Complaince Succession

Wills and Succession 1
Case Digest
CHRIST THE KING COLLEGE

COLLEGE OF LAW
Magsaysay Street, Calbayog City, West Samar, Philippines
For Compliance
In
WILLS
AND
SUCCESSION
SUBMITTED TO:
JUDGE MYRNA CLEMENS
SUBMITTED BY :
HANS RUDOLF B. TAMIDLES

Case Digest
TABLE OF CONTENTS
FULL CASES
ABELLANA V BORROMEO 48
ACAIN V HON. INTERMEDIATE APPELLATE COURT 8 15
DANILO ALUAD V ZENAIDO ALUAD 15 - 25
CESAR ALVARADO V HON. RAMON G. GAVIOLA 25 - 30
RUBEN AUSTRIA V HON. ANDRES REYES 30 - 36
MARIA GERVACIO BLAS V ROSALINA SANTOS 36 51
ANACLETA ABELLANA V EUSEBIA ABELLANA 51 54
WENCESLA CACHO V JOHN G. UDAN 54 57
NENITA DE VERA SUROZA V JUDGE HONRADO 56 64
APOLONIO TABOADA V HON. AVELINO S. ROSAL 64 - 68
DIGESTED CASES
ABELLANA V BORROMEO 70
ACAIN V HON. INTERMEDIATE APPELLATE COURT 71 - 72
DANILO ALUAD V ZENAIDO ALUAD 73 - 74
CESAR ALVARADO V HON. RAMON G. GAVIOLA 75 - 76
RUBEN AUSTRIA V HON. ANDRES REYES 77 - 78
ANACLETA ABELLANA V EUSEBIA ABELLANA 79
MARIA GERVACIO BLAS V ROSALINA SANTOS 80 - 81
WENCESLA CACHO V JOHN G. UDAN 82-83
NENITA DE VERA SUROZA V JUDGE HONRADO 83-84
APOLONIO TABOADA V HON. AVELINO S. ROSAL 84 - 85

Case Digest
FULL TEXT CASES

Case Digest
IN RE SUMMARY SETTLEMENT OF THE ESTATE OF MELOIDA

FARRARIS.
FILOMENA ABELLANA DE BACAYO, Petitioner-Appellant, v.

GAUDENCIA FERRARIS DE BORROMEO, CATALINA FERRARIS DE
VILLEGAS, JUANITO FERRARIS and CONCHITA FERRARIS, Oppositors-
Appellees.
Mateo C. Bacalso and Cesar A. Kintanar for Petitioner-Appellant.
Gaudioso Sosmea and C. Tomakin for oppositors-appellees.
SYLLABUS
1. SUCCESSION; INTESTACY; COLLATERAL RELATIVES EXCLUDED BY

NEPHEWS AND NIECES. 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.
2. ID.; ID.; 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.)
3. ID.; ID.; 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).
4. ID.; ID.; 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.
DECISION
REYES, J.B.L., J.:

Case Digest
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 Abellana 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 nephew 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.
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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 or 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
Code, 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:jgc:chanrobles.com.ph
"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."cralaw virtua1aw library
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:jgc:chanrobles.com.ph
"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."cralaw virtua1aw
library
"ART. 1004. Should the only survivors be, brothers and sisters of the full
blood, they shall inherit in equal shares."cralaw virtua1aw library
"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 latter per stirpes."cralaw
virtua1aw library
"ART. 1009. Should there be neither brothers nor sisters, nor children of
brothers or sisters, the other collateral relatives shall succeed to the
estate."cralaw virtua1aw library
"The latter shall succeed without distinction of lines or preference among by

reason of relationship by the whole blood."cralaw virtua1aw library
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
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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:jgc:chanrobles.com.ph
"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."cralaw virtua1aw library
"ART. 954. Should there be neither brothers nor 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."cralaw virtua1aw library
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 only after 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."cralaw virtua1aw library
But Tolentino does not state that nephews and nieces concur with other
collaterals of equal degree. On the contrary, in the first paragraph of his
commentaries to Article 1009 (Vol. II, p. 439) (which counsel for appellants
had unethically omitted to quote), Tolentino expressly
states:jgc:chanrobles.com.ph
"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, persons
beyond the fifth degree are no longer considered as relatives, for
successional purposes.
"Article 1009 does not state any order of preference. However, 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
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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. and

Zaldivar, JJ., concur.
Bautista Angelo, J., took no part.
[G.R. No. 72706. October 27, 1987.]
CONSTANTINO C. ACAIN, Petitioner, v. HON. INTERMEDIATE

APPELLATE COURT (Third Special Cases Division), VIRGINIA A.
FERNANDEZ and ROSA DIONGSON, Respondents.
DECISION
PARAS, J.:
This is a petition for review on certiorari of the decision * of respondent Court

of Appeals in AC-G.R. SP No. 05744 promulgated 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:jgc:chanrobles.com.ph
"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."cralaw virtua1aw library
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:chanrob1es virtual 1aw library
Case Digest
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:jgc:chanrobles.com.ph
"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."cralaw
virtua1aw library
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.chanrobles law library
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).
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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):chanrob1es virtual 1aw library
(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;
(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;
(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;
(D) DICAT TESTATOR ET ERIT LEX. What the testator says will be the law;
(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.
(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
(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.chanrobles lawlibrary : rednad
Article 854 of the Civil Code provides:jgc:chanrobles.com.ph
"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."cralaw
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virtua1aw library
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 porcion libre (que) no
hubiese dispuesto en virtual de legado, mejora o donacion" (Manresa, as
cited in Nuguid v. Nuguid, supra, Maninang v. Court of Appeals, 114 SCRA
[19821). 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 heirs - without any
other testamentary disposition in the will - amounts 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
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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.chanrobles virtual lawlibrary
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:jgc:chanrobles.com.ph
"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
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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."cralaw virtua1aw library
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.chanrobles law library : red
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
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.
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.
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(Maninang v. Court of Appeals, supra).chanrobles.com : virtual law library
PREMISES CONSIDERED, the petition is hereby 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 and Cortes, JJ., concur.
Separate Opinions
MELENCIO-HERRERA, J., concurring:chanrob1es virtual 1aw library
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:jgc:chanrobles.com.ph
"1. The heir omitted is a forced heir (in the direct line);
"2. The omission is by mistake or thru an oversight;
"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.chanrobles virtualawlibrary
chanrobles.com:chanrobles.com.ph
"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."
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(III Tolentino, Civil Code, 1973 Edition, pp. 174-175).
In the case at bar, there seems to have been mistake or inadvertence in the
omission of the adopted daughter, hence, my concurrence in the result that
total intestacy ensued.
G.R No 176943
DANILO ALUAD, LEONORA ALUAD, DIVINA ALUAD, PROSPERO
ALUAD, and CONNIE ALUAD, Petitioners,
VS
ZENAIDO ALUAD, Respondent
DECISION
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.
On November 14, 1981, Matilde executed a document entitled Deed of
Donation of Real Property Inter Vivos (Deed of Donation) in favor of
petitioners mother Maria covering 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
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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)
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.
Subsequently or on January 14, 1992, Matilde executed a last will and
testament, 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.
On August 21, 1995, Marias heirs-herein petitioners filed before the
Regional Trial Court (RTC) of Roxas City a Complaint, 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[.]
To the complaint respondent alleged in his Answer.

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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)
Petitioners later filed a Motion for Leave to Amend Complaint Already
Filed to Conform to Evidence to which it annexed an Amended
Complaint 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.
Respondent filed an Amended Answer 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; 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.
The trial court, by Decision 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:
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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.
On petitioners motion, the trial court directed the issuance of a writ of
execution pending appeal. Possession of the subject lots appears to have in
fact been taken by petitioners.
By Decision 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:

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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.

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SO ORDERED. (Emphasis in the

original; underscoring supplied)
Their Motion for Reconsideration having been denied, petitioners filed
the present Petition for Review, contending that the Court of Appeals erred
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.
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 before the death of the transferor; or what
amounts to the same thing, that the transferor should retain
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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 transferor should

survive the transferee. (Emphasis and underscoring
supplied)
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.
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.
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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? (Underscoring supplied)
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 as inter vivos.
Petitioners arguments are bereft of merit.[

