to deny that fact because he adjudicated
the homestead to himself only twenty-two years later.
That contention is devoid of merit. It may be morally plausible but it is legally
indefensible. No portion of the homestead, a registered land, may be acquired by
prescription. No title to registered land in derogation to that of the registered
owner shall be acquired by prescription or adverse possession. (Sec. 46, Act No. 496;
Sec. 47, Property Registration Decree, P.D. No. 1529; Art. 1126, Civil Code.)
The petitioners cite Parcotilo vs. Parcotilo, 120 Phil. 1231. That case
involves unregistered land, which was held by the claimant and his predecessors for
over thirty years, an extraordinary prescription. It was immaterial that the
testament in that case was void.
Article 1056 of the old Civil Code provides that if the testator should make a
partition of his property by an actinter vivos, or by will, such partition shall stand
insofar, as it does not prejudice the legitime of the forced heirs. Article 1056 was

construed to mean that a person who makes an inter vivos partition must first
execute a will. If the will is void, the partition is void (Legasto vs. Verzosa,54 Phil.
766; Fajardo vs. Fajardo, 54 Phil. 842; Romero vs. Villamor, 102 Phil. 641). With
more reason would the partition be void if there was no will.
The 1948 partition was not in conformity with law. It assumed that Genaro was
the owner of the entire homestead. That is wrong. One-half of the homestead,
subject to the husbands usufructuary legitime, was inherited in 1940 by Manuel
upon the death of his mother who was married to Genaro for twenty-five years.
Genaro could dispose by an act inter vivos only one-half of the homestead. In that
one-half portion, Manuel and Nelia, as Genaros legal and forced heirs, had a twothird legitime.
In donating the said one-half portion to his six illegitimate children, Genaro
deprived Manuel of his legitime in his estate or, in effect, made him renounce his
future inheritance. The 1951 affidavit cannot be construed as a repudiation of his
inheritance in his fathers estate because the document does not have that tenor. For
this reason, Manuel is not estopped to ignore that partition. The rule in Alforque vs.
Veloso, 65 Phil. 272, cited by the petitioners, does not apply to Manuel. The facts in
theAlforque case are radically different from the facts of the instant homestead case.
The five illegitimate children (the sixth child Nelia was legitimated) have no
rights whatsoever to the said homestead. As already said, they were adulterous or
spurious children.
Desde de las leyes de Partida, la ciencia y la ley suponen, en todas sus determinaciones, la
existencia bien caracterizada de los dos grupos de hijos adulterinos: unos, los simplemente
adulterinos, ex damnato coitu de daado ayuntamiento, los nacidos de mujer soltera
viuda y de hombre casado; y otrosnotos, ex damnato et punibili coitu de daado y punible
ayuntamiento, los nacidos de mujer casada, cualquiera que sea el estado del hombre, porque
la madre, en algunos casos, incurria en la pena de muerte. (17 Enciclopedia Juridica
Espaola, p. 780-1).

As such, they are not entitled to successional rights but only to support (Art. 139,
old Civil Code; Reyes vs. Zuzuarregui, 102 Phil. 346; Olivete vs. Mata, 100 Phil.
563;Javelona vs. Monteclaro, 74 Phil. 393; Lagrimas vs. Lagrimas, 95 Phil. 113;

Ramirez vs. Gmur, 42 Phil. 855). Manuel and Nelia, as Genaros legal and forced
heirs, are entitled to inherit Genaros one-half portion. It cannot be said that the
five adulterous children have no resources whatsoever. Their mother, Emerenciana,
has a homestead adjoining Genaros homestead in question.
WHEREFORE, the trial courts judgment is reversed and set aside. Three-fourth
of the said homestead is hereby adjudicated to Manuel Dimayuga and one-fourth to
Nelia Dimayuga. The register of deeds should cancel Manuels title and issue the
corresponding titles in accordance with this decision. No costs.
SO ORDERED.
Makasiar, (Chairman), Concepcion, Jr., Guerrero,Abad Santos and Escolin,
JJ., concur.
De Castro, J., no part.
Judgment reversed and set aside.
Notes.Residential purposes as used in R.A. 730, does not preclude use of
public land applied for private purchase for commercial purposes, such as putting
up a storage thereat, where the applicant uses it principally as a dwelling place.
(Reyes vs. Court of Appeals, 125 SCRA 785.)
No registrable title over public lands can be confirmed in cadastral proceedings.
A cadastral court is only empowered to issue a decree declaring that the lots sought
to be registered arc public lands. (Francisco vs. Sec. of Agriculture and Natural
Resources, 121 SCRA 380.)
In a petition for cancellation of free patent with the Bureau of Lands, review by
the courts will not be permitted unless the administrative remedies are first
exhausted. (Pastaas vs. Dyogi, 81 SCRA 754.)
The Register of Deeds is liable for damages for malicious issuance of a second
duplicate certificate of Torrens title without the required notice of hearing. (Vda. de
Laig vs. Court of Appeals, 82 SCRA 294.)

R.A. 6330 does not apply to reopening of cadastral proceedings but only to free
patent application and judicial confirmation of imperfect titles. (Republic vs.
Estenzo, 99 SCRA 651.)
o0o

G.R. No. 68282. November 8, 1990.

RAQUEL CHAVEZ, GERARDO GIMENEZ and MANUELA BUENAVISTA VDA.

DE CHAVEZ, petitioners, vs. HON. INTERMEDIATE APPELLATE COURT (4th
Civil Cases Division), ANTONIO CHAVEZ, ROSARIO CHAVEZ and CONCEPCION
CHAVEZ, respondents.
Civil Law; Property; Partition; While the law prohibits contracts upon future
inheritance, the partition by the parent as provided in Art. 1080 is a case expressly
authorized by law.Article 1080 of the New Civil Code allows a person to make a partition
of his estate either by an act inter vivos or by will and such partition shall be respected
insofar as it does not prejudice the legitime of the compulsory heirs. While the law prohibits
contracts upon future inheritance, the partition by the parent, as provided in Art. 1080, is a
case expressly authorized by law.

Same; Same; Same; Art. 1080 of the Civil Code clearly gives a person two options in
making a partition of his estate either by an act inter vivos or by will. Art. 1080 of the Civil
Code clearly gives a person two options in making a partition of his estate; either by an
act inter vivos or by WILL. When a person makes a partition by will, it is imperative that
such partition must be executed in accordance with the provisions of the law on wills;
however, when a person makes the partition of his estate by an act inter vivos,such partition
may even be oral or written, and need not be in the form of a will, provided that the
partition does not prejudice the legitime of compulsory heirs.
Same; Same; Same; Sale; The Deeds of Sale are not contracts entered into with respect
to future inheritance but a contract perfected and consummated during the lifetime of
Manuela Buenavista who signed the same and gave her consent thereto.In the instant
case, the respondent appellate court declared the Deeds of Sale executed by Presentacion,
Floserfina and Raquel, all surnamed Chavez (Exhs. A, B, and C) in favor of Concepcion
Chavez as evidence of a valid partition of the land in question by and between Manuela
Buenavista and her children as she not only gave her authority thereto but also signed the
sales. The Deeds of Sale (Exhs. A, B, and C) are not contracts entered into with respect to
future inheritance but a contract perfected and consummated during the lifetime of
Manuela Buenavista who signed the same and gave her consent thereto. Such
partitioninter vivos, executed by the property owner herself, is valid.

PETITION for certiorari to review the decision of the then Intermediate Appellate
Court.
The facts are stated in the opinion of the Court.
Edmundo A. Narra for petitioners.
Jose L. Lapak for respondents.
GRIO-AQUINO, J.:
This is a petition for review on certiorari of the decision dated March 26, 1984 of the
Intermediate Appellate Court in AC-G.R. No. CV-64708 which (1) annulled the sale
made by Manuela Buenavista of her property in favor of the spouses Raquel Chavez
and Gerardo Gimenez (Exh. 2) and the subsequent sale by said spouses of the same
property to Pepito Ferrer, and (2) declared that the earlier deeds of sale (Exhs. A, B,
C and D) signed by Manuela and her children constituted a valid partition of the
land, subject to her lifetime usufruct. The Court of Appeals thereby reversed the

decision dated December 21, 1971 of the Court of First Instance of Camarines
Norte, Branch 1.
The land in question is the paraphernal property of petitioner Manuel
Buenavista (defendant in Civil Case No. 1934 of the Court of First Instance of
Camarines Norte) who had six (6) children, named Antonio, Rosario, Concepcion,
Raquel, Presentacion and Floserpina. The first three were the plaintiffs and the last
three, with their mother, were the defendants in Civil Case No. 1934.
On July 11, 1958, Presentacion Chavez, with the conformity of her mother,
Manuela Buenavista, executed a deed of sale whereby she sold her 1/6 undivided
share of the land in question to her sister, Concepcion Chavez, for P450.
Two years later, on May 2, 1960, Floserpina Chavez, with the conformity of her
mother, also sold her 1/6 undivided share of the same land to her sister, Concepcion,
for the same price of P450. On May 19, 1960, Raquel, with the conformity of her
mother, likewise sold her undivided 1/6 share of the same property to Concepcion
Chavez for P600. Having acquired the shares of Presentacion, Floserpina and
Raquel, Concepcion thereby became the owner of a total undivided 4/6 share of the
land in question with Antonio and Rosario as owners of the remaining 2/6 shares.
In all the documents, the following stipulation appears:
Na ang nasabing lupa o pag-aari ay ipinamana na sa amin ng aming ina, ang nasabing
Manuela Buenavista, kung kaya ito ay hatiin naming anim (6) na mga magkakapatid,
bagamat hindi pa namin naisasagawa ang paghihiwatig o particion; ako bilang isa sa anim
na magkakapatid ay may karapatan sa isang ikaanim (1/6) na bahagi ng nasabing lupa,
gayon pa man ang kasunduan sa nasabing pagkamana namin ay samantalang nabubuhay
pa ang aming ina, siya ang magkakandili at makikinabang sa nasabing pag-aari. (p. 14,
Rollo.)

meaning that the owner, Manuela Buenavista, had assigned or distributed to her
children, in equal pro-indiviso shares, her paraphernal property situated at Sitio
Langas, Barrio Calangcawan Norte, Vinzons, Camarines Norte, with an area of
4.1163 hectares more or less under Tax Declaration No. 9303 and assessed at
P1,630.00. The owner, however, reserved for herself the possession of the land and
the enjoyment of the fruits during her lifetime.

Despite the transfers or assignments her children had executed with her
conformity ten years earlier, Manuela Buenavista, on August 27, 1968, signed a
Bilihang Patuluyan ng Lupa of the entire property in favor of her daughter,
Raquel Chavez, and her husband, Gerardo Jimenez. On October 7, 1968, Antonio,
Rosario and Concepcion filed Civil Case No. 1934 against their mother Manuela and
their sister Raquel. Thereupon, Manuela sold the entire property to Pepito Ferrer,
on February 4, 1969 (Exh. F) with right to repurchase. Ferrer was later sued as an
additional defendant in Civil Case No. 1934.
After the trial, judgment was rendered by the trial court dismissing the
complaint, dissolving the preliminary injunction it had previously issued, and
ordering the plaintiffs to pay the costs. The court did not award damages.
The plaintiffs, Antonio, Rosario and Concepcion, appealed to the Court of
Appeals (CA-G.R. No. 64708-R).
On March 26, 1984, the Court of Appeals reversed the trial court. The dispositive
portion of its decision reads:
WHEREFORE, we reverse and set aside the appealed decision and render another one
declaring the deeds of sale in favor of Raquel Chavez and Gerardo Jimenez (Exh. 2) and the
sale in favor of defendant-appellee Pepito Ferrer as null and void ab initio, and declaring
further that the documents (Exhs. A, B, C and D) are evidence of a valid partition of the
land in question by and between Manuela Buenavista and her children, subject to her right
of usufruct during her lifetime, without pronouncement as to damages and costs. (p. 17,
Rollo.)

On April 5, 1984, the petitioners filed a motion for reconsideration alleging among
others:
3. That the late Manuela Buenavista Vda. de Chavez, one of the defendants-appellees, was
found lately to have executed during her lifetime a LAST WILL AND TESTAMENT x x x
and there is now a pending petition for probate of said last will and testament before the
Municipal Trial Court of Vinzons, Camarines Norte;
x x x

xxx

xxx

1. 6.In the case at bar, even granting that the late Manuela Buenavistas execution of
the documents referred to as Exhibits A, B, C and D are valid, nevertheless its

validity ceases from the time that she executed the Last Will and Testament x x x
because the execution of the Last Will invalidates the former act of the said
Manuela Buenavista;
2. 7.That the Last Will and Testament x x x which is now pending probate in the
Municipal Trial Court of Vinzons, Camarines Norte, will finally affect the property
hence, there is a ground for this motion for reconsideration and/or to suspend the
decisionpending final outcome of the probate of the last will and testament of the
late Manuela Buenavista. (pp. 88-89, Rollo.)

Private respondents opposed the Motion for Reconsideration asserting that the
partition inter vivoswhich had been implemented long before the execution of the
said Last Will and Testament could not be revoked by the later instrument; that the
supposed Last Will and Testament was executed on December 11, 1969, more than
one year after the filing of the complaint for annulment on October 9, 1968, when
said Manuela Buenavista was already senile and not of disposing mind; that while
Manuela Buenavista was able to sign with her own hand the several Deeds of Sale,
the supposed Last Will and Testament bears her thumbmark only; that Manuela
Buenavista had no more property to dispose of by will on December 11, 1969, when
she supposedly executed her Last Will and Testament.
On June 28, 1984, the Appellate Court denied the Motion for Reconsideration.
In their petition for review of the decision of the Court of Appeals, the petitioners
allege:
1. (1)That the Intermediate Appellate Court (now Court of Appeals) erred in declaring
valid the deeds of sale (Exhs. A, B, C and D) as a partition by an act inter
vivosconsidering that examining the said exhibits will reveal that it is not a
testament amounting to a will of Manuela Buenavista;
2. (2)That the Intermediate Appellate Court erred in ruling against Article 1347 of
the New Civil Code. (p. 126, Rollo.)

We find those contentions not well-taken.

Article 1080 of the New Civil Code allows a person to make a partition of his
estate either by an act inter vivos or by willand such partition shall be respected
insofar as it does not prejudice the legitime of the compulsory heirs. While the law

prohibits contracts upon future inheritance, the partition by the parent, as provided
in Art. 1080, is a case expressly authorized by law (Art. 1347, par. 2, Civil Code of
the Phil. by Padilla, 1987 Edition, p. 744.) Art. 1080 of the Civil Code clearly gives a
person two options in making a partition of his estate; either by an act inter vivos or
by WILL. When a person makes a partition by will, it is imperative that such
partition must be executed in accordance with the provisions of the law on wills;
however, when a person makes the partition of his estate by an act inter vivos, such
partition may even be oral or written, and need not be in the form of a will, provided
that the partition does not prejudice the legitime of compulsory heirs.
In numerous cases it has been held or stated that parol partitions may be sustained on the
ground of estoppel of the parties to assert the rights of a tenant in common as to parts of
land divided by parol partition as to which possession in severalty was taken and acts of
individual ownership were exercised. And a court of equity will recognize the agreement
and decree it to be valid and effectual for the purpose of concluding the right of the parties
as between each other to hold their respective parts in severalty.
A parol partition may also be sustained on the ground that the parties thereto have
acquiesced in and ratified the partition by taking possession in severalty, exercising acts of
ownership with respect thereto, or otherwise recognizing the existence of the partition.
(Hernandez vs. Andal, et al., 78 Phil. 196, 203.)

In the instant case, the respondent appellate court declared the Deeds of Sale
executed by Presentacion, Floserfina and Raquel, all surnamed Chavez (Exhs. A, B,
and C) in favor of Concepcion Chavez as evidence of a valid partition of the land in
question by and between Manuela Buenavista and her children as she not only gave
her authority thereto but also signed the sales. The Deeds of Sale (Exhs. A, B, and
C) are not contracts entered into with respect to future inheritance but a contract
perfected and consummated during the lifetime of Manuela Buenavista who signed
the same and gave her consent thereto. Such partition inter vivos, executed by the
property owner herself, is valid.
x x x As the defendants freely participated in the partition, they are now estopped from
denying and repudiating the consequences of their own voluntary acts. It is a general
principle of law that no one may be permitted to disavow and go back upon his own acts, or
to proceed contrary thereto. (Joaquin vs. Mitsumine, 34 Phil. 858.)
Where a piece of land has been included in a partition, and there is no allegation that
the inclusion was effected through improper means or without the petitioners knowledge,

the partition barred any further litigation on said title and operated to bring the property
under the control and jurisdiction of the court for proper disposition according to the tenor
of the partition. . . They cannot attack the partition collaterally x x x. (Ralla vs. Judge
Untalan, 172 SCRA 858, 865, citing the case of Torres vs. Encarnacion and De Borja, No. L4681, July 31, 1951, 89 Phil. 678.)

As well argued by counsel for the respondents in their memorandum, it would be

unjust and inequitable to allow Manuela Buenavista Vda. de Chavez to revoke the
sales she herself authorized as well as the sale she herself executed in favor of her
son only to execute a simulated sale in favor of her daughter Raquel who had
already profited from the sale she made of the property she had received in the
partition inter vivos; it would run counter to the doctrine that no person should be
allowed to unjustly enrich herself at the expense of another.
WHEREFORE, finding no reversible error in the decision of the Court of Appeals
in AC-G.R. No. CV-64708, the same is affirmed in toto. The petition for review is
dismissed for lack of merit, with costs against the petitioners.
SO ORDERED.
Narvasa (Chairman), Cruz, Gancayco and Medialdea, JJ., concur.
Decision affirmed. Petition dismissed.
Note.The sale by one co-owner of part of a particular lot co-owned is within his
right pro-indiviso is valid in its entirety but he may not convey a physical portion
with boundaries of the land owned in common. (Del Banco vs. Intermediate
Appellate Court, 156 SCRA 55.)
o0o

G.R. No. 152132. July 24, 2007.

LORDITO ARROGANTE, JOHNSTON ARROGANTE, ARME ARROGANTE, and

FE D. ARROGANTE, petitioners, vs. BEETHOVEN DELIARTE, Joined by
SPOUSE LEONORA DUENAS, respondents.
Civil Law; Contracts; Property; Partition; A contract entered into upon future
inheritance characterized as void under Article 1347, paragraph 2 of the Civil Code;
Requisites for the Application of the Law.The 1978 private deed of sale, insofar as it
disposed of Bernabes share in the conjugal partnership prior to his death, is void for being
a conveyance of the Deliarte siblings future inheritance. Article 1347, paragraph 2 of the
Civil Code characterizes a contract entered into upon future inheritance as void. The law
applies when the following requisites concur: (1) the succession has not yet been opened; (2)
the object of the contract forms part of the inheritance; and (3) the promissor has, with
respect to the object, an expectancy of a right which is purely hereditary in nature.
Same; Same; Same; The prohibition on contracts respecting future inheritance admits
of exceptions as when a person partitions his estate by an act inter vivos under Article 1080
of the Civil Code. True, the prohibition on contracts respecting future inheritance admits
of exceptions, as when a person partitions his estate by an act inter vivos under Article 1080
of the Civil Code. However, the private deed of sale does not purport to be a partition of
Bernabes estate as would exempt it from the application of Article 1347. Nowhere in the
said document does Bernabe separate, divide, and assign to his children his share in the
subject lot effective only upon his death. Indeed, the document does not even bear the
signature of Bernabe.
Same; Same; Same; Partition of property representing future inheritance cannot be
made effective during the lifetime of its owner.Neither did the parties demonstrate that
Bernabe undertook an oral partition of his estate. Although we have held on several
occasions that an oral or parole partition is valid, our holdings thereon were confined to
instances wherein the partition had actually been consummated, enforced, and recognized
by the parties. Absent a showing of an overt act by Bernabe indicative of an unequivocal
intent to partition his estate among his children, his knowledge and ostensible acquiescence
to the private deed of sale does not equate to an oral partition by an act inter vivos.Besides,

partition of property representing future inheritance cannot be made effective during the
lifetime of its owner.
Same; Parole Evidence; The failure of the deed of sale to express the true intent and
agreement of the parties supports the application of the parole evidence rule.The parole
evidence rule is applicable. While the application thereof presupposes the existence of a
valid agreement, the innominate contract between the parties has been directly put in issue
by the respondents. Verily, the failure of the deed of sale to express the true intent and
agreement of the parties supports the application of the parole evidence rule.
Contracts; Statute of Frauds; The Statute of Frauds applies only to executory, not to
completed, executed, or partially consummated contracts.We agree with both the lower and
the appellate courts that the Statute of Frauds is not applicable to the instant case. The
general rule is that contracts are valid in whatever form they may be. One exception thereto
is the Statute of Frauds which requires a written instrument for the enforceability of a
contract. However, jurisprudence dictates that the Statute of Frauds only applies to
executory, not to completed, executed, or partially consummated, contracts.

PETITION for review on certiorari of a decision of the Court of Appeals.

The facts are stated in the opinion of the Court.
Zosa and Quijano Law Offices for petitioners.
Florido and Associates for respondents.
NACHURA, J.:
This Petition for Review on Certiorari assails the Decision dated August 28, 2001 of
the Court of Appeals (CA) in CA-G.R. CV No. 58493 which affirmed the
Decision dated February 18, 1997 of the Regional Trial Court (RTC), Branch 10, of
Cebu City in an action for quieting of title and damages.
1

It appears that the lot in controversy, Lot No. 472-A (subject lot), is situated
in Poblacion Daanbantayan, Cebu, and was originally conjugal property of the
spouses Bernabe Deliarte, Sr. and Gregoria Placencia who had nine children,
including herein respondent Beethoven Deliarte and petitioner Fe Deliarte
Arrogante. The other petitioners, Lordito, Johnston, and Arme, Jr., all surnamed

Arrogante, are the children of Fe and, thus, nephews of Beethoven. Respondent

Leonora Duenas is the wife of Beethoven.
A series of misfortunes struck the Deliarte family. The first tragedy occurred when a
brother of Beethoven and Fe was hospitalized and eventually died in Davao.
Beethoven shouldered the hospitalization and other related expenses, including the
transport of the body from Davao to Cebu and then to Daanbantayan.
The next occurrence took place a year after, when Gregoria was likewise
hospitalized and subsequently died on July 29, 1978. Once again, Beethoven paid for
all necessary expenses. Soon thereafter, it was Bernabe, the parties ailing father,
who died on November 7, 1980. Not surprisingly, it was Beethoven who spent for
their fathers hospitalization and burial.
In between the deaths of Gregoria and Bernabe, on November 16, 1978, the
Deliarte siblings agreed to waive and convey in favor of Beethoven all their rights,
interests, and claims to the subject lot in consideration of P15,000.00. At the
signing of the deed of absolute sale, the siblings who failed to attend the family
gathering, either because they were dead or were simply unable to, were
represented by their respective spouses who signed the document on their
behalf. Bernabe, who was already blind at that time, was likewise present and
knew of the sale that took place among his children.
3

Thus, from then on, Beethoven occupied and possessed the subject lot openly,
peacefully, and in the concept of owner. He exercised full ownership and control over
the subject lot without any objection from all his siblings, or their heirs, until 1993
when the controversy arose. In fact, on March 26, 1986, all of Beethovens siblings,
except Fe, signed a deed of confirmation of sale in favor of Beethoven to ratify the
1978 private deed of sale.
5

Sometime in August 1993, petitioner Lordito Arrogante installed placards on the

fence erected by respondents, claiming that the subject lot was illegally acquired by
the latter. The placards depicted Beethoven as a land grabber who had
unconscionably taken the subject lot from Lordito who claimed that the lot is a
devise from his grandfather. Allegedly, the bequeathal was made in Bernabes last
will and testament which was, unfortunately, torn up and destroyed by Beethoven.
6

Thus, on November 10, 1993, respondents filed an action for quieting of title and
damages against the petitioners.
In their answer, the petitioners averred that Beethoven does not own the whole of
the subject lot because Bernabe was still alive in 1978 when Beethovens siblings
sold to him all their rights and claims to and interests in that lot. Thus, the siblings
could sell only their respective inheritance from one-half of the subject lot,
representing Gregorias share in the conjugal property. Corollarily, the petitioners
claimed that Fe continues to own 1/9 of one-half of the subject lot, comprising
Bernabes share of the property, which allegedly was not contemplated in the
conveyance in 1978. According to petitioners, this contention is supported by Fes
failure to sign the deed of confirmation of sale in 1986.
As regards the damaging placards, the petitioners asseverated that Lordito acted
on his own when he installed the same, and that this was resorted to merely to air
his grievance against his uncle, Beethoven, for claiming ownership of the entire lot.
After trial, the RTC rendered a Decision quieting title on the subject lot in favor
of respondents and directing petitioners, jointly and severally, to pay the
respondents P150,000.00 as moral damages, P25,000.00 as attorneys fees, and
P10,000.00 as litigation expenses.
On appeal, the CA affirmed the trial courts decision but deleted the award of
attorneys fees and litigation expenses. In ruling for the respondents, both the trial
and appellate courts upheld the validity of the 1978 sale as between the parties.
Considering that petitioner Fe signed the document and consented to the
transaction, she is now barred from repudiating the terms thereof. In this regard,
the RTC and the CA applied the parole evidence rule and allowed the introduction
of evidence on the additional consideration for the conveyance, namely, the expenses
incurred by Beethoven during the three tragedies that had befallen the Deliarte
family. Both courts found that the sale was already completely executed, thus
removing it from the ambit of the Statute of Frauds.
9

As for the award of moral damages, the trial and appellate courts held that the
other petitioners failure to prevent Lordito from putting up, or at least, removing
the placards, amounted to the defamation and opprobrium of Beethoven with their
knowledge and acquiescence. Thus, the assessment of moral damages was

appropriate, given the humiliation and embarrassment suffered by Beethoven

considering his stature and reputation in the community as an electrical engineer
handling several big projects.
However, petitioners insist that the lower courts erred in their rulings. They
maintain that the 1978 sale did not contemplate the alienation of Bernabes share
in the conjugal partnership as he failed to sign the private document. As such, the
courts application of the parole evidence rule and the Statute of Frauds were
erroneous. In the same vein, the petitioners posit that both courts ruling that they
are jointly and severally liable for moral damages is inconsistent with the evidence
on record that Lordito was the sole author of the damaging placards.
In this appeal, the issues for the resolution of this Court are:
I.
WHETHER OR NOT THE PRIVATE DEED OF SALE EXECUTED IN 1978 IS A VALID
CONVEYANCE OF THE ENTIRE LOT 472-A TO PETITIONER BEETHOVEN
DELIARTE.
II.
WHETHER OR NOT THE PAROLE EVIDENCE RULE IS APPLICABLE TO THIS
CASE.
III.
WHETHER OR NOT THE STATUTE OF FRAUDS IS APPLICABLE TO THIS CASE.
IV.
WHETHER OR NOT THE PETITIONERS ARE JOINTLY AND SEVERALLY LIABLE
FOR MORAL DAMAGES.