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)
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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.
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. 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
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
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signatures on the attestation clause. (Emphasis and

underscoring supplied)
Furthermore, 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.
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.
Petitioners nevertheless argue that assuming that the donation of Lot
No. 674 in favor of their mother is indeed mortis 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.
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
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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.
WHEREFORE, the petition is DENIED.
SO ORDERED.
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.
DECISION
BELLOSILLO, J.:
Before us is an appeal from the Decision dated 11 April 1986[1] of the First
Civil Cases Division of the then Intermediate Appellate Court, now Court of
Appeals, which affirmed the Order dated 27 June 1983[2] of the Regional Trial
Court of Sta. Cruz, Laguna, admitting to probate the last will and testament[3]
with codicil[4] of the late Brigido Alvarado.
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 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 eight-paged document, read the same aloud in the
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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.[5]
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 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
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executed? If so, was the double-reading 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),[6] the
contents of which were interpreted in laymans terms by Dr. Ruperto Roasa,
whose expertise was admitted by private respondent.[7] 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.[8]
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.[9] Since the
testator was still capable of reading at that time, the court a quo concluded
that Art. 808 need not be complied with.
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,[10] defective,[11] or blurred[12] vision making it
necessary for private respondent to do the actual reading for him.
The following pronouncement in Garcia vs. Vasquez[13] provides an insight

into the scope of the term blindness as used in Art. 808, to wit:
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
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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
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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.[16] 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.
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 in Abangan v. Abangan,[18] to wit:
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 (underscoring 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
Case Digest
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.
G.R. 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-SALONGA Respondents.
Salonga, Ordoez, Yap, Sicat and Associates for petitioners.
Ruben Austria for himself and co-petitioners.
De los Santos, De los Santos and De los Santos for respondent Perfecto
Cruz.
Villareal, Almacen, Navarra and 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, ante
mortem, of her last will and testament. The probate was opposed by the
present petitioners Ruben Austria, Consuelo Austria-Benta 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.chanroblesvirtualawlibrarychanrobles virtual law
library
The bulk of the estate of Basilia, admittedly, was destined under the will to
pass on to the respondents Perfecto Cruz, Benita Cruz-Meez, Isagani Cruz,
Alberto Cruz, and Luz Cruz-Salonga, all of whom had been assumed and
declared by Basilia as her own legally adopted
children.chanroblesvirtualawlibrarychanrobles virtual law library
Case Digest
On April 23, 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 decedent's
will, notwithstanding the blocking attempt pursued by the petitioner Ruben
Austria.chanroblesvirtualawlibrarychanrobles virtual law library
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 succeed as
heirs.chanroblesvirtualawlibrarychanrobles virtual law library
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."chanrobles virtual law
library
In the meantime, the contending sides 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.I. 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.chanroblesvirtualawlibrarychanrobles virtual law library
On February 6, 1963, more than three years after they were allowed to
intervene, the petitioners Ruben Austria, let 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-Meez 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.chanroblesvirtualawlibrarychanrobles virtual law library
On March 4, 1963, the lower court heard the respondent Benita's motion. Both
sides subsequently submitted their respective memoranda, and finally, the
lower court issued an order on June 4, 1963, delimiting the petitioners'
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intervention to the properties of the deceased which were not disposed of in

the will.chanroblesvirtualawlibrarychanrobles virtual law library
The petitioners moved the lower court to reconsider this latest order, eliciting
thereby an opposition, from the respondents. On October 25, 1963 the same
court denied the petitioners' motion for
reconsideration.chanroblesvirtualawlibrarychanrobles virtual law library
A second motion for reconsideration which set off a long exchange of

memoranda from both sides, was summarily denied on April 21,
1964.chanroblesvirtualawlibrarychanrobles virtual law library
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 decedent's
testamentary dispositions.chanroblesvirtualawlibrarychanrobles virtual law
library
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 concededly the nearest surviving
blood relatives of the decedent. On the other side are the respondents
brothers and sisters, Perfecto Cruz, Benita Cruz-Meez, 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 Basilia's last will - immaculate in its
extrinsic validity since it bears the imprimatur of duly conducted probate
proceedings.chanroblesvirtualawlibrarychanrobles virtual law library
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 Basilia's 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.chanroblesvirtualawlibrarychanrobles virtual law library
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
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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.chanroblesvirtualawlibrarychanrobles virtual law library
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 decedent's 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 adoption of the same heirs by
the decedent is false.chanroblesvirtualawlibrarychanrobles virtual law library
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 testator
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 called the
attention of the lower court and this Court to the following pertinent portions of
the will of the deceased which recite:chanrobles virtual law library
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 apelyidong
Cruz.chanroblesvirtualawlibrarychanrobles virtual law library
xxx xxx xxxchanrobles virtual law library
Kung ako ay bawian ng Dios ng buhay, ay aking ipinamamana ang aking mga
ari-ariang maiiwan, sa kaparaanang sumusunod:chanrobles virtual law library
A.-Aking ipinamamana sa aking nabanggit na limang anak na sina Perfecto,

Alberto, Luz, Benita at Isagani, na pawang may apelyidong Cruz, na
parepareho ang kaparti ng bawa't isa at walang lamangan (en partes iguales),
bilang kanilang sapilitang mana (legiti[ma]), ang kalahati 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 ng testamentong ito, ang
kalahati 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 ng ilang lagay na lupa na nasa Tinejeros, Malabon, Rizal, na aking
namana sa yumao kong kapatid na si Fausto Austria.
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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 al. as the latter's legitime. The petitioners further contend that had the
deceased known the adoption to be spurious, she would not have instituted
the respondents at all - the 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?chanrobles virtual law library
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.chanroblesvirtualawlibrarychanrobles virtual law library
The petitioners would have us imply, from the use of the terms, "sapilitang
tagapagmana" (compulsory heirs) and "sapilitang mana" (legitime), that the
impelling reason or cause for the institution of the respondents was the
testatrix's 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 decedent's 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.chanroblesvirtualawlibrarychanrobles virtual law library
And even if we should accept the petitioners' theory that the decedent
instituted the respondents Perfecto Cruz, et al. solely because she believed
that the law commanded her to do so, on the false assumption that her
adoption of these respondents was valid, still such institution must
stand.chanroblesvirtualawlibrarychanrobles virtual law library
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 testator clearly would not have made the
institution if he 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
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that she was mistaken in treating these heirs as her legally adopted children?
Or would she have instituted them nonetheless?chanrobles virtual law library
The decedent's will, which alone should provide the answer, is mute on this
point or at best is vague and uncertain. The phrases, "mga sapilitang
tagapagmana" and "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
disposicion) which largely favored the respondent Perfecto Cruz, the latter's
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 testate by intestacy - a result
which would subvert the clear wishes of the
decedent.chanroblesvirtualawlibrarychanrobles virtual law library
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." 1chanrobles virtual law library
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,2 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.3 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.4chanrobles virtual law library
At all events, the legality of the adoption of the 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.5chanrobles virtual law library
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 first - an 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
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and justices.6 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.7 chanrobles virtual law library
ACCORDINGLY, the present petition is denied, at petitioners cost.
G.R. No. L-14070 March 29, 1961
MARIA GERVACIO BLAS, MANUEL GERVACIO BLAS, LEONCIO

GERVACIO BLAS and LODA GERVACIO BLAS, plaintiffs-appellants,
vs.
ROSALINA SANTOS, in her capacity as Special Administratrix of the
Estate of the deceased MAXIMA SANTOS VDA. DE BLAS, in Sp. Proc.
No. 2524, Court of First Instance of Rizal, defendants-appellants. MARTA
GERVACIO BLAS and DR. JOSE CHIVI, defendants-appellants.
Teofilo Sison and Nicanor Sison for plaintiffs-appellants.

De los Santos, Caluag, Pascal and Felizardo for defendants-appellees.
LABRADOR, J.:
This action was instituted by plaintiffs against the administration of the estate
of Maxima Santos, to secure a judicial declaration that one-half of the
properties left by Maxima Santos Vda. de Blas, the greater bulk of which are
set forth and described in the project of partition presented in the proceedings
for the administration of the estate of the deceased Simeon Blas, had been
promised by the deceased Maxima Santos to be delivered upon her death
and in her will to the plaintiffs, and requesting that the said properties so
promised be adjudicated to the plaintiffs. The complaint also prays for actual
damages in the amount of P50,000. (Record on Appeal, pp. 1-65.) The
alleged promise of the deceased Maxima Santos is contained in a document
executed by Maxima Santos on December 26, 1936 attached to the complaint
as Annex "H" and introduced at the trial as Exhibit "A". (Ibid., pp. 258-259.)
The complaint also alleges that the plaintiffs are entitled to inherit certain
properties enumerated in paragraph 3 thereof, situated in Malabon, Rizal and
Obando, Bulacan, but which properties have already been in included in the
inventory of the estate of the deceased Simeon Blas and evidently partitioned
and conveyed to his heirs in the proceedings for the administration of his
(Simeon Blas) estate.
Defendant, who is the administratrix of the estate of the deceased Maxima

Santos Vda. de Blas, filed an answer with a counterclaim, and later, an
amended answer and a counterclaim. The said amended answer admits the
allegations of the complaint as to her capacity as administratrix the death of
Simeon Blas on January 3, 1937; the fact that Simeon Blas and Marta Cruz
begot three children only one of whom, namely, Eulalio Blas, left legitimate
Case Digest
descendants; that Simeon Blas contracted a second marriage with Maxima

Santos on June 28, 1898. She denies for lack of sufficient information and
belief, knowledge edge of the first marriage of Simeon Blas to Marta Cruz, the
averment that Simeon Blas and Marta Cruz acquired properties situated in
Obando, Bulacan, that said properties were utilized as capital, etc. As special
defenses, she alleges that the properties of the spouses Blas and Santos had
been settled and liquidated in the project of partition of the estate of said
Simeon Blas; that pursuant to the project of partition, plaintiffs and some
defendants had already received the respective properties adjudicated to
them; that the plaintiffs and the defendants Marta Geracio and Jose Chivi are
estopped from impugning the validity of the project of partition of the estate of
the deceased Simeon Blas and from questioning the ownership in the
properties conveyed in the project of partition to Maxima Santos as her own
exclusive property; that the testament executed by Maxima Santos is valid,
the plain plaintiffs having no right to recover any portion of Maxima Santos'
estate now under administration by the court. A counterclaim for the amount
of P50,000 as damages is also included in the complaint, as also a cross-
claim against Marta Gervacio Blas and Jose Chivi.
Trial of the case was Conducted and, thereafter, the court, Hon. Gustave
Victoriano, presiding, rendered judgment dismissing the complaint, with costs
against plaintiff, and dismissing also the counterclaim and cross-claim
decision ,the plaintiffs filed by the defendants. From this district have
appealed to this Court.
The facts essential to an understanding of the issues involved in the case may
be briefly summarized as follows: Simeon Blas contracted a first marriage with
Marta Cruz sometime before 1898. They had three children, only one of
whom, Eulalio, left children, namely, Maria Gervacio Blas, one of the plaintiffs,
Marta Gervacio Blas, one of the defendants, and Lazaro Gervacio Blas.
Lazaro died in 1950, and is survived by three legitimate children who are
plaintiffs herein, namely, Manuel Gervacio Blas, Leoncio Gervacio Blas and
Loida Gervacio Blas. Marta Cruz died in 1898, and the following year, Simeon
Blas contracted a second marriage with Maxima Santos. At the time of this
second marriage, no liquidation of the properties required by Simeon Blas and
Marta Cruz was made. Three of the properties left are fishponds located in
Obando, Bulacan. Maxima Santos does not appear to have apported
properties to her marriage with Simeon Blas.
On December 26, 1936, only over a week before over a week before his
death on January 9, 1937, Simeon Blas executed a last will and testament. In
the said testament Simeon Blas makes the following declarations:
2. Sa panahon ng aking pangalawang asawa, MAXIMA SANTOS DE

BLAS, ay nagkaroon ako at nakatipon ng mga kayamanan (bienes) at
pag-aari (propriedades) na ang lahat ng lupa, palaisdaan at iba pang
pag-aari ay umaabot sa halagang ANIM NA RAAN PITONG PU'T
WALONG DAAN LIBO WALONG DAAN WALONG PUNG PISO
Case Digest
(678,880-00) sang-ayon sa mga halaga sa amillarimento (valor

Amillarado.)
II
1. Ang kalahati ng lahat ng aming pag-aari, matapos mabayaran ang

lahat ng aking o aming pag-kakautang na mag-asawa, kung mayroon
man, yayamang ang lahat ng ito ay kita sa loob ng matrimonio (bienes
ganaciales) ay bahagi ng para sa aking asawa, MAXIMA SANTOS DE
BLAS, sang-ayon sa batas. (Record on Appeal, pp. 250-251.)
The above testamentary provisions may be translated as follows:
2. During my second marriage with Maxima Santos de Blas, I

possessed and acquired wealth and properties, consisting of lands,
fishponds and other kinds of properties, the total assessed value of
which reached the amount P678,880.00.
II
1. One-half of our properties, after the payment of my and our

indebtedness, all these properties having been acquired during
marriage (conjugal properties), constitutes the share of my wife
Maxima Santos de Blas, according to the law.
At the time of the execution of said will, Andres Pascual a son-in-law of the
testator, and Avelina Pascual and others, were present. Andres Pascual had
married a descendant by the first marriage. The will was prepared by Andres
Pascual, with the help of his nephew Avelino Pascual. The testator asked
Andres Pascual to prepare a document which was presented in court as
Exhibit "A", thus:
Q Was there anybody who asked you to prepare this document?
A Don Simeon Blas asked me to prepare this document (referring to

Exhibit "A"), (t.s.n., Sarmiento to, P. 24).
The reason why the testator ordered the preparation of Exhibit "A" was
because the properties that the testator had acquired during his first marriage
with Marta Cruz had not been liquidated and were not separated from those
acquired during the second marriage. Pascual's testimony is as follows:
Q To whom do you refer with the word "they"?
A Simeon Blas and his first wife, Marta Cruz. When Marta Cruz died
they had not made a liquidation of their conjugal properties and so all
those properties were included all in the assets of the second marriage,
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and that is the reason why this document was prepared. (t.s.n.,
Sarmiento, p. 36.)
The above testimony is fully corroborated by that of Leoncio Gervacio, son-in-

law of Simeon Blas.
Q Please state to the Court?
A My children were claiming from their grandfather Simeon Blas the

properties left by their grandmother Marta Cruz in the year 1936.
Q And what happened with that claim of your children against

Simeon Blas regarding the assets or properties of the first marriage
that were left after the death of Marta Cruz in 1936?
A The claim was not pushed through because they reached into an
agreement whereby the parties Simeon Blas Maxima Santos, Maria
Gervacio Bias, Marta Gervacio Blas and Lazaro Gervacio Blas agreed
that Simeon Blas and Maxima Blas will give one-half of the estate of
Simeon Blas. (t.s.n., Sarmiento, pp. 143-144).
The document which was thus prepared and which is marked as Exhibit "A"
reads in Tagalog, thus:
MAUNAWA NG SINO MANG MAKABABASA:
Na akong si MAXIMA SANTOS DE BLAS, nasa hustong gulang, kasal

kay SIMEON BLAS, taga bayan ng Malabon, Rizal, Philippines, sa
pamamagitan ng kasulatang ito ay malaya kong ipinahahayag:
Na aking nabasa at naunawa ang testamento at huling kalooban na

nilagdaan ng aking asawa, SIMEON BLAS, at ipinahahayag ko sa
ilalim ng aking karangalan at sa harap ng aking asawa na igagalang at
pagpipitaganan ang lahat at bawa't isang bahagi ng nabanggit na
testamento at ipinangangako ko pa sa pamamagitan ng kasulatang ito
na ang lahat ng maiiwang pag-aari at kayamanan naming mag-asawa,
na nauukol at bahaging para sa akin sa paggawa ko naman ng aking
testamento ay ipagkakaloob ko ang kalahati () sa mga herederos at
legatarios o pinamamanahan ng aking nabanggit na asawa, SIMEON
BLAS, sa kaniyang testamento, na ako'y makapipili o makahihirang na
kahit kangino sa kanila ng aking pagbibigyan at pamamanahan sang-
ayon sa paggalang, paglilingkod, at pakikisama ng gagawin sa akin.
SA KATUNAYAN NG LAHAT NG ITO ay nilagdaan ko ang kasulatang

ito ngayon ika 26 ng Diciembre ng taong 1936, dito sa San Francisco
del Monte, San Juan, Rizal, Philippines. (Exh. "A", pp. 29-30
Appellant's brief).
(Fdo.) MAXIMA SANTOS DE BLAS

Case Digest
and which, translated into English, reads as follows:
KNOW ALL MEN BY THESE PRESENTS:
That I MAXIMA SANTOS DE BLAS, of legal age, married to SIMEON

BLAS, resident of Malabon, Rizal, Philippines, voluntarily state:
That I have read and knew the contents of the will signed by my
husband, SIMEON BLAS, (2) and I promise on my word of honor in the
presence of my husband that I will respect and obey all and every
disposition of said will (3) and furthermore, I promise in this document
that all the properties my husband and I will leave, the portion and
share corresponding to me when I make my will, I will give one-half ()
to the heirs and legatees or the beneficiaries named in the will of my
husband, (4) and that I can select or choose any of them, to whom I will
give depending upon the respect, service and treatment accorded to
me.
IN WITNESS WHEREOF, I signed this document this 26th day of

December, 1936 at San Francisco del Monte, San Juan, Rizal,
Philippines. (Exh. "A", pp. 30-31, Appellant's brief).
(Sgd.) MAXIMA SANTOS DE BLAS
The court below held that said Exhibit "A" has not created any right in favor of
plaintiffs which can serve as basis for the complaint; that neither can it be
considered as a valid and enforceable contract for lack of consideration and
because it deals with future inheritance. The court also declared that Exhibit
"A" is not a will because it does not comply with the requisites for the
execution of a will; nor could it be considered as a donation, etc.
Both the court below in its decision and the appellees in their brief before us,
argue vehemently that the heirs of Simeon Blas and his wife Marta Cruz can
no longer make any claim for the unliquidated conjugal properties acquired
during said first marriage, because the same were already included in the
mass of properties constituting the estate of the deceased Simeon Blas and in
the adjudications made by virtue of his will, and that the action to recover the
same has prescribed. This contention is correct. The descendants of Marta
Cruz can no longer claim the conjugal properties that she and her husband
may have required during their marriage although no liquidation of such
properties and delivery thereof to the heirs of Marta Cruz have been made, no
action to recover said propertied having been presented in the proceedings
for the settlement of the estate of Simeon Blas.
But the principal basis for the plaintiffs' action in the case at bar is the
document Exhibit "A". It is not disputed that this document was prepared at
the instance of Simeon Blas for the reason that the conjugal properties of me
on Blas for the reason his first marriage had not been liquidated; that it was
prepared at the same time as the will of Simeon Blas on December 26, 1936,
Case Digest
at the instance of the latter himself. It is also not disputed that the document
was signed by Maxima Santos and one copy thereof, which was presented in
court as Exhibit "A", was kept by plaintiffs' witness Andres Pascual.
Plaintiffs-appellants argue before us that Exhibit "A" is both a trust agreement

and a contract in the nature of a compromise to avoid litigation. Defendants-
appellees, in answer, claim that it is neither a trust agreement nor a
compromise a agreement. Considering that the properties of the first marriage
of Simeon Blas had not been liquidated when Simeon Blas executed his will
on December 26, 1936', and the further fact such properties where actually ,
and the further fact that included as conjugal properties acquired during the
second marriage, we find, as contended by plaintiffs-appellants that the
preparation and execution of Exhibit "A" was ordered by Simeon Blas
evidently to prevent his heirs by his first marriage from contesting his will and
demanding liquidation of the conjugal properties acquired during the first
marriage, and an accounting of the fruits and proceeds thereof from the time
of the death of his first wife.
Exhibit "A", therefore, appears to be the compromise defined in Article 1809 of