At the outset, we note that both the lower and the appellate courts failed to identify
the applicable law.
First. The 1978 private deed of sale, insofar as it disposed of Bernabes share in
the conjugal partnership prior to his death, is void for being a conveyance of the
Deliarte siblings future inheritance.

Article 1347, paragraph 2 of the Civil Code characterizes a contract entered into
upon future inheritance as void. The law applies when the following requisites
concur: (1) the succession has not yet been opened; (2) the object of the contract
forms part of the inheritance; and (3) the promissor has, with respect to the object,
an expectancy of a right which is purely hereditary in nature.
10

11

In this case, at the time the contract was entered into, succession to Bernabes
estate had yet to be opened, and the object thereof, i.e., Bernabes share in the
subject lot, formed part of his childrens inheritance, and the children merely had an
inchoate hereditary right thereto.
True, the prohibition on contracts respecting future inheritance admits of
exceptions, as when a person partitions his estate by an act inter vivos under Article
1080 of the Civil Code. However, the private deed of sale does not purport to be a
partition of Bernabes estate as would exempt it from the application of Article 1347.
Nowhere in the said document does Bernabe separate, divide, and assign to his
children his share in the subject lot effective only upon his death. Indeed, the
document does not even bear the signature of Bernabe.
12

13

Neither did the parties demonstrate that Bernabe undertook an oral partition of his
estate. Although we have held on several occasions that an oral or parole partition is
valid, our holdings thereon were confined to instances wherein the partition had
actually been consummated, enforced, and recognized by the parties. Absent a
showing of an overt act by Bernabe indicative of an unequivocal intent to partition
his estate among his children, his knowledge and ostensible acquiescence to the
private deed of sale does not equate to an oral partition by an act inter
vivos. Besides, partition of property representing future inheritance cannot be made
effective during the lifetime of its owner.
14

15

Considering the foregoing, it follows that the 1986 deed of confirmation of sale
which sought to ratify the 1978 sale likewise suffers from the same infirmity. In
short, the 1986 deed is also void.
16

Nevertheless, it is apparent that Bernabe treated his share in the subject lot as
his childrens present inheritance, and he relinquished all his rights and claim
thereon in their favor subject to Beethovens compensation for the expenses he
initially shouldered for the family. The records reveal that Bernabe, prior to his
17

hospitalization and death, wanted to ensure that his children attended to the
expenditure relating thereto, and even articulated his desire that such surpass the
provision for both his son and wife, Beethovens and Fes brother and mother,
respectively. Their arrangement contemplated the Deliarte siblings equal
responsibility for the familys incurred expenses.
18

We take judicial notice of this collective sense of responsibility towards family. As

with most nuclear Filipino families, the Deliarte siblings endeavored to provide for
their parents or any member of their family in need. This was evident in Florenda
Deliarte Nacuas, the youngest Deliarte siblings, remittance to her parents of her
salary for two years so they could redeem the subject lot.
19

Florenda corroborated the testimony of Beethoven that their father was present
during, and was aware of, the transaction that took place among his children. The
1978 deed of sale, albeit void, evidenced the consent and acquiescence of each
Deliarte sibling to said transaction. They raised no objection even after Beethoven
forthwith possessed and occupied the subject lot.
20

The foregoing arrangement, vaguely reflected in the void deed of sale, points to a
meeting of the minds among the parties constitutive of an innominate contract, akin
to both an onerous and a remuneratory donation. In this regard, Bernabes waiver
and relinquishment of his share in the subject lot is effectively a donation inter
vivos to his children. However, the gratuitous act is coupled with an onerous cause
equal accountability of the Deliarte siblings for the hospitalization and death
expenses of deceased family members to be taken from their shares in the subject
lot. In turn, the remunerative cause pertains to Beethovens recompense for the
family expenses he initially shouldered.
21

During his lifetime, Bernabe remained the absolute owner of his undivided interest
in the subject lot. Accordingly, he could have validly disposed of his interest therein.
His consent to the disposition of the subject lot in favor of Beethoven, agreed upon
among his children, is evident, considering his presence in, knowledge of, and
acquiescence to the transaction. Further, the arrangement was immediately effected
by the parties with no objection from Bernabe or any of the Deliarte siblings,
including herein petitioner Fe. Ineluctably, the actual arrangement between the
parties included Bernabe, and the object thereof did not constitute future
inheritance.

Second. The parole evidence rule is applicable. While the application thereof
presupposes the existence of a valid agreement, the innominate contract between
the parties has been directly put in issue by the respondents. Verily, the failure of
the deed of sale to express the true intent and agreement of the parties supports the
application of the parole evidence rule.
22

Contrary to petitioners contention, the absence of Bernabes signature in the

1978 deed of sale is not necessarily conclusive of his dissent or opposition to the
effected arrangement. As previously adverted to, the agreement had multiple causes
or consideration, apart from the P15,000.00 stated in the deed of sale. To repeat, the
agreement between the parties had both an onerous and a remunerative cause. Also
worthy of note is the moral consideration for the agreement given the relationship
between the parties.
Third. We agree with both the lower and the appellate courts that the Statute of
Frauds is not applicable to the instant case.
The general rule is that contracts are valid in whatever form they may be. One
exception thereto is the Statute of Frauds which requires a written instrument for
the enforceability of a contract. However, jurisprudence dictates that the Statute of
Frauds only applies to executory, not to completed, executed, or partially
consummated, contracts.
23

24

25

In the case at bench, we find that all requisites for a valid contract are present,
specifically: (1) consent of the parties; (2) object or subject matter, comprised of the
parties respective shares in the subject lot; and (3) the consideration, over and
above the P15,000.00 stipulated price. We note that the agreement between the
parties had long been consummated and completed. In fact, the agreement clearly
contemplated immediate execution by the parties. More importantly, the parties,
including petitioner Fe, ratified the agreement by the acceptance of benefits
thereunder.
26

One other thing militates against Fes claim of ownershipsilence and palpable
failure to object to the execution of the agreement. Fe insists that she only intended
to sell her share of the lot inherited from her mothers estate, exclusive of her
fathers share therein.

We are not persuaded by the belated claim. This afterthought is belied by the
express stipulations in the 1978 deed of sale that the heirs of Bernabe and Gregoria,
absolutely sell, quitclaim, and transfer the subject lot in favor of Beethoven.
Although a void contract is not a source of rights and obligations between the
parties, the provisions in the written agreement and their signature thereon are
equivalent to an express waiver of all their rights and interests in the entire lot in
favor of Beethoven, regardless of which part pertained to their mothers or fathers
estate.
Truly significant is the fact that in all the years that Beethoven occupied the
subject lot, Fe never disturbed the former in his possession. Neither did she present
her other siblings to buttress her contradicting claim over the subject lot. Likewise,
she never asked for a partition of the property even after the death of their father,
Bernabe, to settle his estate, or when her other siblings executed the deed of
confirmation of sale in 1986. Fe also does not pretend to share in the payment of
realty taxes thereon, but merely advances the claim that Priscillana, one of their
siblings, had already paid said taxes. Ultimately, petitioner Fe is estopped from
staking a claim on the subject lot and wresting ownership therein from Beethoven.
27

Our holding in the case of Tinsay v. Yusay is still good law, thus:
28

Juana Servando not being a party to the partition agreement Exhibit 1, the agreement
standing alone was, of course, ineffective as against her. The attempt to partition her land
among her heirs, constituting a partition of future inheritance was invalid under the second
paragraph of Article 1271 of the Civil Code and for the same reason the renunciation of all
interest in the land which now constitutes lots Nos. 241 and 713 made by the appellants in
favor of the children of Jovito Yusay would likewise be of no binding force as to the
undivided portion which belonged to Juan Servando. But if the parties entered into the
partition agreement in good faith and treated all of the land as a present inheritance, and if
the appellants on the strength of the agreement obtained their Torrens title to the land
allotted to them therein, and if Perpetua Sian in reliance on the appellants renunciation of
all interest claimed by her on behalf of her children in the cadastral case refrained from
presenting any opposition to the appellants claim to the entire fee in the land assigned to
them in the partition agreement and if the appellants after the death of Juana Servando
continued to enjoy the benefits of the agreement refusing to compensate the heirs of Jovito
Yusay for the latters loss of their interest in lots Nos. 2 and 744 through the registration of
the lots in the name of the appellants and the subsequent alienation of the same to innocent
third parties, said appellants are now estopped from repudiating the partition agreement of

1911 and from claiming any further interest in lots Nos. 241 and 713. There is, however, no
reason why they should not be allowed to share in the distribution of the other property left
by Juana Servando.

Fourth. As to the lower courts award of moral damages, we sustain respondents

entitlement thereto. Undeniably, respondents suffered besmirched reputation,
wounded feelings, and social humiliation due to the damaging placards. The injury
is aggravated because of the relationship among the parties. Respondent Beethoven
was able to prove that his nephews, petitioners Lordito, Johnston, and Arme, Jr.,
stayed with him at some point, and that he financially supported and trained them
to be electricians.
29

30

Yet, Lordito denies malice in the aforesaid act. He argues that his only quarrel
with Beethoven stems from the latters claim of ownership over the subject lot which
was, supposedly, already bequeathed to him by his grandfather, Bernabe. Lordito
maintains that his claim is valid, supported by a will Beethoven had torn up, which
allegedly negates malice in his act of putting up the placards.
We are not convinced.
To begin with, the supposed devise to Lordito appears to be void. Considering
that Bernabes estate consisted merely of his conjugal share in the subject lot, the
bequeathal infringes on his compulsory heirs legitimes, including that of Lorditos
mother, Fe. Lorditos claim, therefore, is only subordinate to Beethovens claim as a
compulsory heir, even without delving into the innominate contract between the
parties. In all, the ascription of malice and Lorditos corresponding liability for
moral damages is correct given the words he employed in the placards.
31

However, we agree with petitioners that there is a dearth of evidence pointing to

their collective responsibility for Lorditos act.
Corollary thereto, Lordito admits and claims sole responsibility for putting up
the placards. The other petitioners specific participation in the tortious act was not
proven. Failure to prevent Lordito or command him to remove the placards, alone,
does not justify the finding that all the petitioners are jointly and severally liable. It
does not suffice that all the petitioners were moved by a common desire to acquire
the subject property, absent any proof that they individually concurred in Lorditos
act.

Entrenched is the rule that the rights of a party cannot be prejudiced by an act,
declaration, or omission of another. The exception under Section 32, Rule 130 of the
Rules of Court does not obtain in this instance. The other petitioners acquiescence
to and apparent concurrence in Lorditos act cannot be inferred merely from their
failure to remove the placards or reprimand Lordito. While the placards indeed
defamed Beethoven, there is nothing that directly links the other petitioners to this
dastardly act.
32

WHEREFORE, premises considered, the petition is PARTIALLY GRANTED. The

August 28, 2001 Decision of the Court of Appeals is hereby MODIFIED. Petitioner
Lordito Arrogante is held solely liable to respondents for moral damages in the
amount of P150,000.00. The quieting of title in favor of respondents is hereby
AFFIRMED. No costs.
SO ORDERED.
Ynares-Santiago (Chairperson), Austria-Martinezand Chico-Nazario,

JJ.,

concur.
Petition partially granted, judgment modified.
Note.The settlement of the issue of ownership is the first stage in an action for
partition. (Ocampo vs. Ocampo,427 SCRA 545 [2004])
o0o
G.R. No. 114151. September 17, 1998.

MAURICIA ALEJANDRINO, petitioner, vs. THE HONORABLE COURT OF

APPEALS, HON. BENIGNO G. GAVIOLA, RTC-9, CEBU CITY, and LICERIO P.
NIQUE, respondents.
Ownership; Co-Ownership; Partition; Succession; Where there are two or more heirs, the
whole estate of the decedent is, before partition, owned in common by such heirs, subject to
the payment of the debts of the deceased, and each co-owner exercises his rights over the
whole property and may use and enjoy the same with no other limitation than that he shall
not injure the interests of his co-owners.Article 1078 of the Civil Code provides that where
there are two or more heirs, the whole estate of the decedent is, before partition, owned in
common by such heirs, subject to the payment of the debts of the deceased. Under a co-

ownership, the ownership of an undivided thing or right belongs to different persons. Each
co-owner of property which is held pro indiviso exercises his rights over the whole property
and may use and enjoy the same with no other limitation than that he shall not injure the
interests of his co-owners. The underlying rationale is that until a division is made, the
respective share of each cannot be determined and every co-owner exercises, together with
his co-participants, joint ownership over the pro indiviso property, in addition to his use and
enjoyment of the same.
Same; Same; Same; Same; Partition of the estate of a decedent may only be effected by
(1) the heirs themselves extrajudicially, (2) by the court in an ordinary action for partition, or
in the course of administration proceedings, (3) by the testator himself, and (4) by the third
person designated by the testator.The legality of Laurencias alienation of portions of the
estate of the Alejandrino spouses was settled in Civil Case No. CEB-7038. The decision in
that case had become final and executory with Laurencias withdrawal of her appeal. When
private respondent filed a motion for the segregation of the portions of the property that
were adjudged in his favor, private respondent was in effect calling for the partition of the
property. However, under the law, partition of the estate of a decedent may only be effected
by (1) the heirs themselves extrajudicially, (2) by the court in an ordinary action for
partition, or in the course of administration proceedings, (3) by the testator himself, and (4)
by the third person designated by the testator.
Same; Same; Same; Same; Actions; Quieting of Title;Partition of an estate may not be
ordered in an action for quieting of title.The trial court may not, therefore, order partition
of an estate in an action for quieting of title. As there is no pending administration
proceedings, the property of the Alejandrino spouses can only be partitioned by the heirs
themselves in an extrajudicial settlement of estate. However, evidence on the extrajudicial
settlement of estate was offered before the trial court and it became the basis for the order
for segregation of the property sold to private respondent. Petitioner Mauricia does not deny
the fact of the execution of the deed of extrajudicial settlement of the estate. She only
questions its validity on account of the absence of notarization of the document and the nonpublication thereof.
Same; Same; Same; Same; Notarization; Extrajudicial Settlements; Notarization of a
deed of extrajudicial settlement has the effect of making it a public document that can bind
third parties; By the provision of Art. 1082 of the Civil Code, it appears that when a co-owner
sells his inchoate right in the co-ownership, he expresses his intention to put an end to
indivision among (his) co-heirs.Notarization of the deed of extrajudicial settlement has
the effect of making it a public document that can bind third parties. However, this formal
requirement appears to be superseded by the substantive provision of the Civil Code that
states: ART. 1082. Every act which is intended to put an end to indivision among co-heirs

and legatees or devisees is deemed to be a partition, although it should purport to be a sale,

an exchange, a compromise, or any other transaction. By this provision, it appears that
when a co-owner sells his inchoate right in the co-ownership, he expresses his intention to
put an end to indivision among (his) co-heirs. Partition among co-owners may thus be
evidenced by the overt act of a co-owner of renouncing his right over the property regardless
of the form it takes. In effect, Laurencia expressed her intention to terminate the coownership by selling her share to private respondent.
Same; Same; Same; Same; Same; Same; The partition of inherited property need not be
embodied in a public document.The execution of the deed of extrajudicial settlement of
the estate reflected the intention of both Laurencia and petitioner Mauricia to physically
divide the property. Both of them had acquired the shares of their brothers and therefore it
was only the two of them that needed to settle the estate. The fact that the document was
not notarized is no hindrance to its effectivity as regards the two of them. The partition of
inherited property need not be embodied in a public document. In this regard, Tolentino
subscribes to that opinion when he states as follows: x x x. We believe, however, that the
public instrument is not essential to the validity of the partition. This is not one of those
contracts in which form is of the essence. The public instrument is necessary only for the
registration of the contract, but not for its validity.
Same; Same; Same; Same; Same; Same; The fact that a deed of extrajudicial settlement
was not notarized is immaterial where the heir questioning it admits having executed it.
The deed of extrajudicial settlement executed by Mauricia and Laurencia evidence their
intention to partition the property. It delineates what portion of the property belongs to
each other. That it was not notarized is immaterial in view of Mauricias admission that she
did execute the deed of extrajudicial settlement. Neither is the fact that the trial court only
mentioned the existence of such document in its decision in Civil Case No. CEB-7028. That
document was formally offered in evidence and the court is deemed to have duly considered
it in deciding the case. The court has in its favor the presumption of regularity of the
performance of its task that has not been rebutted by petitioner Mauricia.
Same; Same; Same; Same; Same; Same; Where two co-heirs acquired the shares of their
co-heirs, only the two need to participate in the extrajudicial settlement of estate. Neither
may the fact that the other heirs of the Alejandrino spouses, named Marcelino, Gregorio,
Ciriaco and Abundio did not participate in the extrajudicial settlement of estate affect its
validity. In her amended complaint in Civil Case No. CEB-11673, petitioner Mauricia
herself admitted having acquired by purchase the rights over the shares of her brothers.
Courts; Judgments; A court may issue an order clarifying its decision that had become
final and executory in order that the execution thereof will not be rendered futile.The trial

court, therefore, did not abuse its discretion in issuing the order for the segregation of the
property. In so doing, it was merely reiterating the partition of the property by petitioner
Mauricia and her sister Laurencia that was embodied in the deed of extrajudicial
settlement of estate. The order may likewise be deemed as a clarification of its decision that
had become final and executory. Such clarification was needed lest proper execution of the
decision be rendered futile.
Same; Same; Forum Shopping; Pleadings and Practice; Res Judicata; Elements; Forum
shopping exists where the elements of litis pendentia are present or where a final judgment
in one case will amount to res judicata in the other.The Court finds no merit in the issue of
forum shopping raised by private respondent. Forum shopping exists where the elements
of litis pendentia are present or where a final judgment in one case will amount to res
judicata in the other. Because the judgment in Civil Case No. CEB-7028 is already final and
executory, the existence of res judicata is determinative of whether or not petitioner is
guilty of forum shopping. For the principle of res judicata to apply, the following must be
present: (1) a decision on the merits; (2) by a court of competent jurisdiction; (3) the decision
is final; and (4) the two actions involve identical parties, subject matter and causes of
action. The fourth element is not present in this case. The parties are not identical because
petitioner was not impleaded in Civil Case No. CEB-7028. While the subject matter may be
the same property of the Alejandrino spouses, the causes of action are different. Civil Case
No. CEB-7028 is an action for quieting of title and damages while Civil Case No. CEB11673 is for redemption and recovery of properties.
Same; Same; Same; Same; Attorneys; A charge of forum shopping may not be anchored
simply on the fact that the counsel for different plaintiffs in two cases is one and the same.
It appears moreover, that private respondents argument on forum shopping is anchored on
the fact that counsel for both plaintiffs in those two cases is one and the same, thereby
implying that the same counsel merely wanted to prevail in the second case after having
failed to do so in the first. The records show, however, that Laurencia executed an affidavit
consenting to the appearance of her counsel in any case that petitioner Mauricia might file
against private respondent. She affirmed in that affidavit that she could be included even as
a defendant in any case that petitioner Mauricia would file because she fully agree(d) with
whatever cause of action Mauricia would have against private respondent. Such a
statement can hardly constitute a proper basis for a finding of forum shopping, much less
evidence of misconduct on the part of counsel. As noted earlier, the two cases have different
causes of action and the two plaintiffs who would have conflicting claims under the facts of
the case actually presented a united stand against private respondent. If there is any
charge that could be leveled against counsel, it is his lack of thoroughness in pursuing the
action for quieting of title. As counsel for plaintiff therein, he could have impleaded
petitioner Mauricia knowing fully well her interest in the property involved in order to avoid

multiplicity of suits. However, such an omission is not a sufficient ground for administrative
sanction.

PETITION for review on certiorari of a decision of the Court of Appeals.

The facts are stated in the opinion of the Court.
Sitoy, Go & Associates for petitioner.
Reuben B. Baldoza for private respondent.
ROMERO, J.:
Questioned in this petition for review on certiorari is the Decision of the Court of
Appeals which ruled that the trial court, in an action for quieting of title, did not act
in excess of jurisdiction when it issued an order for the segregation of property, after
the finality of its decision.
1

The facts show that the late spouses Jacinto Alejandrino and Enrica Labunos left
their six children named Marcelino, Gregorio, Ciriaco, Mauricia, Laurencia and
Abundio a 219-square-meter lot in Mambaling, Cebu City identified as Lot No. 2798
and covered by Transfer Certificate of Title No. 19658. Upon the demise of the
Alejandrino spouses, the property should have been divided among their children
with each child having a share of 36.50 square meters. However, the estate of the
Alejandrino spouses was not settled in accordance with the procedure outlined in
the Rules of Court.
Petitioner Mauricia (one of the children) allegedly purchased 12.17 square meters
of Gregorios share, 36.50 square meters of Ciriacos share and 12.17 square meters
of Abundios share thereby giving her a total area of 97.43 square meters, including
her own share of 36.50 square me-ters. It turned out, however, that a third party
named Licerio Nique, the private respondent in this case, also purchased portions of
the property, to wit: 36.50 square meters from Laurencia, 36.50 square meters from
Gregorio through Laurencia, 12.17 square meters from Abundio also through
Laurencia and 36.50 square meters from Marcelino or a total area of 121.67 square
meters of the Alejandrino property.
2

However, Laurencia (the alleged seller of most of the 121.67 square meters of the
property) later questioned the sale in an action for quieting of title and damages
against private respondent Nique. It was docketed as Civil Case No. CEB-7038 in
the Regional Trial Court of Cebu City, Branch 9, presided by Judge Benigno G.
Gaviola. In due course, the lower court rendered a decision on November 27, 1990
disposing of the case as follows:
WHEREFORE, the Court hereby renders judgment in favor of defendant and against
plaintiff, dismissing the complaint filed by plaintiff against defendant, and on the
Counterclaim and prayer of defendant in its Answer, the Court hereby declares defendant
as the owner in fee simple of the share of plaintiff Laurencia Alejandrino and the shares of
Marcelino, Gregorio and Abundio, all surnamed Alejandrino, of the parcel of land known as
Lot No. 2798 and covered by Transfer Certificate of Title No. 19658 which 4 shares totals an
area of 146 square meters more or less; and the Court further Orders plaintiff to:
1. 1.Vacate the premises subject of the complaint and surrender the property to
defendant to the extent of the 4 shares aforementioned;
2. 2.Pay the defendant the amount of P15,000.00 as litigation and necessary expenses;
the sum of P10,000.00 as reimbursement for attorneys fees; the sum of P10,000.00
as moral damages and P10,000.00 as exemplary damages;
3. 3.Plus costs.
SO ORDERED.

Laurencia appealed the decision to the Court of Appeals under CA-G.R. CV No.
33433 but later withdrew the same. On April 13, 1992, the Court of Appeals
considered the appeal withdrawn in accordance with Rule 50 of the Rules of Court.
4

Meanwhile, herein petitioner Mauricia Alejandrino filed on May 5, 1992 before

the Regional Trial Court of Cebu City, Branch VII, a complaint for redemption and
recovery of properties with damages against private respondent Nique that was
docketed as Civil Case No. CEB-11673. Adelino B. Sitoy, Laurencias counsel in Civil
Case No. CEB-7038, filed Civil Case No. CEB-11673 for petitioner Mauricia.
The amended complaint in the latter case dated May 17, 1992 alleged that
private respondent Nique never notified petitioner Mauricia of the purchase of
121.67 square meters of the undivided Lot No. 2798 nor did he give petitioner

Mauricia the preemptive right to buy the area as a co-owner of the same lot. As such
co-owner, petitioner Mauricia manifested her willingness to deposit with the court
the amount of P29,777.78, the acquisition cost of the portion purchased by private
respondent Nique. Petitioner Mauricia also alleged that she demanded from private
respondent the area of around 24.34 square meters that the latter had unduly,
baselessly and maliciously claimed as his own but which, as part of Lot No. 2798,
actually belongs to her. The amended complaint prayed that petitioner Mauricia be
allowed to redeem the area of 121.67 square meters under the redemption price of
P29,777.78 and that private respondent Nique be ordered to execute the necessary
documents for the redemption and the eventual transfer of certificate of title to her.
The amended complaint further prayed for the return to petitioner Mauricia of the
24.34-square-meter portion of the lot and for damages amounting to P115,000 and
attorneys fees of P30,000.
On August 2, 1993, the lower court granted the motion to admit the amended
complaint and forthwith ordered the defendant therein to file an amended answer.
In Civil Case No. CEB-7038 in the meantime, private respondent filed a motion
for the segregation of the 146-square-meter portion of the property that had been
declared by the trial court as his own by virtue of purchase. On May 6, 1993, the
trial court issued an order the pertinent portions of which read as follows:
O R D E R
For resolution is a Motion to Order Segregation of 146 Square Meters In Lot No. 2798
dated January 15, 1993 filed by defendant and the Opposition thereto dated February 2,
1992 by plaintiff.
Movant-defendant also filed a rejoinder dated February 15, 1993 to the Opposition.
After going over the allegations in the motion, the opposition thereto and the rejoinder
as well as the records of the case, particularly the decision rendered by this Court and the
Order dated October 28, 1992, denying the motion for reconsideration filed by plaintiffs and
allowing the issuance of a writ of execution, the Court is inclined to Grant the instant
motion.
xxx

xxx

xxx

xxx

In addition thereto, the Court makes the following observation:

1. 1.Plaintiff (oppositor) has a total share of 146 square meters. This is admitted by her
in her complaint (par. 4 thereof). In the decision rendered by this Court, this share
now belongs to defendant movant by way of sale. The decision of this Court has long
become final.
2. 2.The total area of the land is 219 sq. meters (par. 2 of complaint), thus, the share of
Mauricia Alejandrino is only 73 square meters.
3. 3.As early as June 10, 1983, Mauricia Alejandrino and Laurencia Alejandrino had
entered into an Extrajudicial Settlement of Estate whereby they agreed to divide
the land subject of this case with Laurencia Alejandrino owning 146 square
meters in the frontage and Mauricia Alejandrino owning 75 square meters in the
back portion (Exh. 16, Extrajudicial Settlement of Estate, par. 1) (italics supplied),
and that the parties assure each other and their successor in interest that a right of
way of two meters is granted to each party by the other permanently (Exh. 16, par.
2). This partition is signed by the parties and their witnesses. Although not
notarized, it is certainly valid as between the parties, Maurecia (sic) Alejandrino,
being an immediate party, may not renege on this.
4. 4.Since the share of defendant Licerio P. Nique is specifically known to be 146 square
meters, and that its location shall be on the frontage of the property while the 73
square meters of Maurecia (sic) Alejandrino shall be at the back portion, then, the
Court cannot see its way clear, why the 146 sq. meters share of defendant may not
be segregated.
5. 5.The contention by oppositor that the segregation of defendants share of 146 sq.
meters from Lot No. 2798 was not decreed in the judgment is a rather narrow way
of looking at the judgment. Paragraph 1 of the dispositive portion of the judgment
by this Court, Orders plaintiff to vacate the premises subject of the complaint and
surrender the property to defendant to the extent of the 4 shares aforementioned.
The 4 shares of Laurencia Alejandrino of 146 sq. meters can be segregated because
Laurencia and Maurecia had already executed an extrajudicial partition indicating
where their respective shares shall be located (Exh. 16). To deny the segregation is
to make the decision of this Court just about valueless is not altogether useless.
The matter of allowing the segregation should be read into the decision.
The bottomline is still that plaintiff Laurencia, despite the fact that the decision of this
Court had long become final; and despite the fact that she even withdraw (sic) her appeal,
she still is enjoying the fruits of the property to the exclusion of the rightful owner.