the Civil Code of Spain, in force at the time of the execution of Exhibit "A",
which provides as follows:
Compromise is a contract by which each of the parties in interest, by

giving, promising, or retaining something avoids the provocation of a
suitor terminates one which has already the provocation been
instituted. (Emphasis supplied.)
Exhibit "A" states that the maker (Maxima Santos) had read and knew the
contents of the will of her husband read and knew the contents of the will
Simeon Blas she was evidently referring to the declaration in the will(of
Simeon Blas) that his properties are conjugal properties and one-half thereof
belongs to her (Maxima Santos) as her share of the conjugal assets under the
law. The agreement or promise that Maxima Santos makes in Exhibit "A" is to
hold one-half of her said share in the conjugal assets in trust for the heirs and
legatees of her husband in his will, with the obligation of conveying the same
to such of his heirs or legatees as she may choose in her last will and
testament. It is to be noted that the conjugal properties referred to are those
that were actually existing at that time, December 26, 1936. Simeon Blas died
on January 9, 1937. On June 2, 1937, an inventory of the properties left by
him, all considered conjugal, was submitted by Maxima Santos herself as
administratrix of his estate. A list of said properties is found in Annex "E", the
complete inventory submitted by Maxima Santos Vda. de Blas, is
administratrix of the estate of her husband, dated March 10, 1939. The
properties which were given to Maxima Santos as her share in the conjugal
properties are also specified in the project of partition submitted by said
Maxima Santos herself on March 14, 1939. (Record on Appeal, pp. 195-241.)
Under Exhibit "A", therefore, Maxima Santos contracted the obligation and
promised to give one-half of the above indicated properties to the heirs and
legatees of Simeon Blas.
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Counsel for the defendant-appellee claims Exhibit "A" is a worthless piece of

paper because it is not a will nor a donation mortis causa nor a contract. As
we have in indicated above, it is a compromise and at the same time a
contract with a sufficient cause or consideration. It is also contended that it
deals with future inheritance. We do not think that Exhibit "A" is a contract on
future inheritance. it is an obligation or promise made by the maker to transmit
one-half of her share in the conjugal properties acquired with her husband,
which properties are stated or declared to be conjugal properties in the will of
the husband. The conjugal properties were in existence at the time of the
execution of Exhibit "A" on December 26, 1936. As a matter of fact, Maxima
Santos included these properties in her inventory of her husband's estate of
June 2, 1937. The promise does not refer to any properties that the maker
would inherit upon the death of her husband, because it is her share in the
conjugal assets. That the kind of agreement or promise contained in Exhibit
"A" is not void under Article 1271 of the old Civil Code, has been decided by
the Supreme Court of Spain in its decision of October 8, 19154, thus:
Que si bien el art. 1271 del Codigo civil dispone que sobre la
herenciafutura no se podra celebrar otros contratos que aquellos cuyo
objecto seapracticar entre vivos la division de un caudal, conforme al
articulo 1056, esta prohibicion noes aplicable al caso, porque la
obligacion que contrajoel recurr en contrato privado de otorgar
testamento e instituir heredera a su subrina de los bienes que adquirio
en virtud de herencia, procedentes desu finada consorte que le
quedasen sobrantes despues de pagar las deudas, y del ganacial que
se expresa, asi como de reconocer, ademas, con alguna cosaa otros
sobrinos, se refiere a bienes conocidos y determinados existentes
cuando tal compromisi se otorgo, y no a la universalidad de una
herencia que, sequn el art. 659 del citado Codigo civil, as determina a
muerte, constituyendola todos los bienes, derechos y obligaciones que
por ella no sehayan extinguido: ..." (Emphasis supplied.)
It will be noted that what is prohibited to be the subject matter of a contract

under Article 1271 of the Civil Code is "future inheritance." To
us future inheritance is any property or right not in existence or capable of
determination at the time of the contract, that a person may in the future
acquire by succession. The properties subject of the contract Exhibit "A" are
well defined properties, existing at the time of the agreement, which Simeon
Blas declares in his statement as belonging to his wife as her share in the
conjugal partnership. Certainly his wife's actual share in the conjugal
properties may not be considered as future inheritance because they were
actually in existence at the time Exhibit "A" was executed.
The trial court held that the plaintiffs-appellants in the case at bar are
concluded by the judgement rendered in the proceedings for the settlement of
the estate of Simeon Blas for the reason that the properties left by him
belonged to himself and his wife Maxima Santos; that the project of partition in
the said case, adjudicating to Maxima Santos one-half as her share in the
conjugal properties, is a bar to another action on the same subject matter,
Maxima Santos having become absolute owner of the said properties
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adjudicated in her favor. As already adverted to above, these contentions

would be correct if applied to the claim of the plaintiffs-appellants that said
properties were acquired with the first wife of Simeon Blas, Marta Cruz. But
the main ground upon which plaintiffs base their present action is the
document Exhibit "A", already fully considered above. As this private
document contains the express promise made by Maxima Santos to convey in
her testament, upon her death, one-half of the conjugal properties she would
receive as her share in the conjugal properties, the action to enforce the said
promise did not arise until and after her death when it was found that she did
not comply with her above-mentioned promise. (Art. 1969, old Civil Code.)
The argument that the failure of the plaintiffs-appellants herein to oppose the
project of partition in the settlement of the estate of Simeon Blas, especially
that portion of the project which assigned to Maxima Santos one-half of all the
conjugal properties bars their present action, is, therefore, devoid of merit. It
may be added that plaintiffs-appellants did not question the validity of the
project of partition precisely because of the promise made by Maxima Santos
in the compromise Exhibit "A"; they acquised in the approval of said project of
partition because they were relying on the promise made by Maxima Santos
in Exhibit "A", that she would transmit one-half of the conjugal properties that
she was going to receive as her share in the conjugal partnership upon her
death and in her will, to the heirs and legatees of her husband Simeon Blas.
Neither can the claim of prescription be considered in favor of the defendants.

The right of action arose at the time of the death of Maxima Santos on
October 5,1956, when she failed to comply with the promise made by her in
Exhibit "A". The plaintiffs-appellants immediately presented this action on
December 27, 1956, upon learning of such failure on the part of Maxima
Santos to comply with said promise. This defense is, therefore, also without
merit.
It is next contended by the defendant-appellee that Maxima Santos complied

with her above-mentioned promise, that Andres Pascual, Tomasa Avelino,
Justo Garcia, Ludovico Pimpin and Marta Gervacio Blas were given
substancial legacies in the will and testament of Maxima Santos. To
determine whether she had actually complied with the promise made in
Exhibit "A", there is herein set forth a list only of the fishponds and their
respective areas as contained in the list of properties she acquired as her
share in the conjugal partnership, which list includes, besides many ricelands
as well as residential lots, thus:
31. Paco, Obando, Bulacan 5.8396 has.

32. Pangjolo, Obando 3.5857 "
34. Batang Pirasuan, Lubao, 11.9515 "
Pampanga
30.2059 "
35. Calangian, Lubao, Pampanga
215.4325 "
38. Bakuling, Lubao, Pampanga
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39. Bakuling, Lubao, Pampanga 8.3763 "

23.0730 "
40. Bangkal, Sinubli
41. Tagulod, 6.8692 "
34.2779 "
44. Bangkal Pugad (a)
51.7919 "
(b)
(c) 2.5202 "
45. Magtapat Bangkal, Lubao, 18.0024 "
Pampanga (a)
(b) 7.3265 "
53.5180 "
(c)
159.0078 "
46. Pinanganakan, Lubao, Pampanga
34.5229 "
47. Emigdio Lingid, Lubao, Pampanga
80.5382 "
48. Propios, Lubao, Pampanga
49. Batang Mabuanbuan, Sexmoan, 43.3350 "
Pampanga
50. Binatang Mabuanbuan, Sexmoan,
Pampanga 3.5069 "
51. Sapang Magtua, Sexmoan, 56,8242 "
Pampanga
52. Kay Limpin, Sexmoan, Pampanga 5.0130 "
53. Calise Mabalumbum, Sexmoan, 23.8935 "
Pampanga
54. Messapinit Kineke, Sexmoan, 5.2972 "
Pampanga (a)
(b) 5.9230 "
(c) 1.4638 "
(d) 1.4638 "
(e) 2.8316 "
10.4412 "
(f)
(g) 3.9033 "
11.9263 "
(h)
(i) 6.0574 "
Case Digest
55. Dalang, Banga, Sexmoan, 23.3989 "

Pampanga
147.1242 "
62. Alaminos, Pangasinan
80. Mangasu Sexmoan, Pampanga 10.000 "
21.6435 "
81. Don Tomas, Sexmoan, Pampanga
16.0000
82. Matikling, Lubao, Pampanga "
1045.7863
Total area ............................... "
(See Record on Record,
pp. 195-241.)
In her will, Maxima Santos devised to Marta Gervacio Blas the 80-hectare
fishpond situated in Lubao, Pampanga. The fishpond devised is evidently that
designated as "Propios" in Lubao, Pampanga, item No. 8 in the list of
properties adjudicated to her in the project of partition. (Record on Appeal, p.
215.) Considering that the total area of the fishponds amount to 1045.7863
hectares, the 80 hectares devised to Marta Gervacio Blas is not even one-
tenth of the total area of the fishponds. Add to this the fact that in the will she
imposed upon Marta Gervacio Blas de Chivi an existing obligation on said
fishponds, namely, its lease in 1957 and the duty to pay out of the rentals
thereof an obligation to the Rehabilitation Finance Corporation RFC (Ibid., pp.
262-263.) Angelina Blas was given only a lot of 150 square meters in Hulong
Duhat, Malabon, Rizal, and Leony Blas, the sum of P300.00 (Ibid., p. 264.)
It is evident from a consideration of the above figures and facts that Maxima
Santos did not comply with her obligation to devise one-half of her conjugal
properties to the heirs and legatees of her husband. She does not state that
she had complied with such obligation in her will. If she intended to comply
therewith by giving some of the heirs of Simeon Blas the properties mentioned
above, the most that can be considered in her favor is to deduct the value of
said properties from the total amount of properties which she had undertaken
to convey upon her death.
All the issues in the pleadings of the parties and in their respective briefs,
have now been fully discussed and considered. Reiterating what we have
stated above, we declare that by Exhibit "A", a compromise to avoid litigation,
Maxima Santos promised to devise to the heirs and legatees of her husband
Simeon Blas, one-half of the properties she received as her share in the
conjugal partnership of herself and her husband, which share is specified in
the project of partition submitted by herself on March 14, 1939 in the
settlement of the estate of her husband, and which is found on pages 195 to
240 of the record on appeal and on pages 27 to 46 of the project of partition,
submitted by Maxima Santos herself before the Court of First Instance of
Rizal in Civil Case No. 6707, entitled "Testamentaria del Finado Don Simeon
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Blas, Maxima Santos Vda. de Bias, Administradora"; and that she failed to
comply with her aforementioned obligation. (Exhibit "A")
WHEREFORE, the judgment appealed from is hereby reversed and the

defendant-appellee, administratrix of the estate of Maxima Santos, is ordered
to convey and deliver one-half of the properties adjudicated o Maxima Santos
as her share in the conjugal properties in said Civil Case No. 6707, entitled
"Testamentaria del Finado Don Simeon Blas, Maxima Santos Vda. de Blas,
Administradora", to the heirs and the legatees of her husband Simeon Blas.
Considering that all said heirs and legatees, designated in the will of Simeon
Blas as the persons for whose benefit Exhibit "A" had been executed, have
not appeared in these proceedings, the record is hereby remanded to the
court below, with instructions that, after the conveyance of the properties
hereinabove ordered had been effected, the said heirs and legatees (of
Simeon Blas) file adversary pleadings to determine the participation of each
and every one of them in said properties. Costs against the defendant-
appellee Rosalina Santos.
Padilla, Parades and Dizon, JJ., concur.

Reyes, J.B.L. and Barrera, JJ., concur in a separate opinion.
Bengzon, C.J., reserves his vote.
Concepcion, J., took no part.
Separate Opinions
REYES, J.B.L., J., concurring:
I concur in the opinion of Mr. Justice Labrador, and would only add that the
doctrine in the decision of 8 October 1915 of the Supreme Court of Spain,
applied in the main opinion, is not a mere accident nor an isolated instance,
but one of a series of decisions reaffirming the legal proposition therein laid
down. Thus, the Presiding Justice Castan of the Spanish Tribunal Supremo,
in volume 3 of his Treaties on Civil Law (1951 Edition, page 344, footnote 2),
observes that:
(2) IA sentencia de 16 de mayo de 1940 declare que segun la doctrina

sentada por el Tribunal Supremo en sua fallos de 8 de Octubre de
1915 y 26 de Octubre de 1926 y por la Direction de los Registros en au
resolution de 19 de mayo de 1917, la prohibition contenida en el art.
1271 se refiere unica y exclusivamente a los paetos sobre la
universalidad de una heren cia que, segun el art. 659, se determine a
la muerte del cau sante constituyendola todos los bienes, derechos y
obligaciones que por ella no se hayan extinguido y no al pacto sobre
bienes conocidos y determinados, existentes cuando tal compromiso
se otorgo, en el dominio del cedente.
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And in a later decision of 25 April 1951, the Supreme Court of Spain once ore
insisted on the rule that a successional agreement concerning property
already owned by the grantor at the time the contract was perfected is not
banned by, Article 1271 of the Spanish Civil Code according to Article 1847 of
the Civil Code of the Philippines):
CONSIDERANDO: Que el tercer motive del recurso de doa M. G. G.,

y el sexto del formulado por doa D. G. G., hacen roferencia a la ultima
de las tres cuestiones que son ob jato del debate en ambos recurso
interpuestos esto es la dis cutida cesion que las hermanas senoras G.
G., hoy recurrentes, hicieron a doa C. A. de la mitad de los bienes
muebles e innuebles que recibiesen por herencia de doa M.
P., procedentes de la de doa M. A. P., antes N., consignada en
documents privado de fecha 2 de noviembre de 1929, firmado y
reconocida su autenticidad por las tres senoras interesa das, cuya
validez y eficacia es objeto de la cuarta pieza de los presentee autos
acumulados y si se examination con determiento el documento aludido
y el acto que en el se consigna habra de advertirse de modo notorio
que se halla afectado de vicio de nulidadporque su objeto son unos
bienes que clara mente se petpresa que han de entrar en el patrimonio
de las cendentes mediantes una transmission hereditaria, lo que
conatituye el pacto sobre herencia futura prohibido por el parrafo
segundo del articulo 1271 del Codigo Civil, ya que no se concreta
sobre bienes conocido y determinados, existentes en el del cedents
cuando el compromiso de otorgo, sino que se refiem a la universalidad
de que habrian de adra la muerte del causante sentido en el que
conforme a la jurisprudencia de esta Sala es de plena aplicacion la
norma a tiva antes citada, y al no haberio asi entendido la Sala de
instancia, ha incurrido en la infmccion de interpreter erro to y por ello
ha hecho aplicacion de indebida de dicho precepto y precede la
estimacion de los motivo que aprincipio se citan y que denuncian la
estimada infraccion, produciendo la casacion de la sentencia recurrida
en el extremo a que los dichos motives se refieren. (Sentencia 25 abril
1951) (Emphasis Supplied)
It can thus be seen that the constant authoritative in interpretation of the

prohibition against agreements involving future inheritance requires not only
that a future succession be contemplated but also that the subject matter of
the bargain should be either the universality or complex or mass of property
owned by the grantor at the time of his death, or else an aliquot portion
thereof. Castan, in his Treaties already mentioned, sums up the rulings in this
wise:
Por otra parte, se ha de entender: 1. Que la cesion oenajenacion de