WHEREFORE, the Court hereby Grants the motion. The defendant Licerio Nique may
proceed to segregate his 2146 (sic) sq. meters from Lot No. 2798 covered by TCT No. 19658,
by having the same surveyed by a competent Geodetic Engineer, at the expense of movantdefendant.
SO ORDERED.

Petitioner Mauricia questioned this order of the lower court in a petition for
certiorari and prohibition with prayer for the issuance of a writ of preliminary
injunction filed before the Court of Appeals. In due course, the Court of Appeals
dismissed the petition in a Decision promulgated on August 25, 1993.
The Court of Appeals stated that, in issuing the questioned order of May 6, 1993,
the respondent court was merely performing its job of seeing to it that execution of
a final judgment must conform to that decreed in the dispositive part of the
decision. It ratiocinated thus:
x x x. In ordering the segregation of the 146 square meters, respondent Judge correctly
referred to the text of the decision to ascertain which portion of the land covered by TCT No.
19658 was actually sold by Laurencia Alejandrino (sister of herein petitioner Mauricia) to
private respondent Nique. The respondent Judge did not err in relying upon Exhibit 16,
the Deed of Extrajudicial Settlement, dated June 10, 1983, mentioned in page 3 of the
Decision. Pertinent portion of Exhibit 16 reads:
NOW, THEREFORE, the above-named parties-heirs hereby stipulates (sic), declare and agree as
follows:
1. 1.That the parties have agreed to divide the parcel of land with Laurencia Alejandrino
owning 146 square meters in the frontageand Mauricia Alejandrino 73 square meters in the
back portions;
2. 2.That the parties mutually and reciprocally assure each other and their successor of
interest (sic) that a right of way of two meters is granted to each party to the other permanently. (italics supplied, Annex 1, Comment, p. 65, Rollo)

duly signed by herein petitioner and witnessed by private respondent Nique. It readily
reveals that when Laurencia subsequently sold her shares to herein private respondent, per
the Deed of Absolute Sale dated October 29, 1986 (Exhs. B and 10), the parties must have
referred to the 146 square meters in the frontage described in said document, Exhibit 16.
Laurencia had no authority to sell more, or, less, than that agreed upon in the extrajudicial
settlement between her and herein petitioner Mauricia. Insofar as the latter is concerned,

she is estopped from claiming that said extrajudicial settlement was a fatally defective
instrument because it was not notarized nor published. What is important is that private
respondent personally knew about Laurencia and Mauricias agreement because he was a
witness to said agreement and he relied upon it when he purchased the 146 square meters
from Laurencia.
It cannot be validly claimed by petitioner that she was deprived of her property without
due process of law considering that private respondent is merely segregating the portion of
the land actually sold to him by Laurencia Alejandrino and it does not affect the 73 square
meters that properly pertain to petitioner.
Moreover, the Supreme Court has ruled that where there is ambiguity caused by an
omission or mistake in the dispositive portion of a decision the court may clarify such
ambiguity by an amendment even after the judgment had become final, and for this
purpose it may resort to the pleadings filed by the parties, the courts finding of facts and
conclusions of law as expressed in the body of the decision (Republic Surety and Insurance
Co., Inc., et al. versus Intermediate Appellate Court, et al., 152 SCRA 309). The assailed
order, in effect, clarifies the exact location of the 146 square meters pursuant to Exhibit 16.
Respondent court did not act in excess of its jurisdiction. Hence, writs of certiorari and
prohibition do not lie in this case.
7

Petitioner Mauricia filed a motion for the reconsideration of the Court of Appeals
decision. However, on February 15, 1994, the Court of Appeals denied the same for
lack of merit there being no new ground or compelling reason that justifies a
reconsideration of its Decision.
8

In the instant petition for review on certiorari, petitioner assails the decision of
the Court of Appeals, contending that the lower court acted beyond its jurisdiction
in ordering the segregation of the property bought by private respondent as the
same was not decreed in its judgment, which had long become final and executory.
Petitioner argues that partition of the property cannot be effected because private
respondent is also a defendant in Civil Case No. CEB-11673. She asserts that
Exhibit 16, the extrajudicial settlement of estate referred to in the questioned order
of the lower court, was not discussed in the decision of the lower court and even if it
were, she could not be bound thereby considering that she was not a party litigant
in Civil Case No. CEB-7038. She questions the validity of the deed of extrajudicial
settlement because it was not notarized or published.

In his comment on the petition, private respondent alleges that although

petitioner was not a party litigant inCivil Case No. CEB-7038, she is estopped from
questioning the decision in that case and filing the instant petition because she had
knowledge of the existence of said case where res judicata had set in. He adds that
the instant petition was filed in violation of Circular No. 28-91 on forum shopping
in that the Petitioner in the instant petition whose counsel is also the counsel of
plaintiff-appellant Laurencia Alejandrino in CA-G.R. CV No. x x x, had filed a civil
actionCivil Case No. CEB-11673 x x x for REDEMPTION & RECOVERY OF
PROPERTIES WITH DAMAGES, which is presently pending before Branch 7 of the
Regional Trial Court of Cebu City. He asserts that the lower court did not exceed
its jurisdiction and/or commit grave abuse of discretion in granting his motion for
segregation of the 146 square meters of the land involved that rightfully belonged to
him in accordance with the decision of the lower court. He charges counsel for
petitioner with exhibiting unethical conduct and practice in appearing as counsel
for petitioner in Civil Case No. CEB-11673 after he had appeared for complainant
Laurencia in CA-G.R. CV No. 33433 or Civil Case No. CEB-7038. Under the
circumstances of this case, the ultimate issue that needs determination is whether
or not as an heir of the Alejandrino property, Laurencia may validly sell specific
portions thereof to a third party.
Article 1078 of the Civil Code provides that where there are two or more heirs,
the whole estate of the decedent is,before partition, owned in common by such heirs,
subject to the payment of the debts of the deceased. Under a co-ownership, the
ownership of an undivided thing or right belongs to different persons. Each coowner of property which is held pro indiviso exercises his rights over the whole
property and may use and enjoy the same with no other limitation than that he
shall not injure the interests of his co-owners. The underlying rationale is that until
a division is made, the respective share of each cannot be determined and every coowner exercises, together with his co-participants, joint ownership over the pro
indiviso property, in addition to his use and enjoyment of the same.
9

10

Although the right of an heir over the property of the decedent is inchoate as long as
the estate has not been fully settled and partitioned, the law allows a co-owner to
exercise rights of ownership over such inchoate right. Thus, the Civil Code provides:
11

ART. 493. Each co-owner shall have the full ownership of his part and of the fruits and
benefits pertaining thereto, and he may therefore alienate, assign or mortgage it, and even

substitute another person in its enjoyment, except when personal rights are involved. But
the effect of the alienation or the mortgage, with respect to the co-owners, shall be limited
to the portion which may be allotted to him in the division upon the termination of the coownership.

With respect to properties shared in common by virtue of inheritance, alienation of

a pro indiviso portion thereof is specifically governed by Article 1088 that provides:
ART. 1088. Should any of the heirs sell his hereditary rights to a stranger before the
partition, any or all of the co-heirs may be subrogated to the rights of the purchaser by
reimbursing him for the price of the sale, provided they do so within the period of one
month from the time they were notified in writing of the sale by the vendor.

In the instant case, Laurencia was within her hereditary rights in selling her pro
indiviso share in Lot No. 2798. However, because the property had not yet been
partitioned in accordance with the Rules of Court, no particular portion of the
property could be identified as yet and delineated as the object of the sale. Thus,
interpreting Article 493 of the Civil Code providing that an alienation of a co-owned
property shall be limited to the portion which may be allotted to (the seller) in the
division upon the termination of the co-ownership, the Court said:
x x x (p)ursuant to this law, a co-owner has the right to alienate his pro-indiviso share in
the co-owned property even without the consent of the other co-owners. Nevertheless, as a
mere part owner, he cannot alienate the shares of the other co-owners. The prohibition is
premised on the elementary rule that no one can give what he does not have ( Nemo dat
quod non habet). Thus, we held in BailonCasilao vs. Court of Appeals (G.R. No. 78178, April
15, 1988, 160 SCRA 738, 745), viz.:
x x x since a co-owner is entitled to sell his undivided share, a sale of the entire property by one coowner without the consent of the other co-owners is not null and void. However, only the rights of the
co-owner-seller are transferred, thereby making the buyer a co-owner of the property.
The proper action in cases like this is not for the nullification of the sale or for the recovery of
possession of the thing owned in common from the third person who substituted the co-owner or coowners who alienated their shares, but the DIVISION of the common property of the co-owners who
possessed and administered it.
12

The legality of Laurencias alienation of portions of the estate of the Alejandrino

spouses was settled in Civil Case No. CEB-7038. The decision in that case had
become final and executory with Laurencias withdrawal of her appeal. When

private respondent filed a motion for the segregation of the portions of the property
that were adjudged in his favor, private respondent was in effect calling for
thepartition of the property. However, under the law, partition of the estate of a
decedent may only be effected by (1) the heirs themselves extrajudicially, (2) by the
court in an ordinary action for partition, or in the course of administration
proceedings, (3) by the testator himself, and (4) by the third person designated by
the testator.
13

The trial court may not, therefore, order partition of an estate in an action for
quieting of title. As there is no pending administration proceedings, the property of
the Alejandrino spouses can only be partitioned by the heirs themselves in an
extrajudicial settlement of estate. However, evidence on the extrajudicial settlement
of estate was offered before the trial court and it became the basis for the order for
segregation of the property sold to private respondent. Petitioner Mauricia does not
deny the fact of the execution of the deed of extrajudicial settlement of the estate.
She only questions its validity on account of the absence of notarization of the
document and the non-publication thereof.
On extrajudicial settlement of estate, Section 1 of Rule 74 of the Rules of Court
provides:
If the decedent left no will and no debts and the heirs are all of age, or the minors are
represented by their judicial or legal representatives duly authorized for the purpose, the
parties may, without securing letters of administration, divide the estate among themselves
as they see fit by means of a public instrument filed in the office of the register of deeds, and
should they disagree, they may do so in an ordinary action for partition. x x x.
The fact of the extrajudicial settlement or administration shall be published in a
newspaper of general circulation in the manner provided in the next succeeding section; but
no extrajudicial settlement shall be binding upon any person who has not participated
therein or had no notice thereof.

Notarization of the deed of extrajudicial settlement has the effect of making it a

public document that can bind third parties. However, this formal requirement
appears to be superseded by the substantive provision of the Civil Code that states:
14

ART. 1082. Every act which is intended to put an end to in-division among co-heirs and
legatees or devisees is deemed to be a partition, although it should purport to be a sale, an
exchange, a compromise, or any other transaction.

By this provision, it appears that when a co-owner sells his inchoate right in the coownership, he expresses his intention to put an end to indivision among (his) coheirs. Partition among co-owners may thus be evidenced by the overt act of a coowner of renouncing his right over the property regardless of the form it takes. In
effect, Laurencia expressed her intention to terminate the co-ownership by selling
her share to private respondent.
Moreover, the execution of the deed of extrajudicial settlement of the estate
reflected the intention of both Laurencia and petitioner Mauricia to physically
divide the property. Both of them had acquired the shares of their brothers and
therefore it was only the two of them that needed to settle the estate. The fact that
the document was not notarized is no hindrance to its effectivity as regards the two
of them. The partition of inherited property need not be embodied in a public
document. In this regard, Tolentino subscribes to that opinion when he states as
follows:
x x x. We believe, however, that the public instrument is not essential to the validity of the
partition. This is not one of those contracts in which form is of the essence. The public
instrument is necessary only for the registration of the contract, but not for its validity. The
validity of an oral contract among the heirs, terminating the co-ownership, has been
recognized by the Supreme Court in a decision x x x (where) that tribunal said: An
agreement among the heirs that a certain lot should be sold and its proceeds paid to one of
them is a valid oral contract, and the same has the force of law between the parties from
and after the original assent thereto, and no one of them may withdraw or oppose its
execution without the consent of all.
In a still later case, the Supreme Court held that partition among heirs or renunciation
of an inheritance by some of them is not exactly a conveyance for the reason that it does not
involve transfer of property from one to the other, but rather a confirmation or ratification of
title or right to property by the heir renouncing in favor of another heir accepting and
receiving the inheritance.
Hence, the court concluded, it is competent for the heirs of an estate to enter into an oral
agreement for distribution of the estate among themselves.
15

The deed of extrajudicial settlement executed by Mauricia and Laurencia evidence

their intention to partition the property. It delineates what portion of the property
belongs to each other. That it was not notarized is immaterial in view of Mauricias
admission that she did execute the deed of extrajudicial settlement. Neither is the

fact that the trial court only mentioned the existence of such document in its
decision in Civil Case No. CEB-7028. That document was formally offered in
evidence and the court is deemed to have duly considered it in deciding the case.
The court has in its favor the presumption of regularity of the performance of its
task that has not been rebutted by petitioner Mauricia. Neither may the fact that
the other heirs of the Alejandrino spouses, named Marcelino, Gregorio, Ciriaco and
Abundio did not participate in the extrajudicial settlement of estate affect its
validity. In her amended complaint in Civil Case No. CEB-11673, petitioner
Mauricia herself admitted having acquired by purchase the rights over the shares of
her brothers.
16

On the part of Laurencia, the court found that she had transmitted her rights
over portions she had acquired from her brothers to private respondent Nique. The
sale was made after the execution of the deed of extrajudicial settlement of the
estate that private respondent himself witnessed. The extrajudicial settlement of
estate having constituted a partition of the property, Laurencia validly transferred
ownership over the specific front portion of the property with an area of 146 square
meters.
The trial court, therefore, did not abuse its discretion in issuing the order for the segregation of
the property. In so doing, it was merely reiterating the partition of the property by petitioner
Mauricia and her sister Laurencia that was embodied in the deed of extrajudicial settlement of
estate. The order may likewise be deemed as a clarification of its decision that had become final and
executory. Such clarification was needed lest proper execution of the decision be rendered futile.
The Court finds no merit in the issue of forum shopping raised by private respondent. Forum
shopping exists where the elements of litis pendentia are present or where a final judgment in one
case will amount to res judicata in the other. Because the judgment in Civil Case No. CEB-7028is
17

already final and executory, the existence of res judicatais determinative of whether or not petitioner
is guilty of forum shopping. For the principle of res judicata to apply, the following must be present:
(1) a decision on the merits; (2) by a court of competent jurisdiction; (3) the decision is final; and (4)
the two actions involve identical parties, subject matter and causes of action. The fourth element is
18

not present in this case. The parties are not identical because petitioner was not impleaded in Civil
Case No. CEB-7028. While the subject matter may be the same property of the Alejandrino spouses,
the causes of action are different. Civil Case No. CEB-7028 is an action for quieting of title and
damages while Civil Case No. CEB-11673 is for redemption and recovery of properties.

It appears moreover, that private respondents argument on forum shopping is anchored on the
fact that counsel for both plaintiffs in those two cases is one and the same, thereby implying that the
same counsel merely wanted to prevail in the second case after having failed to do so in the first. The
records show, however, that Laurencia executed an affidavit consenting to the appearance of her
19

counsel in any case that petitioner Mauricia might file against private respondent. She affirmed in
that affidavit that she could be included even as a defendant in any case that petitioner Mauricia
would file because she fully agree(d) with whatever cause of action Mauricia would have against
private respondent. Such a statement can hardly constitute a proper basis for a finding of forum
shopping, much less evidence of misconduct on the part of counsel. As noted earlier, the two cases
have different causes of action and the two plaintiffs who would have conflicting claims under the
facts of the case actually presented a united stand against private respondent. If there is any charge
that could be leveled against counsel, it is his lack of thoroughness in pursuing the action for quieting
of title. As counsel for plaintiff therein, he could have impleaded petitioner Mauricia knowing fully
well her interest in the property involved in order to avoid multiplicity of suits. However, such an
omission is not a sufficient ground for administrative sanction.
WHEREFORE, the instant petition for review on certiorari is hereby DENIED for lack of merit.
Costs against petitioner.
SO ORDERED.
Narvasa (C.J., Chairman), Kapunan and Purisima, JJ., concur.
Petition denied.
Notes.A partys claim that his property is different from that of another is antithetical to his
filing of a complaint for quieting of title as there would not be any basis for claiming that the latter
cast a cloud of doubt to his title over his parcel of land. (Heirs of Juan Oclarit vs. Court of
Appeals, 233 SCRA 239 [1994])
The pendency of an action for quieting of title before the Regional Trial Court does not divest the
city or municipal trial court of its jurisdiction to proceed with the ejectment case over the same
property. (Oblea vs. Court of Appeals,244 SCRA 101 [1995]) When there has been a partial partition,
as where the transferees of an undivided portion of the land allowed a coowner of the property to
occupy a definite portion thereof and had not disturbed the same, for a period too long to be ignored,
the possessor is in a better condition or right. (Vda. de Cabrera vs. Court of Appeals, 267 SCRA
339[1997])

G.R. No. 112260. June 30, 1997.

JOVITA YAP ANCOG, and GREGORIO YAP, JR., petitioners, vs. COURT OF
APPEALS, ROSARIO DIEZ, and CARIDAD YAP, respondents.
Civil Law; Property; Co-ownership; Every act which is intended to put an end to
indivision among co-heirs is deemed to be a partition even though it should purport to be a
sale, an exchange, or any other transaction.Thus, what the record of this case reveals is
the intention of Jovita Ancog and Caridad Yap to cede their interest in the land to their
mother Rosario Diez. It is immaterial that they had been initially motivated by a desire to
acquire a loan. Under Art. 1082 of the Civil Code, every act which is intended to put an end
to indivision among co-heirs is deemed to be a partition even though it should purport to be
a sale, an exchange, or any other transaction.
Same; Same; Same; Laches; Court of Appeals erred in ruling that the claim of petitioner
Gregorio Yap, Jr. was barred by laches.We hold, however, that the Court of Appeals erred
in ruling that the claim of petitioner Gregorio Yap, Jr. was barred by laches. In accordance
with Rule 74, 1 of the Rules of Court, as he did not take part in the partition, he is not
bound by the settlement. It is uncontroverted that, at the time the extrajudicial settlement
was executed, Gregorio Yap, Jr. was a minor. For this reason, he was not included or even
informed of the partition.
Same; Same; Same; Trust; As a general rule, a resulting trust arises where such may be
reasonably presumed to be the intention of the parties, as determined from the facts and
circumstances existing at the time of the transaction out of which it is sought to be
established.In the case of OLaco v. Co Cho Chit, Art. 1451 was held as creating a
resulting trust, which is founded on the presumed intention of the parties. As a general
rule, it arises where such may be reasonably presumed to be the intention of the parties, as
determined from the facts and circumstances existing at the time of the transaction out of
which it is sought to be established. In this case, the records disclose that the intention of
the parties to the extrajudicial settlement was to establish a trust in favor of petitioner Yap,
Jr. to the extent of his share. Rosario Diez testified that she did not claim the entire
property, while Atty. de la Serna added that the partition only involved the shares of the
three participants.
Same; Same; Same; Same; Prescription; For prescription to run in favor of the trustee,
the trust must be repudiated by unequivocal acts made known to the cestui que trust and
proved by clear and conclusive evidence.A cestui que trust may make a claim under a
resulting trust within 10 years from the time the trust is repudiated. Although the
registration of the land in private respondent Diezs name operated as a constructive notice
of her claim of ownership, it cannot be taken as an act of repudiation adverse to petitioner
Gregorio Yap, Jr.s claim, whose share in the property was precisely not included by the

parties in the partition. Indeed, it has not been shown whether he had been informed of her
exclusive claim over the entire property before 1985 when he was notified by petitioner
Jovita Yap Ancog of their mothers plan to sell the property.
Same; Same; Same; Same; Same; A cestui que trust may make a claim under a
resulting trust within 10 years from the time the trust is repudiated.This Court has ruled
that for prescription to run in favor of the trustee, the trust must be repudiated by
unequivocal acts made known to the cestui que trust and proved by clear and conclusive
evidence. Furthermore, the rule that the prescriptive period should be counted from the
date of issuance of the Torrens certificate of title applies only to the remedy of reconveyance
under the Property Registration Decree. Since the action brought by petitioner Yap to claim
his share was brought shortly after he was informed by Jovita Ancog of their mothers effort
to sell the property, Gregorio Yap, Jr.s claim cannot be considered barred either by
prescription or by laches.

PETITION for review on certiorari of a decision of the Court of Appeals.

The facts are stated in the opinion of the Court.
Artemio P. Cabatos for petitioners.
Vicente de la Serna, Jr. for private respondents.
MENDOZA, J.:
This is a petition for review of the decision of the Court of Appeals in CA-G.R. No.
CV-19650, affirming the dismissal by the Regional Trial Court of Bohol of an action
for partition of a parcel of land which petitioners had filed.
1

The land, with improvements thereon, was formerly the conjugal property of the
spouses Gregorio Yap and Rosario Diez. In 1946, Gregorio Yap died, leaving his
wife, private respondent Rosario Diez, and children, petitioners Jovita Yap Ancog
and Gregorio Yap, Jr., and private respondent Caridad Yap as his heirs.
In 1954 and again 1958, Rosario Diez obtained loans from the Bank of Calape,
secured by a mortgage on the disputed land, which was annotated on its Original
Certificate of Title No. 622. When Rosario Diez applied again for a loan to the bank,
offering the land in question as security, the banks lawyer, Atty. Narciso de la
Serna, suggested that she submit an extrajudicial settlement covering the disputed

land as a means of facilitating the approval of her application. The suggestion was
accepted and on April 4, 1961, Atty. de la Serna prepared an extrajudicial
settlement, which the heirs, with the exception of petitioner Gregorio Yap, Jr., then
only 15 years old, signed. The document was notarized by Atty. de la Serna on April
12, 1961. As a result, OCT No. 622 was cancelled and Transfer Certificate of Title
No. 3447 (T-2411) was issued on April 13, 1961. On April 14, 1961, upon the
execution of a real estate mortgage on the land, the loan was approved by the bank.
Rosario Diez exercised rights of ownership over the land. In 1985, she brought an
ejectment suit against petitioner Jovita Yap Ancogs husband and son to evict them
from the ground floor of the house built on the land for failure to pay rent.
Shortly thereafter, petitioner Jovita Ancog learned that private respondent Rosario
Diez had offered the land for sale.
Petitioner Ancog immediately informed her younger brother, petitioner Gregorio
Yap, Jr., who was living in Davao, of their mothers plan to sell the land. On June 6,
1985, they filed this action for partition in the Regional Trial Court of Bohol where
it was docketed as Civil Case No. 3094. As private respondent Caridad Yap was
unwilling to join in the action against their mother, Caridad was impleaded as a
defendant.
Petitioners alleged that the extrajudicial instrument was simulated and therefore
void. They claimed that in signing the instrument they did not really intend to
convey their interests in the property to their mother, but only to enable her to
obtain a loan on the security of the land to cover expenses for Caridads school fees
and for household repairs.
At the pre-trial conference, the parties stipulated:
1. 1.That the parcel of land in question originally belonged to the conjugal partnership
of spouses Gregorio Yap and Rosario Diez Yap;
2. 2.That Gregorio Yap, Jr. is the legitimate child of spouses Gregorio Yap and Rosario
Diez Yap;
3. 3.That Gregorio Yap is not a party in the execution of the Extra Judicial Settlement
of the Estate dated April 4, 1961;

4. 4.That all the encumbrances found in TCT No. (3447) T-2411 which is now marked
as Exh. C for the plaintiffs and Exh. 2 for the defendants as Entry No. 6719, 6720,
11561 and 11562 are admitted by the plaintiffs subject to the condition that the
Extra Judicial Settlement of Estate dated April 4, 1961, was made by the parties
that the same was only for the purpose of securing a loan with the Philippine
National Bank.
3

The trial court rendered judgment dismissing petitioners action. It dismissed

petitioners claim that the extrajudicial settlement was simulated and held it was
voluntarily signed by the parties. Observing that even without the need of having
title in her name Rosario Diez was able to obtain a loan using the land in question
as collateral, the court held that the extrajudicial settlement could not have been
simulated for the purpose of enabling her to obtain another loan. Petitioners failed
to overcome the presumptive validity of the extrajudicial settlement as a public
instrument.
The court instead found that petitioner Ancog had waived her right to the land,
as shown by the fact that on February 28, 1975, petitioners husband, Ildefonso
Ancog, leased the property from private respondent Diez. Furthermore, when the
spouses Ancog applied for a loan to the Development Bank of the Philippines using
the land in question as collateral, they accepted an appointment from Rosario Diez
as the latters attorney-in-fact.
4

The court also found that the action for partition had already prescribed. The
registration of the land under private respondent Rosario Diezs name amounted to
a repudiation of the co-ownership. Therefore, petitioners had ten (10) years from
April 13, 1961 within which to bring an action to recover their share in the property.
While it is true that petitioner Gregorio Yap, Jr. was a minor at the time the
extrajudicial settlement was executed, his claim, according to the court, was barred
by laches.
On appeal, the Court of Appeals upheld the validity of the extrajudicial
settlement and sustained the trial courts dismissal of the case. The appellate court
emphasized that the extrajudicial settlement could not have been simulated in order
to obtain a loan, as the new loan was merely in addition to a previous one which
private respondent Diez had been able to obtain even without an extrajudicial
settlement. Neither did petitioners adduce evidence to prove that an extrajudicial
settlement was indeed required in order to obtain the additional loan. The appellate

court held that considering petitioner Jovita Yap Ancogs educational attainment
(Master of Arts and Bachelor of Laws), it was improbable that she would sign the
settlement if she did not mean it to be such. Hence, this petition. Petitioners
contend that the Court of Appeals erred:
1. I.IN SUSTAINING THE TRIAL COURT RULING THAT THE CONTESTED
EXTRAJUDICIAL SETTLEMENT (EXHIBIT B) IS NOT A SIMULATED ONE;
2. II.IN BLOATING THE EDUCATIONAL BACKGROUND OF PETITIONER JOVITA
YAP ANCOG AND USING THE SAME AS ARGUMENT AGAINST HER CLAIM
THAT SAID EXHIBIT B WAS INDEED A SIMULATED DOCUMENT;
3. III.IN SUSTAINING THE TRIAL COURTS RULING THAT PETITIONERS
ACTION FOR PARTITION HAS PRESCRIBED; IV. IN RULING THAT
PETITIONER GREGORIO YAP, JR., ONE OF THE CO-OWNERS OF THE
LITIGATED PROPERTY, HAD LOST HIS RIGHTS TO THE PROPERTY
THROUGH PRESCRIPTION OR LACHES.

We hold that both the trial court and the Court of Appeals correctly acted in
upholding the extrajudicial settlement but erred in ruling that petitioner Gregorio
Yap, Jr. was barred by laches from recovering his share in the property in question.
To begin with, it is settled that the findings of facts of the Court of Appeals are
conclusive upon the parties and are not reviewable by this Court when they are an
affirmation of the findings of the trial court. In this case, the trial court and the
Court of Appeals found no evidence to show that the extrajudicial settlement was
required to enable private respondent Rosario Diez to obtain a loan from the Bank
of Calape. Petitioners merely claimed that the extrajudicial settlement was
demanded by the bank.
6

To the contrary, that the heirs (Jovita Yap Ancog and Caridad Yap) meant the
extrajudicial settlement to be fully effecttive is shown by the fact that Rosario Diez
performed acts of dominion over the entire land, beginning with its registration,
without any objection from them. Instead, petitioner Jovita Ancog agreed to lease
the land from her mother, private respondent Rosario Diez, and accepted from her a
special power of attorney to use the land in question as collateral for a loan she was
applying from the DBP. Indeed, it was private respondent Diez who paid the loan of
the Ancogs in order to secure the release of the property from mortgage.

Petitioner Jovita Yap Ancog contends that she could not have waived her share in
the land because she is landless. For that matter, private respondent Caridad Yap is
also landless, but she signed the agreement. She testified that she did so out of filial
devotion to her mother.
7

Thus, what the record of this case reveals is the intention of Jovita Ancog and
Caridad Yap to cede their interest in the land to their mother Rosario Diez. It is
immaterial that they had been initially motivated by a desire to acquire a loan.
Under Art. 1082 of the Civil Code, every act which is intended to put an end to
indivision among co-heirs is deemed to be a partition even though it should purport
to be a sale, an exchange, or any other transaction.
8

We hold, however, that the Court of Appeals erred in ruling that the claim of
petitioner Gregorio Yap, Jr. was barred by laches. In accordance with Rule 74, 1 of
the Rules of Court, as he did not take part in the partition, he is not bound by the
settlement. It is uncontroverted that, at the time the extrajudicial settlement was
executed, Gregorio Yap, Jr. was a minor. For this reason, he was not included or
even informed of the partition.
9

10

Instead, the registration of the land in Rosario Diezs name created an implied
trust in his favor by analogy to Art. 1451 of the Civil Code, which provides:
When land passes by succession to any person and he causes the legal title to be put in the
name of another, a trust is established by implication of law for the benefit of the true
owner.
In the case of OLaco v. Co Cho Chit, Art. 1451 was held as creating a resulting trust, which is founded on the
11

presumed intention of the parties. As a general rule, it arises where such may be reasonably presumed to be the
intention of the parties, as determined from the facts and circumstances existing at the time of the transaction
out of which it is sought to be es-tablished. In this case, the records disclose that the intention of the parties to
12

the extrajudicial settlement was to establish a trust in favor of petitioner Yap, Jr. to the extent of his share.
Rosario Diez testified that she did not claim the entire prop-erty, while Atty. de la Serna added that the
13

partition only involved the shares of the three participants.

14

A cestui que trust may make a claim under a resulting trust within 10 years from the time the trust is
repudiated. Although the registration of the land in private respondent Diezs name operated as a constructive
15

notice of her claim of ownership, it cannot be taken as an act of repudiation adverse to petitioner Gregorio Yap,
Jr.s claim, whose share in the property was precisely not included by the parties in the partition. Indeed, it has
not been shown whether he had been informed of her exclusive claim over the entire property before 1985 when
he was notified by petitioner Jovita Yap Ancog of their mothers plan to sell the property.

16

This Court has ruled that for prescription to run in favor of the trustee, the trust must be repudiated by
unequivocal acts made known to the cestui que trust and proved by clear and conclusive evidence. Furthermore,
the rule that the prescriptive period should be counted from the date of issuance of the Torrens certificate of
title applies only to the remedy of reconveyance under the Property Registration Decree. Since the action
17

brought by petitioner Yap to claim his share was brought shortly after he was informed by Jovita Ancog of their
mothers effort to sell the property, Gregorio Yap, Jr.s claim cannot be considered barred either by prescription
or by laches.
WHEREFORE, the decision of the Court of Appeals is AFFIRMED with the MODIFICATION that this case
is REMANDED to the Regional Trial Court for the determination of the claim of petitioner Gregorio Yap, Jr.
SO ORDERED.
Regalado (Chairman) and Romero, JJ., concur.
Puno and Torres, Jr., JJ., No part: See footnote 1.
Judgment affirmed with modification.
Note.If property is acquired through mistake or fraud, the person obtaining it is considered a trustee of an
impliedtrust for the benefit of the person from whom the property comes. (Noel vs. Court of Appeals, 240 SCRA
78 [1995])

o0o
[No. L-3404. April 2, 1951]
ANGELA I. TUASON, plaintiff and appellant, vs.ANTONIO TUASON, JR., and
GREGORIO ARANETA, INC., defendants and appellees.
COMMUNITY PROPERTY; PARTITION; RESCISSION.A contract among land
co-owners wherein they agreed to fill their property, construct roads therein and then
subdivide it into small lots for sale, the proceeds to be later divided among them, and to
this end one of them was to finance the whole development and subdivision, to prepare a
schedule of prices and conditions of sale subject to the approval of the other two coowners, to sell the subdivided lots and execute the corresponding contracts with buyers,
and to receive 50 per cent of the gross selling price of the lots and the rents that may be
collected f rom the property while in the process of sale, the remaining 50 per cent to be
divided in equal portions among the three co-owners,does not violate article 400 of the
Civil Code. Far from violating the prohibition against a co-owner being obliged to remain
a party to the community, the contract precisely has for its purpose and object the

dissolution of the co-ownership and of the community by selling the parcel held in
common and dividing the proceeds of the sale among the co-owners. The obligation
imposed in the contract to preserve the co-ownership until all the lots shall have been
sold is a mere incident to the main object of dissolving the co-ownership.

APPEAL from a judgment of the Court of First Instance of Manila. Pea, J.

The facts are stated in the opinion of the Court.
Alcuaz & Eiguren for appellant.
Araneta & Araneta for appellees.
MONTEMAYOR, J.:
In 1941 the sisters Angela L Tuason and Nieves Tuason de Barreto and their
brother Antonio Tuason Jr., held a parcel of land with an area of 64,928.6 sq. m.
covered by Certificate of Title No. 60911 in Sampaloc, Manila, in common, each
owning an undivided 1/3 portion. Nieves wanted and asked for a partition of the
common property, but failing in this, she offered to sell her 1/3 portion. It seems
that the objection to dividing the property was that it would lose in value by the
proposed partition. The share of Nieves was offered for sale to her sister and her
brother but both declined to buy it. The offer was later made to their mother but the
old lady also declined to buy, saying that if the property later increased in value, she
might be suspected of having taken advantage of her daughter. Finally, the share of
Nieves was sold to Gregorio Araneta Inc., a domestic corporation, and a new
Certificate of Title No. 61721 was issued in lieu of the old title No. 60911 covering
the same property. The three co-owners agreed to have the whole parcel subdivided
into small lots and then sold, the proceeds of the sale to be later divided among
them. This agreement is embodied in a document (Exh. 6) entitled "Memorandum of
Agreement" consisting of ten pages, dated June 30, 1941.
Before, during and after the execution of this contract (Exh. 6), Atty. J. Antonio
Araneta was acting as the attorney-in-fact and lawyer of the two co-owners, Angela
I. Tuason and her brother Antonio Tuason Jr. At the same time he was a member of
the Board of Directors of the third co-owner, Araneta, Inc.

The pertinent terms of the contract (Exh. 6) may be briefly stated as follows: The
three co-owners agreed to improve the property by filling it and constructing roads
and curbs on the same and then subdivide it into small lots for sale. Araneta Inc.
was to finance the whole development and subdivision; it was to prepare a schedule
of prices and conditions of sale, subject to the approval of the two other co-owners; it
was invested with authority to sell the lots into which the property was to be
subdivided, and execute the corresponding contracts and deeds of sale; it was also to
pay the real estate taxes due on the property or of any portion thereof that remained
unsold, the expenses of surveying, improvements, etc., all advertising expenses,
salaries of personnel, commissions, office and legal expenses, including expenses in
instituting all actions to eject all tenants or occupants on the property; and it
undertook the duty to furnish each of the two co-owners, Angela and Antonio
Tuason, copies of the subdivision plans and the monthly sales and rents and
collections made thereon. In return f or all this undertaking and obligation assumed
by Araneta Inc., particularly the financial burden, it was to receive 50 per cent of
the gross selling price of the lots, and any rents that may be collected from the
property, while in the process of sale, the remaining 50 per cent to be divided in
equal portions among the three co-owners so that each will receive 16.33 per cent of
the gross receipts.
Because of the importance of paragraphs 9, 11 and 15 of the contract (Exh. 6), for
purposes of reference we are reproducing them below:
"(9) This contract shall remain in full force and effect during- all the time that it may be
necessary f or the PARTY OF THE SECOND PART to fully sell the said property in small
and subdivided lots and to fully collect the purchase prices due thereon; it being understood
and agreed that said lots may be rented while there are no purchasers thereof; "(11) The
PARTY OF THE SECOND PART (meaning Araneta Inc.) is hereby given full power and
authority to sign for and in behalf of all the said co-owners of said property all contracts of
sale and deeds of sale of the lots Into which this property might be sub-divided; the powers
herein vested to the PARTY OF THE SECOND PART may not be revoked until the
purposes of this contract have been fulfilled and carried out, and the PARTY OF THE
SECOND PART may, under its own responsibility and risk, delegate any of its powers
under this contract to any of its officers, employees or to third persons;
"(15) No co-owner of the property subject-matter of this contract shall sell, alienate or
dispose of his ownership, interest or participation therein without first giving preference to
the other co-owners to purchase and acquire the same under the same terms and conditions

as those offered by any other prospective purchaser. Should none of the co-owners of the
property subject-matter of this contract exercise the said preference to acquire or purchase
the same, then such sale to a third party shall be made subject to all the conditions, terms,
and dispositions of this contract; provided, the PARTIES OF THE FIRST PART (meaning
Angela and Antonio) shall be bound by this contract as long as the PARTY OF THE
SECOND PART, namely, the GREGORIO ARANETA, INC. is controlled by the members of
the Araneta family, who are stockholders of the said corporation at the time of the signing
of this contract and/or their lawful heirs;"

On September 16, 1944, Angela I. Tuason revoked the powers conferred on her
attorney-in-fact and lawyer, J. Antonio Araneta. Then in a letter dated October 19,
1946, Angela notified Araneta, Inc. that because of alleged breach of the terms of
the "Memorandum of Agreement" (Exh. 6) and abuse of powers granted to it in the
document, she had decided to rescind said contract and she asked that the property
held in common be partitioned. Later, on November 20, 1946, Angela filed a
complaint in the Court of First Instance of Manila asking the court to order the
partition of the property in question and that she be given1/3 of the same including
rents collected during the time that Araneta Inc., administered said property.
The suit was directed principally against Araneta, Inc. Plaintiff's brother,
Antonio Tuason Jr., one of the co-owners evidently did not agree to the suit and its
purpose, for he joined Araneta, Inc. as a co-defendant. After hearing and after
considering the extensive evidence introduced, oral and documentary, the trial court
presided over by Judge Emilio Pea in a long and considered decision dismissed the
complaint without pronouncement as to costs. The plaintiff appealed f rom that
decision, and because the property is valued at more than P50,000, the appeal came
directly to this Court.
Some of the reasons advanced by appellant to have the memorandum contract
(Exh. 6) declared null and void or rescinded are that she had been tricked into
signing it; that she was given to understand by Antonio Araneta acting as her
attorney-in-fact and legal adviser that said contract would be similar to another
contract of subdivision of a parcel into lots and the sale thereof entered into by
Gregorio Araneta Inc., and the heirs of D. Tuason, Exhibit "L", but it turned out
that the two contracts widely differed from each other, the terms of contract Exh.
"L" being relatively much more favorable to the owners therein and less favorable to
Araneta Inc.; that Atty. Antonio Araneta was more or less disqualified to act as her
legal adviser as he did because he was one of the officials of Araneta Inc., and

finally, that the defendant company has violated the terms of the contract (Exh. 6)
by not previously showing her the plans of the subdivision, the schedule of prices
and conditions of the sale, in not introducing the necessary improvements into the
land and in not delivering to her her share of the proceeds of the rents and sales.
We have examined Exh. "L" and compared the same with the contract (Exh. 6)
and we agree with the trial court that in the main the terms of both contracts are
similar and practically the same. Moreover, as correctly found by the trial court, the
copies of both contracts were shown to the plaintiff Angela and her husband, a
broker, and both had every opportunity to go over and compare them and decide on
the advisability of or disadvantage in entering into the contract (Exh. 6); that
although Atty. Antonio Araneta was an official of the Araneta Inc.; being a member
of the Board of Directors of the Company at the time that Exhibit "6" was executed,
he was not the party with which Angela contracted, and that he committed no
breach of trust. According to the evidence Araneta, Inc. showed to her the plans of
the subdivision and all the pertinent papers, and sent to her checks covering her
share of the proceeds of the sale but that she ref used to receive the same; and that
as a matter of fact, at the time of the trial, Araneta Inc., had spent about P1 17,000
in improvement and had received as proceeds on the sale of the lots the respectable
sum of P1,265,538.48. We quote with approval that portion of the decision appealed
from on these points:
"The evidence in this case points to the fact that the actuations of J. Antonio Araneta in
connection with the execution of exhibit 6 by the parties, are above board. He committed
nothing that is violative of the fiduciary relationship existing between him and the plaintiff.
The act of J. Antonio Araneta in giving the plaintiff a copy of exhibit 6 before the same was
executed, constitutes a full disclosure of the facts, for said copy contains all that appears
now in exhibit 6.
"Plaintiff charges the defendant Gregorio Araneta, Inc. with infringing the terms of the
contract in that the defendant corporation has failed (1) to make the necessary
improvements on the property as required by paragraphs 1 and 3 of the contract; (2) to
submit to the plaintiff from time to time schedule of prices and conditions under which the
subdivided lots are to be sold; and to furnish the plaintiff a copy of the subdivision plans, a
copy of the monthly statement of the sales and rents of the subdivided lots, and a statement
of the monthly gross collections from the sale of the property.

"The Court finds from the evidence that the defendant Gregorio Araneta, Incorporated
has substantially complied with the obligation imposed by the contract exhibit 6 in its
paragraph 1, and that for improvements alone, it has disbursed the amount of P117,167.09.
It has likewise paid taxes, commissions and other expenses incidental to its obligations as
defined in the agreement.
"With respect to the charge that Gregorio Araneta, Incorporated has failed to submit to
plaintiff a copy of the subdivision plans, list of prices and the conditions governing the sale
of subdivided lots, and monthly statement of collections f rom the sale of the lots, the Court
is of the opinion that it has no basis. The evidence shows that the defendant corporation
submitted to the plaintiff periodically all the data relative to prices and conditions of the
sale of the subdivided lots, together with the amount corresponding to her. But without any
justifiable reason, she refused to accept them. With the indifferent attitude adopted by the
plaintiff, it was thought useless for Gregorio Araneta, Incorporated to continue sending her
statement of accounts, checks and other things. She had shown on various occasions that
she did not want to have any further dealings with the said corporation. So, if the defendant
corporation proceeded with the sale of the subdivided lots without the approval of the
plaintiff, it was because it was under the correct impression that under the contract exhibit
6 the decision of the majority co-owners is binding upon all the three. "The Court feels that
rescission of the contract exhibit 6 is not in order. Even granting that the defendant
corporation committed minor violations of the terms of the agreement, the general rule is
that 'rescission will not be permitted for a slight or casual breach of the contract, but only
for such breaches as are so substantial and fundamental as to defeat the object of the
parties in making the agreement' (Song Fo & Co. vs. Hawaiian-Philippine Co., 47 Phil.
821)."

As regards improvements, the evidence shows that during the Japanese occupation
from 1942 and up to 1946, the Araneta Inc. although willing to fill the land, was
unable to obtain the equipment and gasoline necessary for filling the low places
within the parcel. As to sales, the evidence shows that Araneta Inc. purposely
stopped selling the lots during the Japanese occupantion, knowing that the
purchase price would be paid in Japanese military notes; and Atty. Araneta claims
that for this, plaintiff should be thankfull because otherwise she would have
received these notes as her share of the receipts, which currency later became
valueless.
But the main contention of the appellant is that the contract (Exh. 6) should be
declared null and void because its terms, particularly paragraphs 9, 11 and 15

which we have reproduced, violate the provisions of Art. 400 of the Civil Code, which
for the purposes of reference we quote below:
"ART. 400. No co-owner shall be obliged to remain a party to the community. Each may, at
any time, demand the partition of the thing held in common.
"Nevertheless, an agreement to keep the thing undivided for a specified length of time,
not exceeding ten years, shall be valid. This period may be a new agreement."

We agree with the trial court that the provisions of Art. 400 of the Civil Code are
not applicable. The contract (Exh.. 6) far from violating the legal provision that
forbids a co-owner being obliged to remain a party to the community, precisely has
for its purpose and object the dissolution of the co-ownership and of the community
by selling the parcel held in common and dividing the proceeds of the sale among
the co-owners. The obligation imposed in the contract to preserve the co-ownership
until all the lots shall -have been sold, is a mere incident to the main object of
dissolving the co-ownership. By virtue of the document Exh. 6, the parties thereto
practically and substantially entered into a contract of partnership as the best and
most expedient means of eventually dissolving the co-ownership, the life of said
partnership to end when the object of its creation shall have been attained.
This aspect of the contract is very similar to and was perhaps based on the other
agreement or contract (Exh. "L") referred to by appellant where the parties thereto
in express terms entered into a partnership, although this object is not expressed in
so many words in Exh. 6. We repeat that we see no violation of Art. 400 of the Civil
Code in -the parties entering into the contract (Exh. 6) for the very reason that Art.
400 is not applicable.
Looking at the case from a practical standpoint as did the trial court, we find no
valid ground for the partition insisted upon the appellant. We find from the evidence
as was done by the trial court that of the 64,928.6 sq. m. which is the total area of
the parcel held in common, only 1,600 sq. m. or 2.5 per cent of the entire area
remained unsold at the time of the trial in the year 1947, while the great bulk of
97.5 per cent had already been sold. As well observed by the court below, the
partnership is in the process of being dissolved and is about to be dissolved, and
even assuming that Art. 400 of the Civil Code were applicable, under which the
parties by agreement may agree to keep the thing undivided for a period not

exceeding 10 years, there should be no fear that the remaining 1,600 sq. m. could
not be disposed of within the four years left of the ten-year period fixed by Art. 400.
We deem it unnecessary to discuss and pass upon the other points raised in the
appeal and which counsel for appellant has extensively and ably discussed, citing
numerous authorities. As we have already said, we have viewed the case from a
practical standpoint, brushing aside technicalities and disregarding any minor
violations of the contract, and in deciding the case as we do, we are fully convinced
that the trial court and this Tribunal are carrying out in a practical and expeditious
way the intentions and the agreement of the parties contained in the contract (Exh.
6), namely, to dissolve the community and co-ownership, in a manner most
profitable to the said parties.
In view of the foregoing, the decision appealed from is hereby affirmed. There is
no pronouncement as to costs. So ordered.
Pars, C. J., Pablo, Bengzon, Padilla, Tuason, Reyes,Jugo and Bautista Angelo,
JJ., concur.
Pars, C. J.:
I certify that Mr. Justice Feria voted to affirm.
Judgment affirmed.
______________

G.R. No. 108580. December 29, 1998.

CLARITA P. HERMOSO and VICTORIA P. HERMOSO, petitioners, vs. COURT OF

APPEALS, SPOUSES CEFERINO C. PALAGANAS, AZUCENA R. PALAGANAS
and DR. AMANDA C. PALAGANAS, respondents.
Co-ownership; Partition; Succession; An agreement among certain heirs as to shares
following one another in a specific order cannot be binding on the co-owner who owns 2/3 of
the entire parcel but who was not a signatory or party to the document.We agree with the
trial court that this Agreement was merely a scheme as to how the land would be
subdivided in the future among the heirs. The owner of two-thirds (2/3) of the property,
Consolacion Hermoso, was not a party to the agreement. As a majority owner of the
undivided property, she could have demanded and insisted on getting the particular
portions which the respondent court ruled had already been segregated in favor of the two
vendors-brothers. The agreement among the heirs of Emilio Hermoso as to shares following
one another in a specific order cannot be binding on the co-owner who owns 2/3 of the entire
parcel but who was not a signatory or party to the document.
Same; Same; Same; The statement of certain heirs that the 2/3 portion of the co-owner
who did not participate in the execution of a document shall be adjacent to that of a certain
co-owner followed by the shares of some other co-owners is a statement of a desire on how the
land should be subdivided, which is not the kind of division or partition of property which
clearly terminates co-ownership.The reference to a stonewall separating the shares of
Consolacion Hermoso Cruz from the share of Clarita Carin and the use thereof as reference
point should not be taken to mean that thereby a partition was effected among the heirs.
The statement of the Heirs of Emilio Hermoso that the 2/3 portion of the co-owner in
relation to the heirs of Emilio shall be adjacent to that of Clarita Carin followed by the
shares of Rogelio, Danilo, Victorina and Agustinito is a statement of a desire on how the

land should be subdivided. It cannot be said that it is a kind of division or partition of

property which clearly terminates co-ownership. The statement of Agustinito of an
assignment of shares cited by the respondent court was more of an expression on how a
future partition should be effected. In fact, the word positions was used in addition to
shares.
Same; Same; Sales; Redemption; The interpretation of the legal provisions on
redemption always tilts in favor of the redemptioner as against the vendee.It is to be noted
that Article 1623 stresses the need for notice in writing in three other species of legal
redemption namely: (1) redemption in a case where the share of all the other co-owners or
any of them are sold to a third person; (2) redemption by owners of adjoining lands when a
piece of rural land not exceeding one hectare in area is alienated; and (3) redemption by
owners of adjoining lands in the sale of a piece of an urban land so small and so situated
that the portion thereof cannot be used for any practical purpose within a reasonable time,
having been bought merely for speculation. In all the above-cited provisions of law, the
interpretation thereof always tilts in favor of the redemptioner and against the vendee. The
purpose is to reduce the number of participants until the community is terminated, being a
hindrance to the development and better administration of the property.
Same; Same; Same; Same; If a co-owner has offered to redeem the land within the
period fixed by law, he has complied with the lawhe may bring the action to enforce the
redemption after every offer has been rejected.In this case, the land has not been validly
partitioned between Consolacion Hermoso, who owns 2/3 and the heirs of Emilio Hermoso
who own 1/3 regardless of the sentiments of Consolacion on the land in dispute may later
have been. There has been no subsequent distribution among the co-heirs of their specific
shares. But even granting that the heirs divided the properties owned in common in the
May 29, 1974 Agreement, the right of legal redemption under Article 1620 of the Code,
would still subsist in their capacity as co-owners. For, if a co-owner has offered to redeem
the land within the period fixed by law, he has complied with the law. He may bring the
action to enforce the redemption after every offer has been rejected. This is exactly the
situation in this case.
Same; Same; Same; Same; Obligations; Prescription; The period of legal redemption is
not a prescriptive periodit is a condition precedent to the exercise of the right of
redemption.It was error for the respondent court to rule that the right of the petitioner to
redeem the alienated share had long prescribed. This finding fails to take into account that
the period of legal redemption is not a prescriptive period. It is a condition precedent to the
exercise of the right of redemption. It is a period set by law to restrict the right of the person
exercising the right of legal redemption. It is not one of prescription.