los derechos hereditarios puede bacerse una vez falle cido el
causante, aunque no se haya entrado en possession matetrial de los
bienes 2. Que la prohibition legal se refiere solo a los contratos
concluidos sobre la herencia misma o alguna de sus cuotas, no sobre
objetos aislados que, eventualmente, hayan de adquirirse a virtud de la
herencia.
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It has been contended that the doctrine thus stated confuses future
inheritance (herencia futura) with future property (bienes futuros). This is a
misapprehension. In construing the term "future inheritance" as the contingent
universality or complex of property rights and obligations that are passed to
the heirs upon the death of the grantor, the rule advocated merely correlates
the prohibition against contracts over "future inheritance" with the definition of
"inheritance" given in Article 659 of the Spanish Civil Code, which is now
Article 776 of the Civil Code of the Philippines:
ART. 776. The inheritance includes all the property, rights and
obligations of a person which are not extinguished by his death.
The inheritance of a person may, and usually does, include not only property
that he already owns at a given time, but also his future property, that is to
say, the property that he may subsequently acquire. But it may include only
future property whenever he should dispose of the present property before he
dies. And future inheritance may include only property he already owns at any
given moment, if he should thereafter acquire no other property until his
death. In any case, the inheritance or estate cons of the totality of and
liabilities he holds at the time of his demise, and not what he at any other
time. If the questioned contract envisages all or a fraction of that contingent
mass, then it is a contract over herencia futurall otherwise it is not. The
statutory prohibition, in other words, is not so much concerned with the
process of transfer as with the subject matter of the bargain. It is addressed to
"future inheritance", not "future succession".
Of course, it can be said that every single item of property that a man should
hold at any given instant of his life may become a part of his inheritance if he
keeps it long enough. But is that mere possibility (or even probability)
sufficient to do upon a contract over an individual item of existing property the
outlaw brand of "contract over future inheritance"? If it should ever be, then no
agreement concerning present property can escape the legal ban. No
donation inter vivos, no reversionary clause, no borrowing of money, and no
alienation, not even a contract of sale (or other contract in praisenti for that
matter), with or without deferred delivery, will avoid the reproach that it
concerns or affects the grantor's "future inheritance". It is permissible to doubt
whether the law ever contemplated the sweeping away of the entire
contractual system so carefully regulated in the Code.
The restrictive interpretation given by the Spanish Supreme Court to the codal
prohibition of agreements involving future inheritance is justified not only by
the fact that the prohibition limits contractual freedom (and therefore, should
not be given extensive interpretation), but also because there is no real or
substantial difference between (1) an agreement whereby a person, for a
valuable consideration, agrees to bequeath some of the property he already
owns, and (2) a contract whereby he dispose of that property, subject to the
condition that he will be entitled to its usufruct until the time he dies. The court
has repeatedly sanctioned even donations inter vivos wherein the donor has
reserved to elf the right to enjoy the donated property for the remainder of his
days, and riders the actual transfer of on to the time of his death (Guzman vs.
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Ibea 67 Phil. 633; Balagui vs Dongso, 53 Phil. 673; Laureta vs. Mata, 44 Phil.
668). Whatever objection is raised against the effects of the first kind of
contracts can be made to apply to the second.
Mature reflection will show that where present (existing) property is the object
of the bargain, all arguments brandished against Conventions over future
succession (post mortem) are just as applicable to other contracts de
praesenti with deferred execution, the validity of which has never been
questioned. Thus, the loss of the power to bequeath the bargained property to
persons of the grantor's choice, and the awakening of the grantee's desire for
the early death of the grantor (the Roman "votum mortis captandae") in order
to obtain prompt control of the contracted goods, occur in both cases. In truth,
the latter ground would bar even a contract of life insurance in favor of a
stated beneficiary. It may also be noted that since the later part of the
nineteenth century, the civilists have recognized that the progress in social
relations has rendered such objections obsolete (Puig Pea, Derecho Civil,
Vol. V, part I, 613 et seq.).
But where the contract involves the universality of the estate that will be left at
a person's death (the "herencia future" as understood by the Spanish Tribunal
Supreno), there is another reason which I believe to be the true justification
for the legal interdiction, and it is this: that if a man were to be allowed to
bargain away all the property he expects to leave behind (i.e., his estate as a
whole), he would practically remain without any incentive to practice thrift and
frugality or to conserve and invest his earnings and property. He would then
be irresistibly drawn to be a wasteful spend-thrift, a social parasite, without
any regard for his future, because whatever he leaves belong to another by
virtue of his contract. The disastrous effects upon family and society if such
agreements were to be held binding can be readily imagined. Hence, the
interpretation given to Article 1271 (now Art. 1347) by the Supreme Court of
Spain appears amply supported by practical reasons, and there is no ground
to deny its application.
Much emphasis has been placed on the provisions of the contract Exhibit "A"
that the widow, Maxima Santos de Blas, would execute a testament in favor of
the appellees. To me this is purely secondary, since it is merely the method
selected by the parties for carrying out the widow's agreement to convey to
the appellees the property in question without her losing its enjoyment during
her natural life, and does not affect the substance or the validity of the
transaction. To ensure the widow's possession of the property and the
perception of its fruits while she was alive the means logically selected was to
return it by will, since such a conveyance could only be operative after death.
There might be a doubt as to the validity of this arrangement if the widows
promise had been purely gratuitous, because then it could be argued that the
promise involved a hybrid donation mortis causa yet irrevocable;1 but here the
obligation to return is concededly irrevocable and supported by adequate
consideration duly received in advance.
Since the agreement in the instant case did not refer to the future estate of the
widow of Blas, but only to part of her present property at the time the contract
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was made; since the promise to retransfer one-half of her conjugal share was
supported by adequate consideration as shown in the main decision; since
the contract obviated protracted litigation and complicated accounting in
settling the conjugal partnership of Blas and his first (deceased) wife; and
since the testament that the widow promised to make was merely the mode
chosen to perform the contract and carry out the promised devolution of the
property, being thus of secondary importance, I can see no reason for
declaring the entire arrangement violative of the legal interdiction of contracts
over future inheritance, and disappoint the legitimate expectation held by the
heirs of the first wife during all these years.
BARRERA, J., concurring:
It seems to me clear that the document Exhibit "A", basis of the action of the
plaintiffs-appellants, refers specifically to and affects solely the share of the
grantor Maxima Santos in the conjugal properties as determined and specified
in the will of her husband Simeon Blas, whose provisions, which she
expressly acknowledged to have read and understood, constitute the raison
d'etre of her promise to deliver or convey, by will, one-half of that specific
share to the heirs and legatees named in her husband's will (who are his heirs
by his first marriage). Nowhere in the document Exhibit "A" is there reference,
to hereditary estate that she herself would leave behind at the time of her own
demise which legally would be her "future inheritance." For this reason, I
believe the contractual obligation assumed by Maxima Santos in virtue of
Exhibit "A" does not come within the prohibition of Article 1271 of the Spanish
Civil Code, now Article 1347 of the Civil Code of the Philippines.
I, therefore, concur in the opinions of Justices Labrador and Reyes.
BAUTISTA ANGELO, J., dissenting:
While I agree with the theory that the document Exhibit "A" does not involve a
contract on future inheritance but a promise made by Maxima Santos to
transmit one-half of her share in the conjugal property acquired during her
marriage to Simeon Blas to the heirs and legatees of the latter, I am however
of the opinion that herein appellants have no cause of action because Maxima
Santos has Substantially complied with her promise.
It should be noted that Maxima Santos' promise to transmit is predicated on

the condition that she can freely choose and select from among the heirs and
legatees of her husband those to whom she would like to give and bequeath
depending on the respect, service and companionship that they may render to
her. Her commitment is not an absolute promise to give to all but only to
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whom she may choose and select. And here this promise has been
substantially complied with.
Thus, it appears that Maxima Santos selected eight such heirs and legatees
instituted in the will of her husband. Note that appellant Marta Gervacio Bias,
who has given a legacy of only P38,000.00 in the will of Simeon Blas, who
was given by her a legacy worth around P400,000.00, appellants Loida
Gervacio Blas (or Luding Blas) and Leoncio (Leony) Gervacio Blas were given
a legacy of P300.00 each every year to last during their lifetime; And Lorenzo
Santos was given a legacy of two fishponds and one-tenth of the whole
residuary estate. It may be stated that although appellant Maria Gervacio Blas
was not given any legacy in Maxima Santos' will, yet her son Simeon Dungao
was given a legacy of a residential land in Tonsuya, Malabon.
I, therefore, consider not in keeping with the nature of the pledge made by
Maxima Santos the decision of the majority in ordering her administratrix to
convey and deliver one-half of her share in the conjugal property to all the
heirs and legatees of her husband Simeon Blas, because only such heirs and
legatees are entitled to share in the property as may be selected by Maxima
Santos, and this she has already done. For these reasons, I dissent.
G.R. No. L-15153 August 31, 1960
In the Matter of the summary settlement of the Estate of the deceased

ANACLETA ABELLANA. LUCIO BALONAN, petitioner-appellee,
vs.
EUSEBIA ABELLANA, et al., oppositors-appellants.
T. de los Santos for appellee.

Climaco and Climaco for appellants.
LABARADOR, J.:
Appeal from a decision of the Court of First Instance of Zamboanga City

admitting to probate the will of one Anacleta Abellana. The case was originally
appealed to the Court of Appeals where the following assignment of error is
made:
The appellants respectfully submit that the Trial Court erred in holding
that the supposed testament, Exh. "A", was signed in accordance with
law; and in admitting the will to probate.
In view of the fact that the appeal involves a question of law the said court has
certified the case to us.
The facts as found by the trial court are as follows:

Case Digest
It appears on record that the last Will and Testament (Exhibit "A"),
which is sought to be probated, is written in the Spanish language and
consists of two (2) typewritten pages (pages 4 and 5 of the record)
double space. The first page is signed by Juan Bello and under his
name appears typewritten "Por la testadora Anacleta Abellana,
residence Certificate A-1167629, Enero 20, 1951, Ciudad de
Zamboanga', and on the second page appears the signature of three
(3) instrumental witnesses Blas Sebastian, Faustino Macaso and
Rafael Ignacio, at the bottom of which appears the signature of T. de
los Santos and below his signature is his official designation as the
notary public who notarized the said testament. On the first page on
the left margin of the said instrument also appear the signatures of the
instrumental witnesses. On the second page, which is the last page of
said last Will and Testament, also appears the signature of the three
(3) instrumental witnesses and on that second page on the left margin
appears the signature of Juan Bello under whose name appears
handwritten the following phrase, "Por la Testadora Anacleta Abellana'.
The will is duly acknowledged before Notary Public Attorney Timoteo
de los Santos. (Emphasis supplied)
The appeal squarely presents the following issue: Does the signature of Dr.
Juan A. Abello above the typewritten statement "Por la Testadora Anacleta
Abellana . . ., Ciudad de Zamboanga," comply with the requirements of law
prescribing the manner in which a will shall be executed?
The present law, Article 805 of the Civil Code, in part provides as follows:
Every will, other than a holographic will, must be subscribed at the end
thereof by the testator himself 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 witness in the
presence of the testator and of one another. (Emphasis supplied.)
The clause "must be subscribed at the end thereof by the testator himself or
by the testator's name written by some other person in his presence and by
his express direction," is practically the same as the provisions of Section 618
of the Code of Civil Procedure (Act No. 190) which 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. . . .
(Emphasis supplied).
Note that the old law as well as the new require that the testator himself sign
the will, or if he cannot do so, the testator's name must be written by some
other person in his presence and by his express direction. Applying this
Case Digest
provision this Court said in the case of Ex Parte Pedro Arcenas, et al., Phil.,
700:
It will be noticed from the above-quoted section 618 of the Code of Civil
Procedure that where the testator does not know how, or is unable, to
sign, it will not be sufficient that one of the attesting witnesses signs the
will at the testator's request, the notary certifying thereto as provided in
Article 695 of the Civil Code, which, in this respect, was modified by
section 618 above referred to, but it is necessary that the testator's
name be written by the person signing in his stead in the place where
he could have signed if he knew how or was able to do so, and this in
the testator's presence and by his express direction; so that a will
signed in a manner different than that prescribed by law shall not be
valid and will not be allowed to be probated.
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 Doe; or in this form: "By the testator,
John Doe, Richard Doe." All this must be written by the witness signing
at the request of the testator.
Therefore, under the law now in force, the witness Naval A. Vidal
should have written at the bottom of the will the full name of the testator
and his own name in one forms given above. He did not do so,
however, and this is failure to comply with the law is a substantial
defect which affects the validity of the will and precludes its allowance,
notwithstanding the fact that no one appeared to oppose it.
The same ruling was laid down in the case of Cuison vs. Concepcion, 5 Phil.,
552. In the case of Barut vs. Cabacungan, 21 Phil., 461, we held that the
important thing is that it clearly appears that the name of the testatrix was
signed at her express direction; it is unimportant whether the person who
writes the name of the testatrix signs his own or not. Cases of the same
import areas follows: (Ex Parte Juan Ondevilla, 13 Phil., 479,
Caluya vs.Domingo, 27 Phil., 330; Garcia vs. Lacuesta, 90 Phil., 489).
In the case at bar the name of the testatrix, Anacleta Abellana, does not
appear written under the will by said Abellana herself, or by Dr. Juan Abello.
There is, therefore, a failure to comply with the express requirement in the law
that the testator must himself sign the will, or that his name be affixed thereto
by some other person in his presence and by his express direction.
It appearing that the above provision of the law has not been complied with,
we are constrained to declare that the said will of the deceased Anacleta
Abellana may not be admitted to probate.
WHEREFORE, the decision appealed from is hereby set aside and the
petition for the probate of the will denied. With costs against petitioner.
Case Digest
WENCESLA CACHO, petitioner-appellee,