Same; Same; Same; Same; The written notice required by Article 1623 of the Civil Code
was enacted to remove all doubts and uncertainty that the alienation may not be definite;
While the law requires that the notice must be in writing, it does not state any particular
form thereof, so long as the reasons for a written notice are present.The written notice
required by Article 1623 of the Civil Code was enacted to remove all doubts and uncertainty
that the alienation may not be definite. The co-owners must know with certainty the
circumstances of the sale by his co-owners and the terms and the validity of the alienation.
Only after said knowledge is the co-owner required to exercise the right of redemption given
to him by law. While the law requires that the notice must be in writing, it does not state
any particular form thereof, so long as the reasons for a written notice are present. The
records of the case show that the sale of the brothers share was deliberately hidden from
the petitioners. For sometime after the sale, the petitioners were ignorant about its
execution. When they somehow heard rumors about it, they had to take one step after
another to find out if the information was true.
Same; Same; Same; Same; When the redemptioner offers to redeem within the period
fixed by law, he has complied with the condition precedent to the exercise of his rightthe
filing of an action to enforce the redemption is not the determining point. When the
petitioners offered to redeem within the period fixed by law, they complied with the
condition precedent to the exercise of their right. The filing of an action to enforce the
redemption is not the determining point in time. In Conejero, supra, this Court ruled that a
consignation of the tendered price is not necessary as long as a valid tender is present.
However, the offer to redeem is indispensable. Considering the indignation and the wrath of
the petitioners directed at the two brothers for their acts of alienating an undivided portion
of the property, despite the earlier redemption of the sale sold in 1979, there can be no
question about the willingness and capability of the petitioners to buy back the shares sold
in 1980.
Same; Same; Same; Same; Equity; In applying Article 1623 of the Civil Code on the
exercise of legal redemption to certain facts, the interpretation must be in favor of justice and
equity.In applying Article 1623 of the Civil Code on the exercise of legal redemption to
certain facts, the interpretation must be in favor of justice and equity. This Court explained
x x x. We test a law by its result. A law should not be interpreted so as not to cause an
injustice x x x. There are laws which are generally valid but may seem arbitrary when
applied in a particular case because of its peculiar circumstances. We are not bound to
apply them inslavish obedience to their language. Whether it is the vendees who will
prevail as in the Alonzo doctrine, or the redemptioners as in this case, the righting of justice
is the key to the resolution of the issues.

PETITION for review on certiorari of a decision of the Court of Appeals.

The facts are stated in the opinion of the Court.

Zosa & Quijano Law Offices for petitioners.
Lino M. Patajo and Hildawa and Gomez for private respondents.
MARTINEZ, J.:
This petition seeks the review of the decision dated July 24, 1992 of the Court of
Appeals which reversed the decision dated February 15, 1990 of the Regional Trial
Court of Bulacan in an action for legal redemption instituted by the petitioners
against the private respondents. The motion for reconsideration of petitioners was
likewise denied by the respondent court in its resolution dated December 22, 1992.
1

There is not much dispute about the background facts, thus we quote with favor
the factual antecedents as summarized by the Court of Appeals, to wit:
Emilio Hermoso, now deceased, and plaintiff Clarita Hermoso, were husband and wife
whose union was blessed with the following children: Rogelio, Victoria (another plaintiffappellee), Agustinito and Danilo Ciriaco, all surnamed Hermoso (the latter two being third
party defendants-appellees). Emilio Hermoso died on June 22, 1957, leaving as his
surviving heirs, his wife Clarita, and the four above-named children. Among the properties
left by Emilio Hermoso is an undivided one-third portion of a parcel of land, the whole of
which consisting of 7,842 square meters, more or less, is now covered by OCT No. 0-1054
(M) issued in 1983, situated at Calvario, Meycauayan, Bulacan.
The property was originally owned by Agrifina Francia and the ownership thereof was
transmitted upon her death to her three (3) children, to wit: Isidro, Consolacion, and Emilio
(herein appellees predecessor-in-interest) in the proportion of one-third (1/3) each.
Consolacion Hermoso, married to Manuel Cruz, later bought the one-third (1/3) undivided
share of her brother, Isidro Hermoso. Thus, as indicated in OCT No. 0-1054 (M),
Consolacion Hermoso owns two-thirds (2/3) thereof and the remaining one-third (1/3) is in
the name of the Heirs of Emilio Hermoso [Exhibit A].
On May 29, 1974, the Heirs of Emilio Hermoso executed a duly notarized Agreement
[Exh. 1-A], the pertinent portion of which reads, as follows:
2. That it is hereby agreed that for the convenience of all parties the following shall be observed in
the partition of the above-mentioned properties: that the share of CLARITA P. CARIN shall in all
cases be adjacent to the properties adjudicated to CONSOLACION HERMOSO CRUZ; then following

by the shares pertaining to DANILO CIRIACO HERMOSO, VICTORINA P. HERMOSO, ROGELIO

P. HERMOSO and AGUSTINITO P. HERMOSO, respectively, except in the partition of the parcel of
land situated in Calvario, Meycauayan, Bulacan, which is the subject of the DEED OF EXCHANGE
above-mentioned, in which case the share pertaining to CLARITA P. CARIN shall be adjacent to the
stonewall that segregates the share of CONSOLACION HERMOSO CRUZ, then followed by the
shares pertaining to ROGELIO P. HERMOSO, DANILO CIRIACO HERMOSO, VICTORINA P.
HERMOSO, and AGUSTINITO P. HERMOSO, at the extreme end, respectively. [Emphasis and
italics Ours]

Sometime in July, 1979, third party defendants-appellees Agustinito Hermoso and Danilo
Hermoso (Hermoso brothers for brevity) offered to sell their respective shares to the land
in dispute to one Benjamin Palaganas, brother of appellees Ceferino Palaganas and
Amanda Palaganas, who are old family acquaintances of the Hermosos since the lifetime of
their late landlord, Don Marcos Hermoso.
Upon being shown a copy of the duly notarized Agreement [Exh. 1-A], Ben Palaganas,
together with the Hermoso brothers, approached Atty. Ireneo E. Guardiano concerning the
preparation of a contract of sale, with the latter noting that the shares offered for sale are
separated by the share of Victoria Hermoso; hence, it would be more feasible for Danilo
Ciriaco to execute a deed of exchange with his sister, Victoria [TSN, 29 October 1986, p. 8].
A Deed of Exchange [Exh. 11] was thereafter drawn and signed by Danilo Ciriaco
Hermoso but the same was not however signed by Victoria Hermoso.
Nonetheless, this transaction did not materialize for the reasons that Clarita Carin
subsequently offered to redeem the shares sold by her children by returning the amount
already received by her son, Agustinito. By reason of their good relations and it appearing
that the sale was made without the knowledge and consent of Clarita Carin, Ben Palaganas
accepted the offer without suspiration.
In the month of October of the same year, Agustinito, then reviewing for the Bar
Examinations, and Danilo, in dire need of money, for the second time offered to sell their
respective shares to Ben Palaganas who acted for and in behalf of his brother, Dr. Ceferino
Palaganas, and sister, Dr. Amanda Palaganas (Palaganases, for brevity), this time giving
assurance that their mother (Clarita Carin) had already consented to the transaction and
that they could convince their sister, Victoria, to finally agree to an exchange of shares with
Danilo. Elated with this development, the Palaganases even offered a higher price
[P500,000.00] for the sale.
Thus, with these assurances, the parties executed on January 30, 1980 a duly notarized
Deed of Absolute Sale Over Two Undivided Shares To A Parcel of Land (Annex B,
Plaintiffs-Appellees; Exhibit 2, Appellants) with the Hermoso brothers receiving

P300,000.00 upon the execution of the contract, P100,000.00 to be paid upon the eviction of
the squatters/tenants thereon, and the balance of P100,000.00 to be paid upon the issuance
of title in the name of the vendees.
Upon the commencement of the present action (October 8, 1984), the Hermoso brothers
have already received a total amount of P401,500.00 with the last conditiontransfer of
titlenot having been yet fulfilled.
Contrary to the assurances made by the Hermoso brothers, plaintiffs-appellees
allegedly came to have known of the transaction only sometime between May, 1983 and
January, 1984 (Complaint, par. 8 in relation to TSN, 21 Nov. 1984, p. 32, Victoria Hermoso).
Thereafter, plaintiffs-appellees allegedly made arrangements to negotiate for the
redemption of the shares sold by the Hermoso brothers. This time, however, the
Palaganases were not so open to the idea of the offered repurchase for the value of the
property in dispute had considerably increased and that they have already set foothold on
said property by reason of their investments and the plans made for its development.
Furthermore, they relied upon the assurances made by the Hermoso brothers that the
transaction is known to Clarita Carin and Victoria Hermoso.
3

Consequently, considering the adamant refusal of the private respondents to resell

the disputed lots, petitioners on October 8, 1984 filed a complaint for legal
redemption before the Regional Trial Court of Bulacan, Branch 7, Malolos, with
prayer for the issuance of a writ of preliminary injunction to enjoin defendants
third-party plaintiffs from proceeding with the construction of the building thereon.
The trial court issued the writ prayed for. After trial on the merits, the court a
quo issued its decision dated February 15, 1990, the dispositive portion of which
reads:
WHEREFORE, judgment is hereby rendered in favor of the plaintiffs and against the
defendants and third-party defendants as follows:
1. 1.Ordering the defendants to allow the redemption of the shares sold to them by
their vendors, the third party defendants herein, and upon payment of the amount
of Four Hundred One Thousand Five Hundred (P401,500.00) Pesos, to surrender
the possession of the portion of the land covered by OCT No. 0-1054 (N), together
with whatever improvement they have constructed on the property, to the plaintiffs;
1. 2.Ordering the defendants to pay the plaintiffs, the amount of Twenty Thousand
(P20,000.00) Pesos by way of actual damages to cover the transportation expenses
of the plaintiffs from Cebu to Malolos and back and also attorneys fees in the

amount of Fifteen Thousand (P15,000.00) Pesos which plaintiffs have paid or are
bound to pay their counsel;
2. 3.Ordering the third party defendants to pay the defendants, damages by way of
legal interest in the amount computed at the rate of twelve (12%) per cent of the
P401,500.00 which shall commence from the date of the filing of the complaint on
October 8, 1984 until the said amount of P401,500.00 shall have been completely
paid to the defendants by the said plaintiffs.
Costs against the defendants.

On appeal, the issues were simplified by the respondent court as follows:

1. 1.Whether or not the property in dispute is still co-owned or has actually been
partitioned thereby terminating the co-ownership;
2. 2.If otherwise, whether or not the plaintiffs-appellees could still exercise the rights of
redemption.

The respondent court disagreed with the findings of the trial court and was of the
view that laws and jurisprudence favor the appellants, hence we reverse. The
dispositive portion of the appellate courts decision reads:
WHEREFORE, premises considered, the judgment appealed from is hereby REVERSED,
and a new one is entered dismissing the Complaint and ordering Third-Party Defendants to
pay on the Third Party Complaint, the Third Party Plaintiffs the amount of P10,000.00 by
way of attorneys fees.
The parties shall bear their respective costs.

In this petition for review, Clarita P. Hermoso, now Clarita Carin after her
remarriage, and her daughter Victoria P. Hermoso, raise the following grounds:
I.
THE RESPONDENT COURT ERRED IN NOT AGREEING WITH THE HOLDING OF
THE TRIAL COURT THAT THE AGREEMENT, MARKED AS EXHIBIT 1-A, IS NOT A
DEED OF PARTITION BUT IS A MERE SCHEME AS TO HOW TO PARTITION THE
PROPERTY IN QUESTION WHICH IS TEMPORARY IN CHARACTER AND SUBJECT
TO CHANGE AT ANY TIME AND IS NULL AND VOID AS FAR AS PETITIONER
VICTORIA P. HERMOSO IS CONCERNED BECAUSE SHE WAS STILL A MINOR WHEN

SAID AGREEMENT WAS EXECUTED AND HER CO-PETITIONER CLARITA P.

HERMOSO HAD NO AUTHORITY TO SIGN SAID AGREEMENT IN HER BEHALF.
II.
THE RESPONDENT COURT ERRED IN NOT HOLDING THAT THE PROPERTY IN
QUESTION WAS STILL UNDIVIDED AND WAS STILL UNDER CO-OWNERSHIP
DESPITE THE EXECUTION OF THE AGREEMENT MARKED AS EXHIBIT 1-A
BECAUSE CONSOLACION HERMOSO, CO-OWNER OF 2/3 OF SAID PROPERTY, WAS
NOT A PARTY TO SAID AGREEMENT;
III.
THE RESPONDENT COURT ERRED IN COUNTING THE DATE WHEN THE RIGHT
OF REDEMPTION SHOULD BE EXERCISED FROM THE TIME THE PETITIONERS
MADE A FORMAL OFFER TO REDEEM INSTEAD OF FROM THE TIME THE
PETITIONERS STARTED NEGOTIATING FOR THE REDEMPTION OF THE TWO
UNDIVIDED SHARES AFTER THEY WERE CERTAIN THAT SAID UNDIVIDED
SHARES WERE SOLD TO THE PRIVATE RESPONDENTS.
6

The trial and appellate courts disagreed as to the interpretation to be given to the
agreements and contracts and to the notice of sale involved in this case.
In the trial court, petitioners posited the theory that the disputed land is still
under co-ownership. On the basis of the same documentary evidence, the private
respondents contend that what the two brothers sold was already definite since
partition had already been effected.
The first two (2) grounds for this petition refer to the nature of the land sold to
the respondents. The question is: Was it still under co-ownership or had it already
been partitioned and divided among the co-owners?
In finding that the parcel of land covered and described in OCT No. 0-1054 (M)
had not been divided or partitioned among the co-owners, the trial court said:
In fact, there is no division yet between the spouses, Manuel Cruz and Consolacion
Hermoso Cruz on one hand and the Heirs of Emilio Hermoso on the other. This fact of coownership is easily discernible in the title itself which has not yet been cancelled, and
therefore still subsisting.

Therefore, it is ordered by the Court that said land be registered in accordance with the provisions of
the Land Registration Act, as amended,in the name of said spouses, Manuel C. Cruz and Consolacion
Hermoso; and heirs of Emilio Hermoso, namely: Clarita Pajo, Victoria Hermoso, Rogelio Hermoso,
Agustinito Hermoso, and Danilo Hermoso as their exclusive property,

The documents relating to the shares of the third party defendants readily show this
fact of co-ownership. Thus, in the untitled instrument introduced by the defendants marked
as Exhibit 3 which is an agreement to sell purportedly bearing the date October 10, 1979
signed by the Hermoso brothers, Agustinito and Danilo and stating how the P500,000.00
consideration of the sale shall be paid, what was referred to have been sold were the shares,
rights and interests over the land of the said vendors. This document states, among others:
That we have agreed to sell, transfer and convey unto spouses Dr. Ceferino C. Palaganas and Azucena
R. Palaganas, both of legal age, Filipinos and with residence and postal address at Baga,
Meycauayan, Bulacan all our shares, rights and interests over the above-described parcel of land free
from all liens and encumbrances under the following terms and conditions x x x Cf. Exhibit 3, def.,
italics supplied.

The document signed by the two brothers on January 30, 1980 was obviously prepared
at the instance of Ben Palaganas. Acknowledged before Notary Public Ireneo Guardiano
whose advice was sought by Ben Palaganas, its title is immediately revealing, as it is titled
Deed of Absolute Sale Over Two Undivided Shares to a Parcel of Land Cf. Exhibit C, pl.,
Exhibit 2, def., italics supplied. It is also stated in this document that what was sold by the
Hermoso brothers were shares, rights and interests over the above-described parcel of land
(which obviously refers to the land in question).
It is significant to note that in the deed of sale marked as Exhibit 2, defendant, the area
of the shares of the vendors, the Hermoso brothers were not specified. What was mentioned
on the matter of area is that of the whole parcel which is 7,829 square meters. If there was
a partition or separation of the portions of the whole land assigned to the owners named in
the title, the parcels conveyed could have been described with their specified metes and
bounds.
There was no subdivision plan presented by the defendants. In fact, there was none as
yet executed by a duly licensed geodetic engineer on that registered land. Ben Palaganas
who was then dealing with the Hermoso brothers, the named vendors in the document, is a
highly educated man. As he had testified, he is an accountant by profession and he had
served as head of a department of the Central Bank until his retirement from the
government. In the opinion of this court, he knew all along that what he or his principals
were buying at the time were the undivided shares, participation and interests of the
vendors to the land. His claim later in court that the shares of the vendors could already be

identified and segregated is difficult to believe. If his claim were true, Ben Palaganas with
his experience and educational background could have easily managed to execute the proper
document as a basis of an ultimate issuance of title in the name of the vendees. The
document which he relied upon which is Exhibit 1-A as the basis for his conclusion that the
Hermoso brothers were selling definite parcels of land is belied by the recitals of the
documents he himself introduced to the court, viz.,Exhibits 2 and 3. The document, Exhibit
1-A, if at all, could at best be considered as a scheme how the land could be divided in the
future among the heirs of Emilio Hermoso. Temporary in nature and subject to the
conformity of the 2 sets of co-owners to the land, the spouses Manuel Cruz and Consolacion
Hermoso Cruz had not participated in its execution. As it was, there was no sound basis for
Ben Palaganas or his principals to have assumed that Exhibit 1-A could be enforced against
the spouses Manuel Cruz and Consolacion Cruz and other third persons.
7

In overturning the aforequoted opinion of the trial court, the respondent court said
that:
In ascertaining whether the community still subsists, or that it had already been
extinguished by partition among the co-owners, it is not a mandatory requirement that the
property co-owned had been determined with unmistakable definiteness and clarity, as
where the property has been given a technical description after proper geodetic survey; it is
only required that the shares are properly determinable and the proper arrangements
thereof identifiable, as when nothing is left for the co-owners to do but to actually occupy
the portion pertaining to their share without any dispute arising over the extent of their
respective shares and the respective position of the parcels they are entitled to occupy.
Although OCT No. 0-1054 (M) reveals on its face the existence of co-ownership between
Consolacion Hermoso-Cruz and the Heirs of Emilio Hermoso, the fact that the shares are
separated by a stonewall (Cf. Exh. 1-A) unmistakably reveals the determinate or
determinable character of the property described under said certificate of title.
The court a quo subscribed to the theory that Exhibit 1-A is merely a scheme [of] how
the land could be divided in the future among the heirs of Emilio Hermoso. (g.v., Decision,
p. 5) Be that as it may, there is nothing more left to be done but the actual subdivision of
the property by a duly licensed geodetic engineer prior to the actual titling of their
respective shares. The corresponding shares of each of the heirs of Emilio Hermoso is not in
disputeone-fifth each; and their proper respective arrangements, one after another, had
likewise been included under Exhibit 1-A.
8

We agree with the trial courts findings that the records show co-ownership of
undivided property instead of definite portions of land having been assigned and
separately owned by each of the co-owners.
It should be stressed that it was Ben Palaganas, the vendee, who prepared the
Deed of Sale. The private respondents never had a hand in the preparation of the
document, even if the purchase was made in their behalf. The document states that
it is a Deed of Absolute Sale Over Two Undivided Shares to a Parcel of Land. Ben
Palaganas who prepared the deed of sale, knew and intended that the transaction
was over Two Undivided Shares of land. After all, as observed by the trial court,
Ben Palaganas was an accountant and was, prior to retirement from government
service, the head of a department in the Central Bank. Again, we quote the trial
court on this point, thus:
9

In the opinion of this court, he knew all along that what he or his principals were buying at
the time were the undivided shares, participation and interests of the vendors to the land.
His claim later in court that the shares of the vendors could already be identified and
segregated is difficult to believe. If his claim were true, Ben Palaganas with his experience
and educational background could have easily managed to execute the proper document as
a basis of an ultimate issuance of title in the name of the vendees. The document which he
relied upon which is Exhibit 1-A as the basis for his conclusion that the Hermoso brothers
were selling definite parcels of land is belied by the recitals of the documents he himself
introduced to the court, viz., Exhibits 2 and 3.
10

Ben Palaganas understanding and interpretation must necessarily prevail over that
of the private respondents who were not present during the transaction and whose
claims are colored by self-interest. In fact, the same document refers to the brothers
as co-owners of undivided shares in the disputed property.
11

It is plain from the deed of sale of two undivided shares that the absence of a
clear partition among the heirs of Emilio Hermoso complemented the similar
absence of a division of properties between the heirs and their aunt Consolacion
Hermoso Cruz. Two of the heirs were selling shares of undivided property which in
turn was also an undivided portion of a much larger undivided inheritance.
The alleged documents of exchange presented by the respondents to show a
partition with Consolacion would, to our mind, fall under the same category as the

1994 Agreement among the heirs of Emilio Hermoso, as we shall hereinafter

discuss.
The allegation about Consolacion having segregated and having given her 2/3
share of the inheritance viz-a-viz the 1/3 share of the heirs of Emilio Hermoso is
belied by the letter sent by husband Manuel Cruz in August 1981 to the Register of
Deeds of Bulacan which intimated his desire to buy the property of his co-owners in
his capacity as such. The spouses Cruz wanted to buy properties which they heard
had been alienated by their co-owners.
12

The absence of a deed of partition between Consolacion on the one hand, and the
heirs of Emilio on the other, is bolstered by the fact that the registered ownership is
that of the original owner over the entire property.
The deed of sale executed by the Hermoso brothers on January 30, 1980, referred
to undivided shares. Prior to the execution of this document, the Hermoso brothers
were parties to a non-notarized certification dated October 10, 1979, acknowledging
the receipt of P25,000.00 from the respondents, and wherein they were described as
co-owners with the petitioners.
13

14

The second paragraph of the certification states that We have agreed to sell,
transfer and convey unto the spouses Dr. Ceferino C. Palaganas and Azucena R.
Palaganas x x x all our shares, rights and interests over the above-described parcel
of land x x x. Note that the vendors who have described themselves as co-owners
agreed merely to sell their shares, rights and interests over the land. They were not
selling but were agreeing to sell. They did not sell a specific portion of land but
sold shares, rights and interests. It is to be further noted that as late as 1979 and
1980, Ben Palaganas and the Hermoso brothers, the parties to the deeds of sale,
were in complete agreement that there was a co-ownership.
15

The basis for the opinion of the respondent court that the co-ownership had been
terminated and the property was subdivided is the document dated May 24, 1974
denominated Agreement, executed by the heirs of Emilio Hermoso. The pertinent
portion of the agreement, which has been earlier cited and for emphasis, is
reproduced hereunder runs as follows:
2. That it is hereby agreed that for the convenience of all parties the following shall be
observed in the partition of the abovementioned properties: that the share of CLARITA P.

CARIN shall in all cases be adjacent to the properties adjudicated to CONSOLACION

HERMOSO CRUZ; then followed by the shares pertaining to DANILO CIRIACO
HERMOSO, VICTORINA P. HERMOSO, ROGELIO P. HERMOSO and AGUSTINITO P.
HERMOSO, respectively, except in the partition of the parcel of land situated in Calvario,
Meycauayan, Bulacan, which is the subject of the DEED OF EXCHANGE above-mentioned,
in which case the share pertaining to CLARITA P. CARIN shall be adjacent to the stonewall
that segregates the share of CONSOLACION HERMOSO CRUZ, then followed by the shares
pertaining to ROGELIO P. HERMOSO, DANILO CIRIACO HERMOSO, VICTORINA P.
HERMOSO, and AGUSTINITO P. HERMOSO, at the extreme end, respectively.

We agree with the trial court that this Agreement was merely a scheme as to how
the land would be subdivided in the future among the heirs. The owner of two-thirds
(2/3) of the property, Consolacion Hermoso, was not a party to the agreement. As a
majority owner of the undivided property, she could have demanded and insisted on
getting the particular portions which the respondent court ruled had already been
segregated in favor of the two vendors-brothers. The agreement among the heirs of
Emilio Hermoso as to shares following one another in a specific order cannot be
binding on the co-owner who owns 2/3 of the entire parcel but who was not a
signatory or party to the document.
The reference to a stonewall separating the shares of Consolacion Hermoso Cruz
from the share of Clarita Carin and the use thereof as reference point should not be
taken to mean that thereby a partition was effected among the heirs. The statement
of the Heirs of Emilio Hermoso that the 2/3 portion of the co-owner in relation to the
heirs of Emilio shall be adjacent to that of Clarita Carin followed by the shares of
Rogelio, Danilo, Victorina and Agustinito is a statement of a desire on how the land
should be subdivided. It cannot be said that it is a kind of division or partition of
property which clearly terminates co-ownership. The statement of Agustinito of an
assignment of shares cited by the respondent court was more of an expression on
how a future partition should be effected. In fact, the word positions was used in
addition to shares.
The documents evidencing the deed of sale are more authoritative in determining
the existence of co-ownership. The May 29, 1974 Agreement could not have been a
partition or division of co-owned properties because five and six years later, as can
be gleaned from the October 10, 1979 certification and from the January 13, 1980
Deed of Sale Over Two Undivided Shares To A Parcel of Land, both Ben Palaganas
who prepared the documents as vendee, and the brothers Agustinito and Danilo

who signed as vendors, were definite about the property being under co-ownership.
As late as August, 1981, Manuel Cruz, the husband of Consolacion, described the
parties as co-owners.
The private respondents, to buttress their stance that the standards of concrete
determinability and identifiability have been met in the case at bar, cited the case
of De la Cruz v. Cruz. We have read the case, regrettably the standards are not
present. In De la Cruz, the northern half of the property was assigned to the
plaintiff and the southern half to the defendant. In which case, such a division is
concrete and definite, which is not so in this case. Here, the majority co-owner,
Consolacion Hermoso, was not even consulted and the mention of names following
one another was apparently only a statement of who are the co-owners-heirs. It was
not a formal division or partition of the bigger property still to be validly partitioned
with Consolacion, owner of two-thirds (2/3) and later, among the co-heirs who owned
the remaining one-third (1/3). It is only a statement of a future action to be taken.
We, therefore, rule that the lot in question is still undivided property owned in
common by the co-heirs.
16

The second issue herein refers to the timeliness of exercising the right of legal
redemption. The petitioners question the respondent courts ruling that the right
had already prescribed when they exercised legal redemption.
The law apropos to this case is Article 1623 of the Civil Code, which provides:
Art. 1623. The right of legal pre-emption or redemption shall not be exercised except within
thirty days from the notice in writing by the prospective vendor, or by the vendor, as the
case may be. The deed of sale shall not be recorded in the Registry of Property, unless
accompanied by an affidavit of the vendor that he has given written notice thereof to all
possible redemptioners.
The right of redemption of co-owners excludes that of adjoining owners.