vs.
JOHN G. UDAN, and RUSTICO G. UDAN, oppositors-
appellants.
Gregorio Dolojan for petitioner-appellee.

Benjamin A. G. Vega and Abad Santos and Pablo for oppositors-appellants.
REYES, J.B.L., J.:
Direct appeal, on questions of law, from an order of the Court of First Instance
of Zambales (Hon. Lucas Lacson presiding), issued on 20 February 1962, in
its Special Proceeding No. 2230, wherein the court disallowed the opposition
of John G. Udan and Rustico G. Udan to the probate of the alleged will of their
sister Silvina Udan.
From the records it can be gleaned that on 13 December 1959 one Silvina G.
Udan, single, and a resident of San Marcelino, Zambales, died leaving a
purported will naming her son, Francisco G. Udan, and one Wencesla Cacho,
as her sole heirs, share and share alike. Wencesla Cacho, filed a petition to
probate said Will in the Court of First Instance of Zambales on 14 January
1960 (RA. pp. 1-16). On 15 February 1960 Rustico G. Udan, legitimate
brother of the testatrix, filed an opposition to the probate (RA. pp. 16-18). On
16 February 1960 Atty. Guillermo Pablo, Jr., filed his Appearance and Urgent
Motion for Postponement for and in behalf of his client Francisco G. Udan, the
appointed heir in the Will (RA. pp. 18-22). On 9 June 1960 Francisco G.
Udan, through counsel, filed his opposition to the probate of this will (RA. pp.
33-35). On 15 September 1960 oppositor Rustico G. Udan, through counsel,
verbally moved to withdraw his opposition, dated 13 February 1960, due to
the appearance of Francisco G. Udan, the named heir in the will and said
opposition was ordered withdrawn (RA. pp. 55-56). After one witness, the
Notary Public who made and notarize the will, had testified in court, oppositor
Francisco G. Udan died on June 1961 in San Marcelino, Zambales,
Philippines (RA. pp. 63-66).
After the death of Francisco G. Udan, John G. Udan and Rustico G. Udan,
both legitimate brothers of the testatrix Silvina G. Udan, filed their respective
oppositions on the ground that the will was not attested and executed as
required by law, that the testatrix was incapacitated to execute it; and that it
was procured by fraud or undue influence (RA. pp. 63-66; 67-71). On 20
January 1962 proponent-appellee, through counsel, filed a Motion to Dismiss
Oppositions filed by the Oppositors (RA. pp. 73-80), and on 20 February 1962
the Honorable Court of First Instance of Zambales issued an Order
disallowing these two oppositions for lack of interest in the estate and
directing the Fiscal to study the advisability of filing escheat proceedings (RA.
Case Digest
pp. 97-99). On 26 and 30 March 1962 both oppositors filed their Motions for
Reconsideration, through their respective counsels, and these motions were
both denied by the lower court on 25 April 1962 (RA. pp. 99-122; pp. 131-
132). On 7 May 1962 oppositors filed their joint Notice of Appeal (RA. pp. 132-
135).
The first issue tendered by appellants is whether the oppositor brothers, John
and Rustico Udan, may claim to be heirs intestate of their legitimate sister, the
late Silvina Udan. We find that the court below correctly held that they were
not, for at the time of her death Silvina's illegitimate son, Francisco Udan, was
her heir intestate, to the exclusion of her brothers. This is clear from Articles
988 and 1003 of the governing Civil Code of the Philippines, in force at the
time of the death of the testatrix:
ART. 988. In the absence of legitimate descendants or ascendants, the

illegitimate children shall succeed to the entire estate of the deceased.
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.
These legal provisions decree that 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, they do, not concur, but are excluded by the
surviving children, legitimate or illegitimate (Art. 1003).
That Francisco Udan was the illegitimate son of the late Silvina is not denied
by the oppositor; and he is so acknowledged to be in the testament, where
said Francisco is termed "son" by the testatrix. As the latter was admittedly
single, the son must be necessarily illegitimate (presumptively natural under
Article 277).
The trial court, therefore, committed no error in holding that John and Rustico
Udan had no standing to oppose the probate of the will. For if the will is
ultimately probated John and Rustico are excluded by its terms from
participation in the estate; and if probate be denied, both oppositors-
appellants will be excluded by the illegitimate son, Francisco Udan, as sole
intestate heir, by operation of law.
The death of Francisco two years after his mother's demise does not improve
the situation of appellants. The rights acquired by the former are only
transmitted by his death to his own heirs at law not to the appellants, who are
legitimate brothers of his mother, for the reason that, as correctly decided by
the court below, the legitimate relatives of the mother cannot succeed her
illegitimate child. This is clear from Article 992 of the Civil Code.
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
Case Digest
such children or relatives inherit in the same manner from the

illegitimate child.
For the oppositors-appellants it is argued that while Francisco Udan did

survive his mother, and acquired the rights to the succession from the
moment of her death (Art. 777, Civ. Code), still he did not acquire the
inheritance until he accepted it. This argument fails to take into account that
the Code presumes acceptance of an inheritance if the latter is not repudiated
in due time (Civ. Code, Art. 1057, par. 2), and that repudiation, to be valid,
must appear in a public or authentic instrument, or petition to the court. There
is no document or pleading in the records showing repudiation of the
inheritance by Francisco Udan. The latter's own opposition (RA. p. 61) to the
probate of the alleged will is perfectly compatible with the intention to exclude
the proponent Cacho as testamentary coheir, and to claim the entire
inheritance as heir ab intestato.
Finally, it is urged that as probate is only concerned with the due execution of
a testament, any ruling on the successional rights of oppositors-appellants is
at present premature. Inquiry into the hereditary rights of the appellants is not
premature, if the purpose is to determine whether their opposition should be
excluded in order to simplify and accelerate the proceedings. If, as already
shown, appellants cannot gain any hereditary interest in the estate whether
the will is probated or not, their intervention would merely result in
unnecessary complication.
It may not be amiss to note, however, that the hearing on the probate must
still proceed to ascertain the rights of the proponent Cacho as testamentary
heir.
It is urged for the applicant that no opposition has been registered against his
petition on the issues above-discussed. Absence of opposition, however,
does not preclude the scanning of the whole record by the appellate court,
with a view to preventing the conferment of citizenship to persons not fully
qualified therefor (Lee Ng Len vs. Republic, G.R. No. L-20151, March 31,
1965). The applicant's complaint of unfairness could have some weight if the
objections on appeal had been on points not previously passed upon. But the
deficiencies here in question are not new but well-known, having been ruled
upon repeatedly by this Court, and we see no excuse for failing to take them
into account.1wph1.t
WHEREFORE, the order under appeal is affirmed, without prejudice to further

proceedings in the case, conformably to this opinion. Costs against appellants
John G. Udan and Rustico G. Udan.
A.M. No. 2026-CFI December 19, 1981