An identical provision governing co-heirs is found in Article 1088 of the Civil Code,
quoted hereunder:
Art. 1088. Should any of the heirs sell his hereditary rights to a stranger before the
partition, any or all of the co-heirs may be subrogated to the rights of the purchaser by
reimbursing him for the price of the sale, provided they do so within the period of one
month from the time they were notified in writing of the sale by the vendor.

It is to be noted that Article 1623 stresses the need for notice in writing in three
other species of legal redemption namely: (1) redemption in a case where the share
of all the other co-owners or any of them are sold to a third person; (2) redemption
by owners of adjoining lands when a piece of rural land not exceeding one hectare in
area is alienated; and (3) redemption by owners of adjoining lands in the sale of a
piece of an urban land so small and so situated that the portion thereof cannot be
used for any practical purpose within a reasonable time, having been bought merely
for speculation.
17

18

19

In all the above-cited provisions of law, the interpretation thereof always tilts in
favor of the redemptioner and against the vendee. The purpose is to reduce the
number of participants until the community is terminated, being a hindrance to the
development and better administration of the property. Thus, we agree with the
trial court when it said:
20

The purpose of Article 1067 (of the old Civil Code, now Article 1088 of the present Civil
Code) is to keep strangers to the family out of a joint ownership, if, as is often the case, the
presence of outsiders be undesirable and the other heir or heirs be willing and in a position
to repurchase the share sold (De Jesus vs. Manglapus, 81 Phil. 144). While there should be
no question that an heir may dispose his right before partition (Rivero vs. Serrano[CA] 46
O.G. 642; Wenceslao vs. Calimon, 46 Phil. 906; Hernaez vs. Hernaez, 32 Phil. 214), a co-heir
would have had to pay only the price for which the vendee acquired it (Hernaez vs.
Hernaez, Ibid.).
21

It is a one-way street. It is always in favor of the redemptioner since he can compel

the vendee to sell to him but he cannot be compelled by the vendee to buy the
alienated property.
In this case, the land has not been validly partitioned between Consolacion
Hermoso, who owns 2/3 and the heirs of Emilio Hermoso who own 1/3 regardless of
the sentiments of Consolacion on the land in dispute may later have been. There has
been no subsequent distribution among the co-heirs of their specific shares. But
even granting that the heirs divided the properties owned in common in the May 29,
1974 Agreement, the right of legal redemption under Article 1620 of the Code,
would still subsist in their capacity as co-owners. For, if a co-owner has offered to
redeem the land within the period fixed by law, he has complied with the law. He
may bring the action to enforce the redemption after every offer has been rejected.
This is exactly the situation in this case.

The respondent court found that the petitioners already had notice of the sale in
January 1984. Considering that the letter, coursed through Atty. Sandico, offering
to redeem the property was made only in September 1984, the appellate court was
of the view that the action to enforce redemption had prescribed. A perusal of the
record, however, shows that after Ben Palaganas had confirmed the transaction, the
petitioners confronted the two brothers who were compelled to admit they have sold
their shares. The vendor-brothers never took the initiative of informing their coheirs in writing that they have alienated their shares. As found by the trial court,
the petitioners immediately started negotiations with Ben Palaganas to redeem the
alienated share. At this time, the payment for the shares had not yet been
completed neither by Ben Palaganas nor by the private respondents.
22

The observation of the trial court on this issue is enlightening, thus:

It is evident from the evidence in the record that the vendors, i.e.,the Hermoso brothers,
Agustinito and Danilo had not notified in writing or even verbally their co-heirs which
include the plaintiffs herein before or during the execution of the sale of their shares to Ben
Palaganas or the defendants. The transaction of these two brothers had with Ben Palaganas
was kept out of the knowledge of their mother and sister, the plaintiffs herein. Their need
for funds must have been urgent and it was obvious that their mother if advised what they
intended to do with the land could have objected to it. This reaction from the plaintiffs was
easily expected because when Agustinito Hermoso sold his share to Ben Palaganas in July
1979, the same was aborted by the plaintiff, Clarita Carin. On this regard, Agustinito
Hermoso, one of the two third party defendants testified:

Did you inform your mother and sister about the

sale of these properties?

During that time?

Yes.

I did not.
xxx

xxx

xxx

ATTY. GARCIA:
Q

Do you know when, for the first time, did your

mother and your sister came to know of this sale?

Personally, I do not know when they came upon that

knowledge.

(TSN, 5-22-86, pp. 10-11)

ATTY. HERMOSO:
Q

Did you ever consult your mother or your sister of

your desire to sell the property?

No, sir.

Why not?

Because I personally believe that what we were

selling then were but our right to the said property.

How about your brother Danilo Hermoso, did he

inform your mother and sister about the sale of the
property?
xxx

xxx

xxx

Danilo Hermoso, my brother, told me that he did not

inform our mother and our sister about his desire to
sell his share on the property.

(TSN, 5-21-87, pp. 12-13 & 15)

ATTY. OSORIO:
Q

How about the second sale which included the share

of your brother?

No, we did not inform our mother regarding our

desire to sell our respective properties, sir.

Article 1088 of the Civil Code is applicable in the instant case. But whether it is under this
article or Article 1623 of same Code, the period of 30 days has not began to run.
When the plaintiffs had become certain after Ben Palaganas had confirmed the
transaction that there was such a sale covering the shares of the third party defendants
(tsn, 6-19-86, pp. 20-21) sometime in 1984, the vendors had to admit to the herein plaintiffs
the fact of sale. Plaintiffs immediately started negotiations with Ben Palaganas to redeem
the shares sold by the vendors. Ben Palaganas or the defendants after all, had not
completely paid the whole consideration of the sale by that time. Ben Palaganas did not
want to give money anymore to the vendors as the amounts already paid had amounted to
P401,500.00 (see footnote of Ben Palaganas in Exhibit 10). The several payments made to
the vendors are evidenced by Exhibits 3, 4, 5, 6, 7, 8, 9 and 10. Ben Palaganas acting for
himself or for the defendants refused the offer of the plaintiffs to redeem the land, claiming
that the rights to the land of his principals to the vendors shares to the land was already
established. The formal demand to redeem was sent by the plaintiffs through counsel to the
defendants (Exhibit B, p. 203, record). Still the defendants did not respond accordingly.
They had instead constructed a building within the land covered by the title and in a place
therein, relying on the temporary scheme of partition marked as Exhibit 1-a. To the
plaintiffs, there was no other recourse except to go to court. And they did by filing this
complaint on October 4, 1984 with the court.
23

Ben Palaganas confirmed the offer to redeem. When questioned why the private
respondents agreed to the return of the sold shares in 1979 but refused to do so in
1980, this witness waxed sentimental and gave a lengthy narration of the debt of
gratitude his family owed to the Hermoso family. Ben Palaganas related that the
patriarch Marcos Hermoso allowed the Palaganas clan to build their house on his

land and to stay there for 27 years without paying rent. And, when three sons and
one daughter of the Palaganases were in medical school, and the family ran out of
funds, Marcos Hermoso extended financial assistance without interest and payable
only when the Palaganases could afford to pay. Out of respect for the Hermoso
family, Ben Palaganas related, the private respondents agreed to the cancellation of
the 1979 sale. However, in 1984 when the offer to redeem the share sold in 1980 was
made, the Palaganas clan no longer wanted to resell the property. Considering that
over the intervening years, they had paid on a piecemeal basis the amount of
P400,000.00 to the two brothers and out of self-respect refused to agree to the
redemption. But since the property purchased had already increased in value not
only self-respect but apparently self-interest had entered the picture.
It was error for the respondent court to rule that the right of the petitioner to
redeem the alienated share had long prescribed. This finding fails to take into
account that the period of legal redemption is not a prescriptive period. It is a
condition precedent to the exercise of the right of redemption. It is a period set by
law to restrict the right of the person exercising the right of legal redemption. It is
not one of prescription.
24

The written notice required by Article 1623 of the Civil Code was enacted to
remove all doubts and uncertainty that the alienation may not be definite. The coowners must know with certainty the circumstances of the sale by his co-owners and
the terms and the validity of the alienation. Only after said knowledge is the coowner required to exercise the right of redemption given to him by law.
25

While the law requires that the notice must be in writing, it does not state any
particular form thereof, so long as the reasons for a written notice are present. The
records of the case show that the sale of the brothers share was deliberately hidden
from the petitioners. For sometime after the sale, the petitioners were ignorant
about its execution. When they somehow heard rumors about it, they had to take
one step after another to find out if the information was true.
It is to be noted that in the case at bar, not only were the petitioners intentionally
kept in the dark for several years but even after knowledge of the act of the two
brothers, they still had difficulty in ascertaining and confirming its veracity. Far
from giving the notice required by law or giving information on the history and
details of the sale, Agustinito and Danilo gave the petitioners the run-around until

the brothers were practically forced to admit it and the petitioners immediately
went to see Ben Palaganas. In their dialogue with Ben Palaganas, petitioners
offered to redeem the property, but this time, unlike the first, the offer was rejected.
When the petitioners offered to redeem within the period fixed by law, they
complied with the condition precedent to the exercise of their right. The filing of an
action to enforce the redemption is not the determining point in time. In Conejero,
supra, this Court ruled that a consignation of the tendered price is not necessary as
long as a valid tender is present. However, the offer to redeem is indispensable.
Considering the indignation and the wrath of the petitioners directed at the two
brothers for their acts of alienating an undivided portion of the property, despite the
earlier redemption of the sale sold in 1979, there can be no question about the
willingness and capability of the petitioners to buy back the shares sold in 1980.
26

In applying Article 1623 of the Civil Code on the exercise of legal redemption to
certain facts, the interpretation must be in favor of justice and equity. This Court
explainedx x x. We test a law by its result. A law should not be interpreted so as
not to cause an injustice x x x. There are laws which are generally valid but may
seem arbitrary when applied in a particular case because of its peculiar
circumstances. We are not bound to apply them in slavishobedience to their
language.
27

Whether it is the vendees who will prevail as in theAlonzo doctrine, or the

redemptioners as in this case, the righting of justice is the key to the resolution of
the issues.
The standards and conditions of legal redemption provided under Article 1623 of
the Civil Code have not been met in this petition. Furthermore, there is the fact that
justice and equity, as the law provides, are also on the side of the petitioners. As we
said, the righting of an injustice is the key to the resolution of this case and thus
would be the end result of our decision.
The two brothers, Agustinito and Danilo Hermoso, were still students when they
sold their shares in their inheritance. In 1979, Agustinito was already a graduating
student of law. According to the trial court, it was sometime in October of that year,
he and his younger brother Danilo separately needed cash which they could not
easily secure from their mother, Clarita Carin, one of the plaintiffs

herein. However, if they were strapped of cash, considering that their allowances
were insufficient for their needs, they could have pleaded with their mother for
additional funds instead of selling the still undivided property without her
knowledge and against her known will. They knew that their mother was against
the very idea of selling a portion of the undivided property considering that
Consolacion Hermoso cancelled the prior sale made by them in July 1979 by
redeeming the property. From the records, one gets the impression that the two
brothers, Agustinito and Danilo, were irresponsible and self-centered, failing to
consider the wishes of their mother.
28

Ben Palaganas, who represented the respondents in a transaction, admitted a

debt of gratitude to the Hermoso family. Yet, apparently he took advantage of the
situation. Through several years he doled out funds in installments to the two
brothers in partial payment of the disputed property until the indebtedness had
reached an amount that Agustinito and Danilo had no other recourse but to sell
their inheritance and practically compelled them to execute the deed of sale in
dispute.
Again, we reiterate the salient fact that Clarita Carin, their mother, and Victoria
Hermoso, their sister, were kept in the dark about the sale. Considering the factual
background of this case, the honorable and expected step for the Palaganas was to
inform the petitioners about the action taken by Agustinito and Danilo. Instead, as
the record reveals the parties to the sale concealed the transaction from petitioners
for four (4) years. It was only after hearing rumors about the sale when petitioners
started to investigate and search for evidence to confirm their hearsay knowledge
about the transaction. Even then, the two brothers and the Palaganases gave them
a hard time.
The Palaganas clan knew all along the strong feelings of the petitioners against
the alienation of share in the still undivided property. This was their second
attempt to buy the property. As a matter of fact, they knew that in 1979 when the
land was first sold, the petitioners immediately took steps to cancel the sale upon
discovery thereof. In 1980, the private respondents and Ben Palaganas still did
exactly what the petitioners vigorously opposed and did not want to happen. They
also hid the sale from the petitioners until confronted with facts that they could no
longer hide or deny. The impressions of the trial judge is worth quoting hereunder
thus:

It is obvious that the acts of Ben Palaganas or his principals would be considered as done
in bad faith. Ben Palaganas should not be allowed to say that he had relied merely on the
impressions given by the vendors, the Hermoso brothers. Aside from what was obvious in
the documents executed by the Hermoso brothers, he should have inquired or verified said
impressions made by the vendors from the plaintiffs or any of the co-owners to the property.
The evidence in the record shows that it was their intense desire to own a property in the
place where the land is located because of the business potentials thereat stated herein
above. They did not exercise the diligence of a good father of a family because they did not
want to, what with their experience with the first transaction affecting the share of the
third party defendant, Agustinito Hermoso which took place only in July, 1979 a few
months earlier to the transaction in question.
29

There can be no doubt that the Palaganas clan were in bad faith at the time they
bought the disputed property from the Hermoso brothers. We cannot thus close our
eyes to the injustice which would befall the petitioners considering that this is not
the first time that they have expressed their desire to redeem the property sold by
the Hermoso brothers. Under the circumstances, it is just and equitable to rule in
favor of the exercise of legal redemption.
WHEREFORE, the assailed decision of the Court of Appeals should be, as it is
hereby, REVERSED and SET ASIDE. The decision of the Regional Trial Court
dated February 15, 1990 is hereby REINSTATED.
SO ORDERED.
Bellosillo (Chairman), Puno and Mendoza, JJ.,concur.
Judgment reversed and set aside, that of the court a quo reinstated.
Notes.Where the right to redeem is exercised through judicial action within
the reglementary period, the formal offer to redeem, accompanied by a bona fide
tender of the redemption price, while proper, may be unessentialthe filing of the
action itself is equivalent to a formal offer to redeem. (Lee Chuy Realty Corporation
vs. Court of Appeals,250 SCRA 596 [1995])
A third person, within the meaning of Article 1620 of the Civil Code (on the right
of legal redemption of a co-owner) is anyone who is not a co-owner. (Pilapil vs. Court
of Appeals, 250 SCRA 566 [1995])

o0o

G.R. No. 26855. April 17, 1989.

FRANCISCO GARCIA, PAZ GARCIA, and MARIA GARCIA, petitioners, vs. JOSE
CALALIMAN, PACIENCIA TRABADILLO, & HON. COURT OF APPEALS, Third
Division, respondents.
Civil Law; Wills and Succession; Partition and Distribution of Estate; Sale of
Hereditary Rights Before Partition; Legal Redemption; The written notice required under
Art. 1088 of the Civil Code for purposes of legal redemption is indispensable.The issue
has been squarely settled in the case of Castillo v. Samonte, where this Court observed:
Both the letter and spirit of the new Civil Code argue against any attempt to widen the
scope of the notice specified in Article 1088 by including therein any other kind of notice,
such as verbal or by registration. If the intention of the law had been to include verbal
notice or any other means of information as sufficient to give the effect of this notice, then
there would have been no necessity or reasons to specify in Article 1088 of the New Civil
Code that the said notice be made in writing for, under the old law, a verbal notice or
information was sufficient (106 Phil. 1023 [1960]). In the above-quoted decision the Court
did not consider the registration of the deed of sale with the Register of Deeds sufficient
notice, most specially because the property involved was unregistered land, as in the instant
case. The Court took note of the fact that the registration of the deed of sale as sufficient
notice of a sale under the provision of Section 51 of Act No. 496 applies only to registered
lands and has no application whatsoever to a case where the property involved is,
admittedly, unregistered land. Consistent with aforesaid ruling, in the interpretation of a
related provision (Article 1623 of the New Civil Code) this Court had stressed that written
notice is indispensable, actual knowledge of the sale acquired in some other manner by the
redemptioner, notwithstanding. He or she is still entitled to written notice, as exacted by
the Code, to remove all uncertainty as to the sale, its terms and its validity, and to quiet
any doubt that the alienation is not definitive. The law not having provided for any

alternative, the method of notifications remains exclusive, though the Code does not
prescribe any particular form of written notice nor any distinctive method for written
notification of redemption (Conejero et al. v. Court of Appeals et al. 16 SCRA 775 [1966];
Etcuban v. Court of Appeals, 148 SCRA 507 [1987]; Cabrera v. Villanueva, G.R. No. 75069,
April 15, 1988).
Same; Same; Same; Same; Same; Same; Same; In the absence of a written notification
of the sale by the vendors, the 30-day period provided in Art. 1088 has not even begun to
run.Petitioners fault the appellate court in not awarding them damages, attorneys fees
and costs. After finding in favor of respondent spouses and against petitioners herein it is
untenable for petitioners to expect that the appellate court would award damages and
attorneys fees and costs. However as already discussed, petitioners have not lost their right
to redeem, for in the absence of a written notification of the sale by the vendors, the 30-day
period has not even begun to run. Petitioners clearly can claim attorneys fees for bad faith
on the part of respondents, first, for refusing redemption, and secondly for declaring the
entire land as theirs, although they knew some heirs had not sold their shares.

PETITION for certiorari to review the decision of the Court of Appeals. Concepcion,
Jr., J.
The facts are stated in the opinion of the Court.
Jose Gaton for petitioners.
Ricardo Q. Castro for respondents.
PARAS, J.:
This is a petition for review on certiorari of the decision of the Court of Appeals
in CA G.R. No. 22179-R, promulgated on August 31, 1966, reversing the decision of
the Court of First Instance of Iloilo in Civil Case No. 3489, and rendering a new
one dismissing the complaint of petitioner herein, the dispositive portion of which
reads as follows:
**

***

WHEREFORE, the judgment appealed from is hereby reversed and another entered,
dismissing plaintiffs complaint. No pronouncement as to costs. (p. 29 Rollo)

The facts of the case are as follows:

On February 11, 1946, one Gelacio Garcia died intestate, leaving a parcel of
unregistered land about 372 sq. meters, situated in the Municipality of Tubungan,
Province of Iloilo (Exhibits, p. 19). On his death the property was inherited by his
nephews, nieces, grandnephews who are the descendants of his late brothers, Pedro,
Simeon, Buenaventura and Marcos (TSN, Sept. 6, 1956, p. 3).
On December 3, 1954, the heirs, Juanita Bertomo, Joaquin Garcia, Porfirio
Garcia, Dioscoro Garcia, Flora Garcia, Consolacion Garcia, Remedios Garcia,
Trinidad Garcia, Baltazar Garcia signed a document entitled, Extrajudicial
Partition and Deed of Sale (Exhibits, p. 19). The parcel of land subject of the
document was described as follows:
A parcel of residential land, about 372 square meters, 1st class, identified as Assessors Lot
No. 107, Block No. 8, bounded on the north by Paz and Federal Streets; on the south by
Tabaosares and Antonia Tacalinar; on the East by Piedad Street; and on the West by Paz
Street. This parcel of land has no concrete monuments to indicate its boundaries but there
are dikes, stones and temporary fences used as landmarks and boundary signals. This
parcel of land is covered by Tax Declaration No. 1149, S. of 1947, in the name of Gelacio
Garcia, and its assessed value of P110.00. (p. 19, Exhibits)

The last paragraph of the same document states:

That for and in consideration of the sum of FIVE HUNDRED PESOS (P500.00), Philippine
Currency, to us in hand paid by the spouses, JOSE CALALIMAN, and PACIENCIA
TRABADILLO, all of legal age, Filipinos and residents of the municipality of Tubungan,
province of Iloilo, Philippines, receipt of which we hereby aknowledged and confessed to our
entire satisfaction, do by these presents, cede, sell, convey and transfer the above-described
parcel of land unto the said spouses, Jose Calaliman and Paciencia Trabadillo, their heirs,
successors and assigns free from all liens and encumbrances whatsoever. (p. 19, Exhibits)

The document was inscribed in the Register of Deeds of Iloilo on February 24, 1955,
Inscription No. 20814, Page 270, Vol. 64 (Exhibits, p. 20).
On December 17, 1954 another group of heirs, Rosario Garcia, Margarita Garcia,
Dolores Rufino, Resurreccion Tagarao, Serafin Tagarao, Buenaventura Tagarao,
Fortunata Garcia and Simeon Garcia, all residents of Isabela, Negros Occidental,
also sold to the spouses Jose Calaliman and Paciencia Trabadillo through their
attorney-in-fact, Juanito Bertomo, their shares, rights, interest and participation in
the same parcel of land. The Deed of Sale was registered in the Register of Deeds of

Iloilo also on December 22, 1954, Inscription No. 20640, p. 88, Vol. 64 (Exhibits, p.
2122).
On May 7, 1955 the heirs Francisco Garcia, Paz Garcia, and Maria Garcia,
petitioners herein, filed against the spouses Jose Calaliman and Paciencia
Trabadillo, private respondents herein, Civil Case No. 3489 with the Court of First
Instance of Iloilo, for legal redemption of the 3/4 portion of the parcel of land
inherited by the heirs from the late Gelacio Garcia, which portion was sold by their
co-heirs to the defendants. In the complaint (Record on Appeal, p. 4) plaintiffs
alleged, among others:
1. 5.That, plaintiffs co-owners had never offered for sale their interest and shares
over the said land to the plaintiffs prior to the sale in favor of the defendants, nor
given notice of such intention on their part; and that, no notice in writing has been
given by said co-owners to the plaintiffs of the said sale, such that, plaintiffs came
to learn of it only from other source;
2. 6.That, plaintiffs would have purchased the interest and shares of their coowners had the latter offered the same to them

1. prior to the sale thereof to the defendants; and that, within 30 days after learning of
the sale made to the defendants under annexes A, B and B-1, plaintiffs made
repeated offer to the defendants to allow them to redeem said interest and shares
acquired by the defendants in accordance with the right granted to the plaintiffs by
law in such a case, offering a reasonable price thereof of P300 taking into
consideration the fact that the defendants had acquired only 3/4 of the land of 372
square meters more or less, in area with assessed value of P110 and a fair market
value of 372 at P1 per square meter, the price actually obtaining in the locality at
the time of the sale thereof under Annexes A, B and B-1; however, the defendants
refused and have until the present refused to grant redemption thereof giving no
reason why other than challenging the plaintiffs to bring their case in court:
2. 7.That, the circumstances surrounding the transaction between the defendants
and plaintiffs co-owners, the vendors, were such that defendants could not have
actually paid nor the vendors actually received the total price of P800 as stipulated
in the deeds Annexes A, B and B-1, while the said price fixed is grossly excessive
and highly exaggerated and prohibitive for evidently ulterior motive:
3. 8.That, the land herein described is an ancestral property and plaintiffs have
actually a house standing thereon and having lived thereon ever since, such that,

the defendants refusal to allow redemption thereof has caused the plaintiffs mental
torture, worry and anxiety, forcing them to litigate and retain services of counsel,
therefore, plaintiffs demand against the defendants P500 for moral damage, P500
for exemplary damage, P300 for attorneys fees, aside from actual expenses
incurred; and, furthermore, P5 monthly as reasonable value of defendants
occupation of a portion of the premises counting from the filing of this complaint.

They prayed that the trial court render judgment:

1. 1.Declaring the plaintiffs to be entitled to redeem from the defendants for the
price of P300 or for such reasonable price as may be determined by this Honorable
Court the interest and shares over the land described in this complaint of plaintiffs
co-owners, Joaquin, Porfirio, Flora, Dioscoro, Consolacion, Remedios, Trinidad,
Baltazar, Rosario, Margarita, Dolores, Fortunata and Simon, all surnamed Garcia,
and Resurreccion, Serafin and Buenaventura, all surnamed Tagarao, sold by them
to the defendants under the deeds of sale

1. Annexes A, B and B-1 of this complaint; and ordering the defendants to execute
the proper instrument of reconveyance or redemption thereof in favor of the
plaintiffs; and, ordering them to vacate the premises;
2. 2.Condemning the defendants to pay to the plaintiffs P500 for moral damage;
P500 for exemplary damage; P300 for attorneys fees and actual expenses incurred;
P5 monthly from the filing of this complaint as reasonable value of defendants
occupation of a portion of the land; the costs of this action; and, for such other relief
and remedy as may be legal, just and equitable.

On the other hand, the defendants, private respondents herein, alleged in their
answer the following special affirmative defenses (Record on Appeal, p. 14):
1. 1.That plaintiffs have no cause of action against the herein defendants;
2. 2.That due notices in writing have been sent to plaintiff Francisco Garcia at his
residence at 2875 Felix Huertas St., Sta. Cruz, Manila, sometime last June 1953, in
which plaintiff Francisco Garcia was informed of his co-owners signified intention
to sell their shares, and likewise, the other plaintiffs Paz and Maria Garcia were
personally notified of the same hence, for that reason, they are now barred to claim
legal redemption of the land in question, having filed their belated claim too late.

The trial court rendered judgment on September 12, 1957 in favor of the plaintiffs
(Record on Appeal, p. 15), the dispositive portion of which reads as follows:
WHEREFORE, judgment is hereby rendered:
1. (a)Sentencing the defendants to resell the property to the plaintiffs for P800.00
which is the total consideration of the two deeds of sale Exhibits A and B;
2. (b)In the event that the defendants fail to execute the deed of resale within ten days
from the date this decision becomes final, the Clerk of Court is hereby ordered to
execute the corresponding deed pursuant to the provisions of Section 10 of Rule 39
of the Rules of Court;
3. (c)Without pronouncement as to costs.

On October 14, 1957 plaintiffs filed their notice of Appeal predicated on (a) failure
of the Court to adjudge the real or reasonable price of the sale or otherwise the
redemption value thereof; (b) failure of the Court to adjudge damages including
attorneys fees in favor of the plaintiffs and the costs. (Record on Appeal, p. 18).
Defendants filed their own notice of appeal on October 15, 1957 (Record on
Appeal, p. 19).
On appeal the Court of Appeals in a decision promulgated on August 31, 1966
reversed the decision of the trial court and rendered another one dismissing
plaintiffs complaint with no pronouncement as to costs (Rollo, p. 22).
The instant petition for review by certiorari was filed with the Court on
December 12, 1966 (Rollo, p. 11). The Court at first dismissed the petition in a
resolution dated December 22, 1966, for insufficient supporting papers (Rollo, p. 35)
but reconsidered the said Resolution of Dismissal later in a Resolution dated
February 8, 1967 (Rollo, p. 97) as prayed for in a motion for reconsideration filed by
petitioners on February 1, 1967 (Rollo, p. 38). The same Resolution of February 8,
1967 gave due course to the petition.
The Brief for the Petitioners was filed on June 9, 1967 (Rollo, p. 106); the Brief
for the Respondents was received in the Court on August 31, 1967 (Rollo, p. 119).

Petitioners having manifested they would not file reply brief on September 14,
1967 (Rollo, p. 122) the Court considered the case submitted for decision, in a
Resolution dated September 21, 1967 (Rollo, p. 124).
Petitioners assign the following errors:
1. I.THE HONORABLE COURT OF APPEALS ERRED IN DECLARING THAT THE
30-DAY PERIOD PRESCRIBED IN ARTICLE 1088 OF THE NEW CIVIL CODE
FOR A CO-HEIR TO EXERCISE HIS RIGHT OF LEGAL REDEMPTION, HAD
ALREADY ELAPSED WHEN THE HEREIN PLAINTIFFS FILED THE ACTION
ON MAY 7, 1955.
2. II.THE HONORABLE COURT OF APPEALS ERRED IN DECLARING THAT
THERE WAS NO OFFER TO REIMBURSE THE DEFENDANTS FOR THE
PORTION OF THE LAND IN QUESTION SOLD TO THEM BY THE CO-HEIRS
OF THE PLAINTIFFS.

1. III.THE HONORABLE COURT OF APPEALS ERRED IN REVERSING THE

JUDGMENT OF THE LOWER COURT, AND IN NOT ADJUDGING DAMAGES,
ATTORNEYS FEES AND COSTS IN FAVOR OF THE PLAINTIFFS.
(Brief for the Petitioners, p. 1)

There is no question that the provision of law applicable in the instant case is Art.
1088 of the New Civil Code (Art. 1067, Old Civil Code) as the matter concerns heirs
and inheritance not yet distributed (Wenceslao v. Calimon, 46 Phil. 906 [1923]). Art.
1088 states:
Article 1088. Should any of the heirs sell his hereditary rights to a stranger before the
partition, any or all of the co-heirs may be subrogated to the rights of the purchaser by
reimbursing him for the price of the sale, provided they do so within the period of one
month from the time they were notified in writing of the sale by the vendor. The main issue
is whether or not petitioners took all the necessary steps to effectuate their exercise of the
right of legal redemption within the period fixed by Art. 1088 of the Civil Code.

It is undisputed that no notification in writing was ever received by petitioners

about the sale of the hereditary interest of some of their co-heirs in the parcel of
land they inherited from the late Gelacio Garcia, although in a letter dated June 23,
1953 petitioner Francisco Garcia wrote one of his co-heirs, Joaquin Garcia, who is
an uncle of petitioners, proposing to buy the hereditary interests of his co-heirs in

their unpartitioned inheritance, (Exhibit, p. 3). Although said petitioner asked that
his letter be answered in order that I will know the results of what I have
requested you, (Exhibit, p. 14) there is no proof that he was favored with one.
Petitioners came to know that their co-heirs were selling the property on
December 3, 1954 when one of the heirs, Juanito Bertomo, asked Petitioner Paz
Garcia to sign a document prepared in the Municipality of Tubungan because the
land they inherited was going to be sold to private respondent, Jose Calaliman
(TSN, September 6, 1957, p. 60). The document mentioned by petitioner Paz Garcia
could be no other than the one entitled Extra-Judicial Partition and Deed of Sale
dated December 3, 1954 as it is in this document that the name of Paz Garcia,
Maria Garcia and Amado Garcia appear unsigned by them (Exhibits, p. 19).
It is not known whether the other heirs whose names appear in the document
had already signed the document at the time Paz Garcia was approached by Juanito
Bertomo. Paz Garcia, however, testified that she immediately informed her brother
Francisco that Juanita Bertomo wanted to sell the land to Jose Calaliman (TSN,
September 6, 1957, p. 62). On December 26, 1954 he wrote respondents giving them
notice of his desire to exercise the right of legal redemption and that he will resort
to court action if denied the right (Exhibits, p. 8). The respondents received the
letter on January 13, 1955 but petitioner Francisco Garcia did not get any answer
from them. Neither did respondents show him a copy of the document of sale nor
inform him about the price they paid for the sale when he went home to Tubungan
from Manila sometime in March 1955 and went to see the respondent spouse about
the matter on March 24, 1955 (TSN, September 6, 1957, p. 18).
Because of the refusal of respondent Jose Calaliman to show him the document of
sale or reveal to him the price paid for the parcel of land, petitioner Francisco
Garcia went to the Office of the Register of Deeds on the same date, March 24, 1955
and there found two documents of sale regarding the same parcel of land (TSN, Ibid,
p. 19).
Petitioners filed the case for legal redemption with the trial court on May 7, 1955.
Respondents claim that the 30-day period prescribed in Article 1088 of the New
Civil Code for petitioners to exercise the right to legal redemption had already
elapsed at that time and that the requirement of Article 1088 of the New Civil Code
that notice must be in writing is deemed satisfied because written notice would be

superfluous, the purpose of the law having been fully served when petitioner
Francisco Garcia went to the Office of the Register of Deeds and saw for himself,
read and understood the contents of the deeds of sale (Brief for respondents, p. 6).
The issue has been squarely settled in the case ofCastillo v. Samonte, where this Court observed:
Both the letter and spirit of the new Civil Code argue against any attempt to widen the scope of the notice
specified in Article 1088 by including therein any other kind of notice, such as verbal or by registration. If the
intention of the law had been to include verbal notice or any other means of information as sufficient to give the
effect of this notice, then there would have been no necessity or reasons to specify in Article 1088 of the New
Civil Code that the said notice be made in writing for, under the old law, a verbal notice or information was
sufficient (106 Phil. 1023[1960]).

In the above-quoted decision the Court did not consider the registration of the deed of sale with the
Register of Deeds sufficient notice, most specially because the property involved was unregistered
land, as in the instant case. The Court took note of the fact that the registration of the deed of sale as
sufficient notice of a sale under the provision of Section 51 of Act No. 496 applies only to registered
lands and has no application whatsoever to a case where the property involved is, admittedly,
unregistered land.
Consistent with aforesaid ruling, in the interpretation of a related provision (Article 1623 of the
New Civil Code) this Court had stressed that written notice is indispensable, actual knowledge of the
sale acquired in some other manners by the redemptioner, notwithstanding. He or she is still entitled
to written notice, as exacted by the Code, to remove all uncertainty as to the sale, its terms and its
validity, and to quiet any doubt that the alienation is not definitive. The law not having provided for
any alternative, the method of notifications remains exclusive, though the Code does not prescribe
any particular form of written notice nor any distinctive method for written notification of
redemption (Conejero et al. v. Court of Appeals et al., 16 SCRA 775 [1966]; Etcuban v. Court of
Appeals, 148 SCRA 507 [1987]; Cabrera v. Villanueva, G.R. No. 75069, April 15, 1988).
Petitioners fault the appellate court in not awarding them damages, attorneys fees and costs.
After finding in favor of respondent spouses and against petitioners herein it is untenable for
petitioners to expect that the appellate court would award damages and attorneys fees and costs.
However as already discussed, petitioners have not lost their right to redeem, for in the absence of a
written notification of the sale by the vendors, the 30-day period has not even begun to run.
Petitioners clearly can claim attorneys fees for bad faith on the part of respondents, first, for refusing
redemption, and secondly for declaring the entire land as theirs, although they knew some heirs had
not sold their shares.

PREMISES CONSIDERED, the decision of the Court of Appeals is REVERSED and the decision
of the trial court is REINSTATED with the modification that petitioners be awarded damages,
attorneys fees and costs in the amount prayed for.
SO ORDERED.
Melencio-Herrera (Chairperson), Padilla, Sarmientoand Regalado, JJ., concur.
Decision reversed.
Note.No legal redemption on the sale of property for payment of debts of a deceased person.
Art. 1088 does not justify legal redemption, as it refers to sale of hereditary rights, not to specific
properties, for payment of debts of decedents estate. (Plan vs. Intermediate Appellate Court,135
SCRA 270.)

No. L-72873. May 28, 1987.

CARLOS ALONZO and CASIMIRA ALONZO, petitioners,vs. INTERMEDIATE

APPELLATE COURT and TECLA PADUA, respondents.
Statutes; We test a law by its results. A law should not be interpreted so as to cause an
injustice.But as has also been aptly observed, we test a law by its results; and likewise, we
may add, by its purposes. It is a cardinal rule that, in seeking the meaning of the law, the
first concern of the judge should be to discover in its provisions the intent of the lawmaker.
Unquestionably, the law should never be interpreted in such a way as to cause injustice as
this is never within the legislative intent. An indispensable part of that intent, in fact, for
we presume the good motives of the legislature, is to render justice.
Same; Law and justice are inseparable. Laws must be applied in consonance with
justice.Thus, we interpret and apply the law not independently of but in consonance with
justice. Law and justice are inseparable, and we must keep them so. To be sure, there are
some laws that, while generally valid, may seem arbitrary when applied in a particular case
because of its peculiar circumstances. In such a situation, we are not bound, because only of
our nature and functions, to apply them just the same, in slavish obedience to their
language. What we do instead is find a balance between the word and the will, that justice
may be done even as the law is obeyed.
Same; Judges must not unfeelingly yield like robots to the literal command of the law.
As judges, we are not automatons. We do not and must not unfeelingly apply the law as it is
worded, yielding like robots to the literal command without regard to its cause and

consequence. "Courts are apt to err by sticking too closely to the words of a law," so we are
warned, by Justice Holmes again, "where these words import a policy that goes beyond
them." While we admittedly may not legislate, we nevertheless have the power to interpret
the law in such a way as to reflect the will of the legislature. While we may not read intothe
law a purpose that is not there, we nevertheless have the right to read out of it the reason
for its enactment. In doing so, we defer not to "the letter that killeth" but to "the spirit that
vivifieth," to give effect to the lawmaker's will.
Same; Property; Prescription; Succession; Redemption; Where co-heirs filed action for
redemption of co-heir's sold share only after thirteen years had elapsed from the sale, they
are deemed to have been actually informed thereof sometime during those years although no
written notice of sale was given to them.While we do not here declare that this period
started from the dates of such sales in 1963 and 1964, we do say that sometime between
those years and 1976, when the first complaint for redemption was filed, the other co-heirs
were actually informed of the sale and that thereafter the 30-day period started running
and ultimately expired. This could have happened any time during the interval of thirteen
years, when none of the co-heirs made a move to redeem the properties sold. By 1977, in
other words, when Tecla Padua filed her complaint, the right of redemption had already
been extinguished because the period for its exercise had alr eady expired.
Same; Same; Same; Same; Same; Judgments; The Court's deviation from the strict
letters of Art. 1088 NCC on giving of written notice to co-heirs of the sale of an heir's share is
not being abandoned. The ruling here should be deemed an exception due to peculiar
circumstances of this case.We realize that in arriving at our conclusion today, we are
deviating from the strict letter of the law, which the respondent court understandably
applied pursuant to existing jurisprudence. The said court acted properly as it had no
competence to reverse the doctrines laid down by this Court in the above-cited cases. In fact,
and this should be clearly stressed, we ourselves are not abandoning the De Conejero and
Buttle doctrines. What we are doing simply is adopting an exception to the general rule, in
view of the peculiar circumstances of this case.

PETITION to review the decision of the Intermediate Appellate Court.

The f acts are stated in the opinion of the Court.
Perpetuo L.B. Alonzo for petitioners.
Luis R. Reyes for private respondent.
CRUZ, J.:

The question is sometimes asked, in serious inquiry or in curious conjecture,

whether we are a court of law or a court of justice. Do we apply the law even if it is
unjust or do we administer justice even against the law? Thus queried, we do not
equivocate. The answer is that we do neither because we are a court both of law and
of justice. We apply the law with justice for that is our mission and purpose in the
scheme of our Republic. This case is an illustration.
Five brothers and sisters inherited in equal pro indivisoshares a parcel of land
registered in the name of their deceased parents under OCT No. 10977 of the
Registry of Deeds of Tarlac.
1

On March 15, 1963, one of them, Celestino Padua, transferred his undivided share
of the herein petitioners for the sum of P550.00 by way of absolute sale. One year
later, on April 22, 1964, Eustaquia Padua, his sister, sold her own share to the same
vendees, in an instrument denominated "Con Pacto de Retro Sale," for the sum of
P440.00.
2

By virtue of such agreements, the petitioners occupied, after the said sales, an
area corresponding to two-fifths of the said lot, representing the portions sold to
them. The vendees subsequently enclosed the same with a fence. In 1975, with their
consent, their son Eduardo Alonzo and his wife built a semi-concrete house on a
part of the enclosed area.
4

On February 25, 1976, Mariano Padua, one of the five coheirs, sought to redeem
the area sold to the spouses Alonzo, but his complaint was dismissed when it
appeared that he was an American citizen. On May 27, 1977, however, Tecla Padua,
another co-heir, filed her own complaint invoking the same right of redemption
claimed by her brother.
5

The trial court also dismiss this complaint, now on the ground that the right
had lapsed, not having been exercised within thirty days from notice of the sales in
1963 and 1964. Although there was no written notice, it was held
that actual knowledge of the sales by the co-heirs satisfied the requirement of the
law.
**

In truth, such actual notice as acquired by the co-heirs cannot be plausibly

denied. The other co-heirs, including Tecla Padua, lived on the same lot, which
consisted of only 604 square meters, including the portions sold to the

petitioners. Eustaquia herself, who had sold her portion, was staying in the same
house with her sister Tecla, who later claimed redemption. Moreover, the
petitioners and the private respondents were close friends and neighbors whose
children went to school together.
8

10

It is highly improbable that the other co-heirs were unaware of the sales and that
they thought, as they alleged, that the area occupied by the petitioners had merely
been mortgaged by Celestino and Eustaquia. In the circumstances just narrated, it
was impossible for Tecla not to know that the area occupied by the petitioners had
been purchased by them from the other co-heirs. Especially significant was the
erection thereon of the permanent semi-concrete structure by the petitioners' son,
which was done without objection on her part or of any of the other co-heirs.
The only real question in this case, therefore, is the correct interpretation and
application of the pertinent law as invoked, interestingly enough, by both the
petitioners and the private respondents. This is Article 1088 of the Civil Code,
providing as follows:
"Art. 1088. Should any of the heirs sell his hereditary rights to a stranger before the
partition, any or all of the co-heirs may be subrogated to the rights of the purchaser by
reimbursing him for the price of the sale, provided they do so within the period of one
month from the time they were notified in writing of the sale by the vendor."

In reversing the trial court, the respondent court declared that the notice required
by the said article was writtennotice and that actual notice would not suffice as a
substitute. Citing the same case of De Conejero v. Court of Appeals applied by the
trial court, the respondent court held that that decision, interpreting a like rule in
Article 1623, stressed the need for written notice although no particular form was
required.
***

11

Thus, according to Justice J.B.L. Reyes, who was the ponente of the Court,
furnishing the co-heirs with a copy of the deed of sale of the property subject to
redemption would satisfy the requirement for written notice. "So long, therefore, as
the latter (i.e., the redemptioner) is informed in writing of the sale and the
particulars thereof," he declared, "the thirty days for redemption start running."
In the earlier decision of Butte v. Uy, the Court, speaking through the same
learned jurist, emphasized that the written notice should be given by the vendor and
12

not the vendees, conformably to a similar requirement under Article 1623, reading
as follows:
" Art. 1623. The right of legal pre-emption or redemption shall not be exercised except
within thirty days from the notice in writing by the prospective vendor, or by the vendors, as
the case may be. The deed of sale shall not be recorded in the Registry of Property, unless
accompanied by an affidavit of the vendor that he has given written notice thereof to all
possible redemptioners.
"The right of redemption of co-owners excludes that of the adjoining owners."

As "it is thus apparent that the Philippine legislature in Article 1623 deliberately
selected a particular method of giving notice, and that notice must be deemed
exclusive," the Court held that notice given by the vendees and not thevendor would
not toll the running of the 30-day period.
The petition before us appears to be an illustration of the Holmes dictum that
"hard cases make bad laws" as the petitioners obviously cannot argue against the
fact that there was really no written notice given by the vendors to their co-heirs.
Strictly applied and interpreted, Article 1088 can lead to only one conclusion, to wit,
that in view of such deficiency, the 30day period for redemption had not begun to
run, much less expired in 1977.
But as has also been aptly observed, we test a law by its results; and likewise, we
may add, by its purposes. It is a cardinal rule that, in seeking the meaning of the
law, the first concern of the judge should be to discover in its provisions the intent of
the lawmaker. Unquestionably, the law should never be interpreted in such a way as
to cause injustice as this is never within the legislative intent. An indispensable
part of that intent, in fact, for we presume the good motives of the legislature, is to
render justice.
Thus, we interpret and apply the law not independently of but in consonance
with justice. Law and justice are inseparable, and we must keep them so. To be
sure, there are some laws that, while generally valid, may seem arbitrary when
applied in a particular case because of its peculiar circumstances. In such a
situation, we are not bound, because only of our nature and functions, to apply them
just the same, in slavish obedience to their language. What we do instead is find a

balance between the word and the will, that justice may be done even as the law is
obeyed.
As judges, we are not automatons. We do not and must not unfeelingly apply the
law as it is worded, yielding like robots to the literal command without regard to its
cause and consequence. "Courts are apt to err by sticking too closely to the words of
a law," so we are warned, by Justice Holmes again, "where these words import a
policy that goes beyond them." While we admittedly may not legislate, we
nevertheless have the power to interpret the law in such a way as to reflect the will
of the legislature. While we may not read into the law a purpose that is not there,
we nevertheless have the right to read out of it the reason for its enactment. In
doing so, we defer not to "the letter that killeth" but to "the spirit that vivifieth," to
give effect to the lawmaker's will.'
13

"The spirit, rather than the letter of a statute determines its construction, hence, a statute
must be read according to its spirit or intent. For what is within the spirit is within the
statute although it is not within the letter thereof, and that which is within the letter but
not within the spirit is not within the statute. Stated differently, a thing which is within the
intent of the lawmaker is as much within the statute as if within the letter; and a thing
which is within the letter of the statute is not within the statute unless within the intent of
the law makers."
14

In requiring written notice, Article 1088 seeks to ensure that the redemptioner is
properly notified of the sale and to indicate the date of such notice as the starting
time of the 30-day period of redemption. Considering the shortness of the period, it
is really necessary, as a general rule, to pinpoint the precise date it is supposed to
begin, to obviate any problem of alleged delays, sometimes consisting of only a day
or two.
The instant case presents no such problem because the right of redemption was
invoked not days but years after the sales were made in 1963 and 1964. The
complaint was filed by Tecla Padua in 1977, thirteen years after the first sale and
fourteen years after the second sale. The delay invoked by the petitioners extends to
more than a decade, assuming of course that there was a valid notice that tolled the
running of the period of redemption.
Was there a valid notice? Granting that the law requires the notice to be written,
would such notice be necessary in this case? Assuming there was a valid notice

although it was not in writing, would there be any question that the 30-day period
for redemption had expired long before the complaint was filed in 1977?
In the face of the established facts, we cannot accept the private respondents'
pretense that they were unaware of the sales made by their brother and sister in
1963 and 1964. By requiring written proof of such notice, we would be closing our
eyes to the obvious truth in favor of their palpably false claim of ignorance, thus
exalting the letter of the law over its purpose. The purpose is clear enough: to make
sure that the redemptioners are duly notified. We are satisfied that in this case the
other brothers and sisters were actually informed, although not in writing, of the
sales made in 1963 and 1964, and that such notice was sufficient.
Now, when did the 30-day period of redemption begin?
While we do not here declare that this period started from the dates of such sales
in 1963 and 1964, we do say that sometime between those years and 1976, when the
first complaint for redemption was filed, the other co-heirs were actually informed of
the sale and that thereafter the 30-day period started running and ultimately
expired. This could have happened any time during the interval of thirteen years,
when none of the co-heirs made a move to redeem the properties sold. By 1977, in
other words, when Tecla Padua filed her complaint, the right of redemption had
already been extinguished because the period f or its exercise had already expired.
The f ollowing doctrine is also worth noting:
"While the general rule is, that to charge a party with laches in the assertion of an alleged
right it is essential that he should have knowledge of the facts upon which he bases his
claim, yet if the circumstances were such as should have induced inquiry, and the means of
ascertaining the truth were readily available upon inquiry, but the party neglects to make
it, he will be chargeable with laches, the same as if he had known the facts. "
15

It was the perfectly natural thing for the co-heirs to wonder why the spouses Alonzo,
who were not among them, should enclose a portion of the inherited lot and build
thereon a house of strong materials. This definitely was not the act of a temporary
possessor or a mere mortgagee. This certainly looked like an act of ownership. Yet,
given this unseemly situation, none of the co-heirs saw fit to object or at least
inquire, to ascertain the facts, which were readily available. It took all

of thirteen years before one of them chose to claim the right of redemption, but then
it was already too late.
We realize that in arriving at our conclusion today, we are deviating from the
strict letter of the law, which the respondent court understandably applied pursuant
to existing jurisprudence. The said court acted properly as it had no competence to
reverse the doctrines laid down by this Court in the above-cited cases. In fact, and
this should be clearly stressed, we ourselves are not abandoning the De Conejero
and Buttle doctrines. What we are doing simply is adopting an exception to the
general rule, in view of the peculiar circumstances of this case.
The co-heirs in this case were undeniably informed of the sales although no
notice in writing was given them. And there is no doubt either that the 30-day
period began and ended during the 14 years between the sales in question and the
filing of the complaint for redemption in 1977, without the co-heirs exercising their
right ofredemption. These are the justifications for this exception.
More than twenty centuries ago, Justinian defined justice "as the constant and
perpetual wish to render every one his due." That wish continues to motivate this
Court when it assesses the facts and the law in every case brought to it for decision.
Justice is always an essential ingredient of its decisions. Thus when the facts
warrants, we interpret the law in a way that will render justice, presuming that it
was the intention of the lawmaker, to begin with, that the law be dispensed with
justice. So we have done in this case.
16

WHEREFORE, the petition is granted. The decision of the respondent court is

REVERSED and that of the trial court is reinstated, without any pronouncement as
to costs. It is so ordered.
Teehankee,
C.J., Yap, Narvasa, Melencio-Herrera,Gutierrez,
Jr., Paras, Gancayco, Padilla, Bidin, Sarmientoand Cortes, JJ., concur.
Fernan and Feliciano, JJ., on leave.
Petition granted.
o0o

_______________

G.R. No. 101522. May 28, 1993.

LEONARDO MARIANO, AVELINA TIGUE, LAZARO MARIANO, MERCEDES

SAN PEDRO, DIONISIA M. AQUINO, and JOSE N.T. AQUINO,
petitioners, vs. HON. COURT OF APPEALS, (Sixteenth Division), GRACE
GOSIENGFIAO, assisted by her husband CHARLIE GUILLEN; EMMA
GOSIENGFIAO, assisted by her husband GERMAN GALCOS; ESTER
GOSIENGFIAO, assisted by her husband AMADOR BITONA; FRANCISCO
GOSIENGFIAO, JR., NORMA GOSIENGFIAO, and PINKY ROSE GUENO,
respondents.
Civil Law; Property; Co-ownership; Sale of property owned in common; Right of
redemption; Notice required to be given to the co-owners of the sale to a stranger must be in
writing.Respondents have not lost their right to redeem, for in the absence of a written
notification of the sale by the vendors, the 30-day period has not even begun to run.
Same; Same; Same; Same; Same; Redemption by a co-owner inures to the benefit of all
the other co-owners.Admittedly, as the property in question was mortgaged by the
decedent, a co-ownership existed among the heirs during the period given by law to redeem
the foreclosed property. Redemption of the whole property by a co-owner does not vest in
him sole ownership over said property but will inure to the benefit of all co-owners. In other
words, it will not put an end to the existing state of co-ownership. Redemption is not a mode
of terminating a co-ownership.

Same; Same; Same; Same; Same; Consignation; It is not necessary when tender of
payment was made to enforce or exercise a right and not to discharge an obligation.It has
been previously held that consignation is not required to preserve the right of repurchase as
a mere tender of payment is enough if made on time as a basis for an action to compel the
vendee a retro to resell the property; no subsequent consignation was necessary to entitle
private respondents to such reconveyance.

PETITION for review of the decision of the Court of Appeals.

The facts are stated in the opinion of the Court.
The Barristers Law Office for petitioners.
Simeon T. Agustin for private respondents.
NOCON, J.:
Before Us is a petition for review of the decision dated May 13, 1991 of the Court of
Appeals in CA-G.R. CV No. 13122, entitled Grace Gosiengfiao, et al. v. Leonardo
Mariano v. Amparo Gosiengfiao raising as issue the distinction between Article
1088 and Article 1620 of the Civil Code.
1

The Court of Appeals summarized the facts as follows:

It appears on record that the decedent Francisco Gosiengfiao is the registered owner of a
residential lot located at Ugac Sur, Tuguegarao, Cagayan, particularly described as follows,
to wit:
The eastern portion of Lot 1351, Tuguegarao Cadastre, and after its segregation now designated as
Lot 1351-A, Plan PSD-67391, with an area of 1,346 square meters.

and covered by Transfer Certificate of Title No. T-2416 recorded in the Register of Deeds
of Cagayan.
The lot in question was mortgaged by the decedent to the Rural Bank of Tuguegarao
(designated as Mortgagee bank, for brevity) on several occasions before the last, being on
March 9, 1956 and January 29, 1958.
On August 15, 1958, Francisco Gosiengfiao died intestate survived by his heirs, namely:
Third-Party Defendants: wife Antonia and Children Amparo, Carlos, Severino and herein

plaintiffs-appellants Grace, Emma, Ester, Francisco, Jr., Norma, Lina (represented by

daughter Pinky Rose), and Jacinto.
The loan being unpaid, the lot in dispute was foreclosed by the mortgagee bank and in
the foreclosure sale held on December 27, 1963, the same was awarded to the mortgagee
bank as the highest bidder.
On February 7, 1964, third-party defendant Amparo Gosiengfiao-Ibarra redeemed the
property by paying the amount of P1,347.89 and the balance of P423.35 was paid on
December 28, 1964 to the mortgagee bank.
On September 10, 1965, Antonia Gosiengfiao on her behalf and that of her minor
children Emma, Lina, Norma together with Carlos and Severino executed a Deed of
Assignment of the Right of Redemption in favor of Amparo G. Ibarra appearing in the
notarial register of Pedro (Laggui) as Doc. No. 257, Page No. 6, Book No. 8, Series of 1965.
On August 15, 1966, Amparo Gosiengfiao sold the entire property to defendant
Leonardo Mariano who subsequently established residence on the lot subject of this
controversy. It appears in the Deed of Sale dated August 15, 1966 that Amparo, Antonia,
Carlos and Severino were signatories thereto.
Sometime in 1982, plaintiff-appellant Grace Gosiengfiao learned of the sale of said
property by the third-party defendants. She went to the Barangay Captain and asked for a
confrontation with defendants Leonardo and Avelina Mariano to present her claim to the
said property.
On November 27, 1982, no settlement having been reached by the parties, the Barangay
Captain issued a certificate to file action.
On December 8, 1982, defendant Leonardo Mariano sold the same property to his
children Lazaro F. Mariano and Dionicia M. Aquino as evidenced by a Deed of Sale
notarized by Hilarion L. Aquino as Doc. No. 143, Page No. 19, Book No. V, Series of 1982.
On December 21, 1982, plaintiffs Grace Gosiengfiao, et al. filed a complaint for recovery
of possession and legal redemption with damages against defendants Leonardo and Avelina
Mariano. Plaintiffs alleged in their complaint that as co-heirs and co-owners of the lot in
question, they have the right to recover their respective shares in the said property as they
did not sell the same, and the right of redemption with regard to the shares of other coowners sold to the defendants.

Defendants in their answer alleged that the plaintiffs has (sic) no cause of action
against them as the money used to redeem the lot in question was solely from the personal
funds of third-party defendant Amparo Gosiengfiao-Ibarra, who consequently became the
sole owner of the said property and thus validly sold the entire property to the defendants,
and the fact that defendants had already sold the said property to their children, Lazaro
Mariano and Dionicia M. Aquino. Defendants further contend that even granting that the
plaintiffs are co-owners with the third-party defendants, their right of redemption had
already been barred by the Statute of Limitations under Article 1144 of the Civil Code, if
not by laches.
4

After trial on the merits, the Regional Trial Court of Cagayan, Branch I, rendered a
decision dated September 16, 1986, dismissing the complaint and stating that
respondents have no right of ownership or possession over the lot in question. The
trial court further said that when the subject property was foreclosed and sold at
public auction, the rights of the heirs were reduced to a mere right of redemption.
And when Amparo G. Ibarra redeemed the lot from the Rural Bank on her own
behalf and with her own money she became the sole owner of the property.
Respondents having failed to redeem the property from the bank or from Amparo
G. Ibarra, lost whatever rights they might have on the property.
5

The Court of Appeals in its questioned decision reversed and set aside the ruling
of the trial court and declared herein respondents as co-owners of the property in
the question. The Court of Appeals said:
The whole controversy in the case at bar revolves on the question of whether or not a coowner who redeems the whole property with her own personal funds becomes the sole
owner of said property and terminates the existing state of co-ownership.
Admittedly, as the property in question was mortgaged by the decedent, a co-ownership
existed among the heirs during the period given by law to redeem the foreclosed property.
Redemption of the whole property by a co-owner does not vest in him sole ownership over
said property but will inure to the benefit of all co-owners. In other words, it will not put an
end to the existing state of co-ownership. Redemption is not a mode of terminating a coownership.
x

In the case at bar, it is undisputed and supported by records, that third-party defendant
Amparo G. Ibarra redeemed the property in dispute within the one year redemption period.

Her redemption of the property, even granting that the money used was from her own
personal funds did not make her the exclusive owner of the mortgaged property owned in
common but inured to the benefit of all co-owners. It would have been otherwise if thirdparty defendant Amparo G. Ibarra purchased the said property from the mortgagee bank
(highest bidder in the foreclosure sale) after the redemption period had already expired and
after the mortgagee bank had consolidated it title in which case there would no longer be
any co-ownership to speak of.
6

The decision of the Court of Appeals is supported by a long line of case law which
states that a redemption by a co-owner within the period prescribed by law inures to
the benefit of all the other co-owners.
7

The main argument of petitioners in the case at bar is that the Court of Appeals
incorrectly applied Article 1620 of the Civil Code, instead of Article 1088 of the
same code which governs legal redemption by co-heirs since the lot in question,
which forms part of the intestate estate of the late Francisco Gosiengfiao, was never
the subject of partition or distribution among the heirs, thus, private respondents
and third-party defendants had not ceased to be co-heirs.
On that premise, petitioners further contend that the right of legal redemption
was not timely exercised by the private respondents, since Article 1088 prescribes
that the same must be done within the period of one month from the time they were
notified in writing of the sale by the vendor.
According to Tolentino, the fine distinction between Article 1088 and Article 1620
is that when the sale consists of an interest in some particular property or
properties of the inheritance, the right of redemption that arises in favor of the
other co-heirs is that recognized in Article 1620. On the other hand, if the sale is the
hereditary right itself, fully or in part, in the abstract sense, without specifying any
particular object, the right recognized in Article 1088 exists.
8

Petitioners allege that upon the facts and circumstances of the present case,
respondents failed to exercise their right of legal redemption during the period
provided by law, citing as authority the case of Conejero, et al., v. Court of Appeals,
et al. wherein the Court adopted the principle that the giving of a copy of a deed is
equivalent to the notice as required by law in legal redemption.
9

We do not dispute the principle laid down in theConejero case. However, the facts
in the said case are not four square with the facts of the present case.
In Conejero,redemptioner Enrique Conejero was shown and given a copy of the deed
of sale of the subject property. The Court in that case stated that the furnishing of a
copy of the deed was equivalent to the giving of a written notice required by law.
10

The records of the present petition, however, show no written notice of the sale
being given whatsoever to private respondents. Although, petitioners allege that
sometime on October 31, 1982 private respondent, Grace Gosiengfiao was given a
copy of the questioned deed of sale and shown a copy of the document at the Office of
the Barangay Captain sometime November 18, 1982, this was not supported by the
evidence presented. On the contrary, respondent, Grace Gosiengfiao, in her
testimony, declared as follows:

Q When you went back to the residence of Atty. Pedro

Laggui were you able to see him?
A Yes, I did.
Q When you saw him, what did you tell?
A I asked him about the Deed of Sale which Mrs. Aquino had
told me and he also showed me a Deed of Sale. I went over
the Deed of Sale and I asked Atty. Laggui about this and he
mentioned here about the names of the legal heirs. I asked
why my name is not included and I was never informed in
writing because I would like to claim and he told me to
better consult my own attorney.
A And did you go?
A Yes, I did.
Q What kind of copy or document is that?

A It is a deed of sale signed by my mother, sister Amparo and

my brothers.
Q If shown to you the copy of the Deed of Sale will you be
able to identify it?
A Yes, sir.

11

Thereafter, Grace Gosiengfiao explicitly stated that she was never given a copy of
the said Deed of Sale.

Q Where did Don Mariano, Dr. Mariano and you see each
other?
A In the house of Brgy. Captain Antonio Bassig.
Q What transpired in the house of the Brgy. Captain when
you saw each other there?
A Brgy. Captain Bassig informed my intention of claiming
the lot and I also informed him about the Deed of Sale that
was not signed by me since it is mine it is already sold and
I was never informed in writing about it. I am a legal heir
and I have also the right to claim.
Q And what was the reply of Don Mariano and Dr. Mariano
to the information given to them by Brgy. Captain Bassig
regarding your claim?
A He insisted that the lot is already his because of the Deed
of Sale. I asked for the exact copy so that I could show to
him that I did not sign and he said he does not have a
copy.
12

The above testimony was never refuted by Dr. Mariano who was present before
Brgy. Captain Bassig.
The requirement of a written notice has long been settled as early as in the case
of Castillo v. Samonte, where this Court quoted the ruling in Hernaez v. Hernaez,32
Phil., 214, thus:
13

Both the letter and spirit of the New Civil Code argue against any attempt to widen the
scope of the notice specified in Article 1088 by including therein any other kind of notice,
such as verbal or by registration. If the intention of the law had been to include verbal
notice or any other means of information as sufficient to give the effect of this notice, then
there would have been no necessity or reasons to specify in Article 1088 of the New Civil
Code that the said notice be made in writing for, under the old law, a verbal notice or
information was sufficient
14

Moreover, petitioners themselves adopted in their argument respondents allegation

in their complaint that sometime on October, 1982 they sought the redemption of
the property from spouses Leonardo Mariano and Avelina Tigue, by tendering the
repurchase money of P12,000.00, which the spouses rejected. Consequently, private
respondents exercised their right of redemption at the first opportunity they have by
tendering the repurchase price to petitioners. The complaint they filed before the
Barangay Captain and then to the Regional Trial Court was necessary to assert
their rights. As we learned in the case of Castillo, supra:
15

It would seem clear from the above that the reimbursement to the purchaser within the
period of one month from the notice in writing is a requisite or condition precedent to the
exercise of the right of legal redemption; the bringing of an action in court is the remedy to
enforce that right in case the purchaser refuses the redemption. The first must be done
within the month-period; the second within the prescriptive period provided in the Statute
of Limitation.
16

The ruling in Castillo v. Samonte, supra, was reiterated in the case of Garcia v.
Calaliman, where We also discussed the reason for the requirement of the written
notice. We said:
Consistent with aforesaid ruling, in the interpretation of a related provision (Article 1623
of the New Civil Code) this Court has stressed that written notice is indispensable, actual
knowledge of the sale acquired in some other manners by the redemptioner,
notwithstanding. He or she is still entitled to written notice, as exacted by the code to

remove all uncertainty as to the sale, its terms and its validity, and to quiet any doubt that
the alienation is not definitive. The law not having provided for any alternative, the method
of notifications remains exclusive, though the Code does not prescribe any particular form of
written notice nor any distinctive method for written notification of redemption (Conejero et
al. v. Court of Appeals et al., 16 SCRA 775 [1966]; Etcuban v. Court of Appeals,148 SCRA
507 [1987]; Cabrera v. Villanueva, G.R. No. 75069, April 15, 1988). (Italics, ours)
17

We likewise do not find merit in petitioners position that private respondents could
not have validly effected redemption due to their failure to consign in court the full
redemption price after the tender thereof was rejected by the petitioners.
Consignation is not necessary, because the tender of payment was not made to
discharge an obligation, but to enforce or exercise a right. It has been previously
held that consignation is not required to preserve the right of repurchase as a mere
tender of payment is enough if made on time as a basis for an action to compel the
vendee a retro to resell the property; no subsequent consignation was necessary to
entitle private respondents to such reconveyance.
18

Premises considered, respondents have not lost their right to redeem, for in the
absence of a written notification of the sale by the vendors, the 30-day period has
not even begun to run.
WHEREFORE, the decision of the Court of Appeals is hereby AFFIRMED. Cost
against petitioners.
SO ORDERED.
Narvasa (C.J., Chairman), Padilla and Regalado, JJ., concur.
Decision affirmed.
Note.Reconveyance being real action over immovable prescribes after thirty
(30) years (Lindain vs. Court of Appeals, 212 SCRA 425).
o0o
No. L-79958. October 28, 1988.

EMILIANA BAUTISTA, as Heir of the late MANUEL BAUTISTA and

EVANGELINE BAUTISTA, petitioners,vs. HON. JUSTICES CAROLINA C.

GRIO-AQUINO, MANUEL T. REYES, AND JAIME M. LANTIN, in their capacity

as Justices of the Special First Division of the Court of Appeals, HON. PEDRO JL.
BAUTISTA, in his capacity as Presiding Judge of the Court of First Instance of
Rizal, Branch III, Pasay City, MANOLITO BAUTISTA, BENJAMIN DE GUZMAN,
BETTY N. BAUTISTA alias BEATRIZ BAUTISTA, NELIA N. BAUTISTA, GLORIA
N. BAUTISTA, CLARITA N. BAUTISTA and ROSALINA BAUTISTA, respondents.
Remedial Law; Special Proceeding; Extrajudicial Partition;The finding that the
signature of the deceased petitioner in the deed of extrajudicial partition is authentic, is
correct, and can no longer be questioned before the Supreme Court.The findings of facts of
both the trial court and the respondent Appellate Court that the signature of Manuel
Bautista in the questioned Deed of Extrajudicial Partition is authentic, as examined by the
NBI, can no longer be questioned in this proceeding. Nevertheless, even granting that the
signature of Manuel Baustista in the questioned Extrajudicial Deed of Partition is genuine,
an examination of the document based on admitted and proven facts renders the document
fatally defective.
Same; Same; Same; An extrajudicial settlement of the estate applies only to the estate
left by the decedent; Property that does not belong to the decedents estate cannot be the
subject matter of an extrajudicial partition.Under Section 1, Rule 74 of the Rules of Court
an extrajudicial settlement of the Estate applies only to the estate left by the decedent who
died without a will, and with no creditors, and the heirs are all of age or the minors are
represented by their judicial or legal representatives. If the property does not belong to the
estate of the decedent certainly it cannot be the subject matter of an extrajudicial partition.
Same; Same; Same; The deed of extrajudicial partition is void ab initio for including in
the partition property which does not pertain to the estate of the deceased and which deprives
the lawful owner thereof of his property without due process of law.As the subject property
does not belong to the estate of Juliana Nojadera, the Deed of Extrajudicial Partition,
is void ab initio being contrary to law. To include in an extrajudicial partition property
which does not pertain to the estate of the deceased would be to deprive the lawful owner
thereof of his property without due process of law. Only property of the estate of the
decedent which is transmitted by succession can be the lawful subject matter of an
extrajudicial partition. In this case, the said partition obviously prejudices the right of
Manuel Bautista as exclusive owner of the property.
Same; Same; Same; Preterition; The partition is also void as it effectively resulted in the
preterition of the right of the compulsory heir of the deceased; The preterition was attended
with bad faith.The said partition also effectively resulted in the preterition of the right of
Evangeline Bautista as a compulsory heir of Manuel Bautista, daughter of the latter by his

second marriage. It is difficult to believe that Manuel Bautista would wittingly overlook and
ignore the right of her daughter Evangeline to share in the said property. It is not
surprising that he denied signing the said document. Moreover, private respondents knew
Evangeline Bautista who is their half-sister to be a compulsory heir. The court finds that
her preterition was attended with bad faith hence the said partition must be rescinded.
Same; Same; Same; An extrajudicial partition cannot constitute a partition of the
property during the lifetime of its owner; Partition of future inheritance is prohibited by law.
Moreover, such extrajudicial partition cannot constitute a partition of the property during
the lifetime of its owner, Manuel Bautista. Partition of future inheritance is prohibited by
law.
Same; Same; Same; As the extrajudicial partition is null and void ab initio, all
subsequent transactions involving the property between and among the private respondents
are also null and void.As said Extrajudicial Partition dated December 22, 1966, of
property belonging exclusively to petitioner Manuel Bautista, is null and void ab initio it
follows that all subsequent transactions involving the same property between and among
the private respondents are also null and void.
Same; Same; Same; Prescription; Petitioners right to sue their co-owners for partition of
the property is imprescriptible.Prescription cannot be invoked in this case as the
petitioners right to sue their co-owners for partition of the property is imprescriptible. And
even assuming that the present action may prescribe as ruled by the respondent court,
petitioners Emiliana Bautista and Evangeline Bautista who are not parties to the said
instrument asserted that they discovered the same only soon before they filed the complaint
in court. Certainly, the action has not prescribed.

PETITION to review the decision of the Court of Appeals. Grio-Aquino, J.

The facts are stated in the opinion of the Court.
Roberto M. Mendoza for petitioners.
Florante R. Mendoza for respondents.
GANCAYCO, J.:
Can the property of the surviving husband be the subject of an extrajudicial
partition of the estate of the deceased wife?

This is the singular issue in this petition.

In Civil Case No. 4033-P, petitioners instituted an action in the Court of First
Instance of Rizal to declare the deed of extra-judicial partition, deed of absolute
sale, Transfer Certificates of Title Nos. 14182, 14186 and 15665 all of Registry of
Deeds of Pasay City and Tax Declaration No. 5147, null and void.
On January 6, 1976, the parties submitted an Agreed Stipulation of Facts dated
December 15, 1975:
1. 1.That both parties admit that the land in question was registered in the name of
petitioner Manuel Bautista under T.C.T No. 2210, and the latter inherited this land
from his father, Mariano Bautista;
2. 2.Both petitioners and private respondents admit that on Dec. 22, 1966, a Deed of
Extrajudicial Partition was executed. Private respondents were signatories to the
deed, and the signature of petitioner Manuel Bautista was supposed to appear in
that document, although petitioner Manuel Bautista denied having signed that
Extrajudicial Partition;
3. 3.Both parties admit that upon registration of the Deed of Extrajudicial Partition,
T.C.T. No. 2210 was cancelled and in lieu thereof, T.C.T.-T-14182 was issued;
4. 4.The parties admit that the private respondents, with the exception of Manolito
Bautista, executed a Deed of Absolute Sale in favor of Manolito Bautista of that
property;

1. 5.Upon registration of the Deed of Sale, T.C.T. T-14182 was cancelled and in lieu
thereof, T.C.T. No. T-14186 was issued to Manolito Bautista;
2. 6.On August 7, 1969, Manolito Bautista executed a Deed of Sale in favor of the other
private respondents and upon registration of said Deed of Sale, T.C.T. Nos. T-15665,
T-15666, T-15667, T-15668, T-15669, T-15670, T-15671, were issued to private
respondents;
3. 7.Parties admit that petitioner Manuel Bautista married his second wife Emiliana
Tamayo;
4. 8.Parties admit that Manuel Bautista and his second wife, Emiliana Tamayo, had
only a child, Evangeline Bautista, born on April 29, 1949;

5. 9.That the property in question was the subject matter of extrajudicial partition of
property on December 22, 1966, among the heirs of the late Juliana Nojadera, the
first wife of Manuel Bautista;
6. 10.Manuel Bautista denied participation in the Extrajudicial Partition of Property;
7. 11.On August 1, 1974, all the parties agreed to submit to the NBI the questioned
signature of Manuel Bautista;
8. 12.That the NBI concluded that the questioned document was authentic. (Pp. 37-38,
rollo; pp. 2-3 of decision of respondent court)

In a decision of January 14, 1983, the trial court dismissed the complaint with costs
against plaintiffs. On appeal, a decision was rendered in due course by the Court of
Appeals on August 3, 1987, affirming the decision of the trial court.
1

Petitioner now seeks a review of said decision alleging the following errors
committed by the respondent court
1. A.THE FINDINGS OF FACTS OF PUBLIC RESPONDENTS ARE MANIFESTLY
ABSURD AND MISTAKEN;
2. B.PUBLIC RESPONDENTS AUTHORIZED THE EXTRA-JUDICIAL PARTITION
OF FUTURE INHERITANCE IN CLEAR VIOLATION OF ARTICLE 1347 OF
THE NEW CIVIL CODE:

1.

C.PUBLIC RESPONDENTS AUTHORIZED THE PRETERITION OF

PETITIONER EVANGELINE BAUTISTA IN VIOLATION OF THE LAW ON
SUCCESSION. (P. 7, petition for review; p. 8, rollo)

The petition is impressed with merit.

The findings of facts of both the trial court and the respondent Appellate Court
that the signature of Manuel Bautista in the questioned Deed of Extrajudicial
Partition is authentic, as examined by the NBI, can no longer be questioned in this
proceeding. Nevertheless, even granting that the signature of Manuel Bautista in
the questioned Extrajudicial Deed of Partition is genuine, an examination of the
document based on admitted and proven facts renders the document fatally
defective. The Extrajudicial partition was supposed to be a partition without court
intervention of the estate of the late Juliana Nojadera, first wife of Manuel

Bautista, constituting the subject property. In the same document Manuel Bautista
appears to have waived his right or share in the property in favor of private
respondents.
However, the property subject matter of said Extrajudicial partition does not
belong to the estate of Juliana Nojadera. It is the exclusive property of Manuel
Bautista who inherited the same from his father Mariano Bautista, which was
registered in his name under T.C.T. No. 2210.
Under Section 1, Rule 74 of the Rules of Court an extrajudieial settlement of the
Estate applies only to theestate left by the decedent who died without a will, and
with no creditors, and the heirs are all of age or the minors are represented by their
judicial or legal representatives. If the property does not belong to the estate of the
decedent certainly it cannot be the subject matter of an Extrajudicial partition.
As the subject property does not belong to the estate of Juliana Nojadera, the
Deed of Extrajudicial Partition, isvoid ab initio being contrary to law. To include in
an Extrajudicial partition property which does not pertain to the estate of the
deceased would be to deprive the lawful owner thereof of his property without due
process of law. Only property of the estate of the decedent which is transmitted by
succession can be the lawful subject matter of an Extrajudicial partition. In this
case, the said partition obviously prejudices the right of Manuel Bautista as
exclusive owner of the property.
The said partition also effectively resulted in the preterition of the right of
Evangeline Bautista as a compulsory heir of Manuel Bautista, daughter of the
latter by his second marriage. It is difficult to believe that Manuel Bautista would
wittingly overlook and ignore the right of her daughter Evangeline to share in the
said property. It is not surprising that he denied signing the said document.
Moreover, private respondents knew Evangeline Bautista who is their half-sister to
be a compulsory heir. The court finds that her preterition was attended with bad
faith hence the said partition must be rescinded.
2

The Court observes that after the execution of said extrajudicial partition and
issuance of the title in their names, private respondents except Manolito Bautista in
turn executed a deed of absolute sale of the property in favor of the latter in whose
name the title was also issued. And yet soon thereafter another deed of sale was

executed this time by Manolito Bautista selling back the same property to private
respondents in whose names the respective titles were thus subsequently issued.
This series of transactions between and among private respondents is an indication
of a clever scheme to place the property beyond the reach of those lawfully entitled
thereto. Moreover, such extrajudicial partition cannot constitute a partition of the
property during the lifetime of its owner, Manuel Bautista. Partition of future
inheritance is prohibited by law.
3

As said Extrajudicial Partition dated December 22, 1966, of property belonging

exclusively to petitioner Manuel Bautista, is null and void ab initio it follows that all
subsequent transactions involving the same property between and among the
private respondents are also null and void.
Prescription cannot be invoked in this case as the petitioners right to sue their
co-owners for partition of the property is imprescriptible. And even assuming that
the present action may prescribe as ruled by the respondent court, petitioners
Emiliana Bautista and Evangeline Bautista who are not parties to the said
instrument asserted that they discovered the same only soon before they filed the
complaint in court. Certainly the action has not prescribed.
4

WHEREFORE, AND IN CONSIDERATION OF THE FOREGOING, the Decision

dated August 3, 1987, of respondent Court of Appeals in CA-G.R. CV No. 03631 and
the Resolution of September 11, 1987, in the same case, are hereby reversed and set
aside; and a new one is rendered declaring the Deed of Extrajudicial Partition dated
December 22, 1966, as null and void ab initio, nullifying and cancelling T.C.T. Nos.
T-14182, T-14186, T-15665, T-15666, T-15667, T-15668, T-15669, T-15670, T-15671,
and Tax Declaration No. 5147, restoring and reviving T.C.T. No. 2210, in the name
of Manuel Bautista, with costs against private respondents. Let a copy of this
decision be furnished to the Registry of Deeds of Pasay City for implementation.
This decision is immediately executory.
SO ORDERED.
Narvasa, Cruz and Medialdea, JJ., concur.
Grio-Aquino, J., no part.

Decision and resolution reversed and set aside.

Note.It is necessary to determine whether extrajudicial partition is void or
merely voidable to settle the parties, conflicting claims. (Tandayan vs. Bacani, 117
SCRA 117.)
o0o