Case Digest
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.
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
a forged will because she and the attesting witnesses did not appear before
the notary as admitted by the notary himself? chanrobles virtual law library
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: chanrobles virtual law library
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).chanroblesvirtualawlibrarychanrobles
virtual law library
Mauro died in 1942. Marcelina, as a veteran's widow, became a pensioner of

the Federal Government. That explains why on her death she had
accumulated some cash in two banks.chanroblesvirtualawlibrary chanrobles
virtual law library
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).chanroblesvirtualawlibrarychanrobles virtual law library
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. 61-63, Record of testate
case).chanroblesvirtualawlibrarychanrobles virtual law library
Judge Bienvenido A. Tan dismissed the second guardianship proceeding and

confirmed Nenita's appointment as guardian of Agapito (p. 16, Rollo of CA
case). Agapito has been staying in a veteran's hospital in San Francisco or
Palo Alto, California (p. 87, Record).chanroblesvirtualawlibrarychanrobles
virtual law library
Case Digest
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. 23-26, 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.chanroblesvirtualawlibrary chanrobles virtual law library
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. 38-39, CA Rollo). In that wig, Marcelina
bequeathed all her estate to her supposed granddaughter
Marilyn.chanroblesvirtualawlibrary chanrobles virtual law library
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).chanroblesvirtualawlibrarychanrobles virtual law library
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, Marilyn's husband), filed
with the Court of First Instance of Rizal, Pasig Branch 25, a petition for the
probate of Marcelina's alleged will. The case was assigned to Judge Reynaldo
P. Honrado.chanroblesvirtualawlibrary chanrobles virtual law library
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.chanroblesvirtualawlibrary chanrobles virtual law library
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 America to
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.chanroblesvirtualawlibrary chanrobles virtual law library
Upon motion of Marina, Judge Honrado issued another order dated April 11,
1975, instructing a deputy sheriff to eject the occupants of the testatrix's
house, among whom was Nenita V. Suroza, and to place Marina in
possession thereof.chanroblesvirtualawlibrarychanrobles virtual law library
Case Digest
That order alerted Nenita to the existence of the testamentary proceeding for
the settlement of Marcelina's estate. She and the other occupants of the
decedent's 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 decedent's son
Agapito was the sole heir of the deceased, that he has a daughter named
Lilia, that Nenita was Agapito's guardian and that Marilyn was not Agapito's
daughter nor the decedent's granddaughter (pp. 52-68, Record of testate
case). Later, they questioned the probate court's jurisdiction to issue the
ejectment order.chanroblesvirtualawlibrary chanrobles virtual law library
In spite of the fact that Judge Honrado was already apprised that persons,
other than Marilyn, were claiming Marcelina's estate, he issued on April 23 an
order probating her supposed will wherein Marilyn was the instituted heiress
(pp. 74-77, Record).chanroblesvirtualawlibrarychanrobles virtual law library
On April 24, Nenita filed in the testate case an omnibus petition "to set aside
proceedings, admit opposition with counter-petition 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.chanroblesvirtualawlibrarychanrobles virtual law library
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. 83-91, Record).chanroblesvirtualawlibrary chanrobles virtual law library
To that motion was attached an affidavit of Zenaida A. Penaojas the

housemaid of Marcelina, who swore that the alleged will was falsified (p. 109,
Record).chanroblesvirtualawlibrary chanrobles virtual law library
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
Marcelina's intestate heirs, her nieces and nephews (pp. 113-121, Record).
Nenita was not aware of the decree of probate dated April 23,
1975.chanroblesvirtualawlibrarychanrobles virtual law library
To that opposition was attached an affidavit of Dominga Salvador Teodocio,

Marcelina's niece, who swore that Marcelina never executed a win (pp. 124-
125, Record).chanroblesvirtualawlibrary chanrobles virtual law library
Marina in her answer to Nenita's motion to set aside the proceedings admitted
that Marilyn was not Marcelina's granddaughter but was the daughter of
Agapito and Arsenia de la Cruz and that Agapito was not Marcelina's son but
merely an anak-anakan who was not legally adopted (p. 143,
Record).chanroblesvirtualawlibrarychanrobles virtual law library
Case Digest
Judge Honrado in his order of July 17, 1975 dismissed Nenita's counter-
petition for the issuance of letters of administration because of the non-
appearance of her counsel at the hearing. She moved for the reconsideration
of that order.chanroblesvirtualawlibrarychanrobles virtual law library
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. 208-209,
Record).chanroblesvirtualawlibrarychanrobles virtual law library
Judge Honrado in his order of June 8, 1976 "denied" the various incidents
"raised" by Nenita (p. 284, Record).chanroblesvirtualawlibrarychanrobles
virtual law library
Instead of appealing from that order and the order probating the wig, 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. 398-402, Record).chanroblesvirtualawlibrary chanrobles virtual law
library
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.chanroblesvirtualawlibrary chanrobles virtual law library
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 win 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.) chanrobles
virtual law library
Nenita further alleged that Judge Honrado, in spite of his knowledge that the
testatrix had a son named Agapito (the testatrix's supposed sole compulsory
and legal heir), who was preterited in the will, did not take into account the
consequences of such a preterition.chanroblesvirtualawlibrarychanrobles
virtual law library
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
beneficiary's real name is Marilyn Sy and that she was not the next of kin of
the testatrix.chanroblesvirtualawlibrarychanrobles virtual law library
Nenita denounced Judge Honrado for having acted corruptly in allowing

Marina and her cohorts to withdraw from various banks the deposits
Marcelina.chanroblesvirtualawlibrary chanrobles virtual law library
Case Digest
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.chanroblesvirtualawlibrarychanrobles virtual law library
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 thirty day period within which to vacate the house of the
testatrix.chanroblesvirtualawlibrary chanrobles virtual law library
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.chanroblesvirtualawlibrarychanrobles virtual law
library
Evangeline branded as a lie Nenita's 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" Nenita's 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 Nenita's pension from the Federal
Government.chanroblesvirtualawlibrary chanrobles virtual law library
The 1978 complaint against Judge Honorado was brought to attention of this
Court in the Court Administrator's 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.chanroblesvirtualawlibrarychanrobles virtual law library
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.chanroblesvirtualawlibrary chanrobles virtual law library
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
brother lawyer 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 Nenita's remedy was an
appeal and her failure to do so did not entitle her to resort to the special civil
Case Digest
action of certiorari (Suroza vs. Honrado, CA-G.R. No. SP-08654, May 24,
1981).chanroblesvirtualawlibrarychanrobles virtual law library
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.chanroblesvirtualawlibrarychanrobles virtual law library
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 decedent's legal heirs and not the instituted
heiress in the void win should have inherited the decedent's
estate.chanroblesvirtualawlibrary chanrobles virtual law library
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).chanroblesvirtualawlibrary chanrobles virtual law library
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
relmpeachment of Horrilleno, 43 Phil. 212, 214-
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,
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.chanroblesvirtualawlibrarychanrobles virtual law library
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.
Case Digest
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".chanroblesvirtualawlibrary chanrobles virtual law library
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.chanroblesvirtualawlibrarychanrobles virtual law library
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.chanroblesvirtualawlibrarychanrobles virtual law library
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.chanroblesvirtualawlibrarychanrobles virtual law library
Under the circumstances, we find his negligence and dereliction of duty to be

inexcusable.chanroblesvirtualawlibrary chanrobles virtual law library
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).chanroblesvirtualawlibrary chanrobles virtual law library
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 Court's
disciplinary jurisdiction (Peralta vs. Firm Adm. Matter No. 2044-CFI November
21, 1980, 101 SCRA 225).chanroblesvirtualawlibrary chanrobles virtual law
library
SO ORDERED.
Case Digest
G.R. No. L-36033 November 5, 1982

IN THE MATTER OF THE PETITION FOR THE PROBATE OF THE WILL
OF DOROTEA PEREZ, (deceased): APOLONIO TABOADA, petitioner,
vs.
HON. AVELINO S. ROSAL, as Judge of Court of First Instance of
Southern Leyte, (Branch III, Maasin), respondent.
Erasmo M. Diola counsel for petition.
Hon. Avelino S. Rosal in his own behalf.
GUTIERREZ, JR. J.:
This is a petition for review of the orders issued by the Court of First Instance
of Southern Leyte, Branch III, in Special Proceedings No. R-1713, entitled "In
the Matter of the Petition for Probate of the Will of Dorotea Perez, Deceased;
Apolonio Taboada, Petitioner", which denied the probate of the will, the
motion for reconsideration and the motion for appointment of a special
administrator.
In the petition for probate filed with the respondent court, the petitioner
attached the alleged last will and testament of the late Dorotea Perez. Written
in the Cebuano-Visayan dialect, the will consists of two pages. The first page
contains the entire testamentary dispositions and is signed at the end or
bottom of the page by the testatrix alone and at the left hand margin by the
three (3) instrumental witnesses. The second page which contains the
attestation clause and the acknowledgment is signed at the end of the
attestation clause by the three (3) attesting witnesses and at the left hand
margin by the testatrix.
Since no opposition was filed after the petitioner's compliance with the
requirement of publication, the trial court commissioned the branch clerk of
court to receive the petitioner's evidence. Accordingly, the petitioner submitted
his evidence and presented Vicente Timkang, one of the subscribing
witnesses to the will, who testified on its genuineness and due execution.
The trial court, thru then Presiding Judge Ramon C. Pamatian issued the
questioned order denying the probate of the will of Dorotea Perez for want of
a formality in its execution. In the same order, the petitioner was also required
to submit the names of the intestate heirs with their corresponding addresses
so that they could be properly notified and could intervene in the summary
settlement of the estate.
Instead of complying with the order of the trial court, the petitioner filed a
manifestation and/or motion, ex partepraying for a thirty-day period within
which to deliberate on any step to be taken as a result of the disallowance of
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the will. He also asked that the ten-day period required by the court to submit
the names of intestate heirs with their addresses be held in abeyance.
The petitioner filed a motion for reconsideration of the order denying the
probate of the will. However, the motion together with the previous
manifestation and/or motion could not be acted upon by the Honorable
Ramon C. Pamatian due to his transfer to his new station at Pasig, Rizal. The
said motions or incidents were still pending resolution when respondent Judge
Avelino S. Rosal assumed the position of presiding judge of the respondent
court.
Meanwhile, the petitioner filed a motion for the appointment of special

administrator.
Subsequently, the new Judge denied the motion for reconsideration as well as
the manifestation and/or motion filed ex parte. In the same order of denial, the
motion for the appointment of special administrator was likewise denied
because of the petitioner's failure to comply with the order requiring him to
submit the names of' the intestate heirs and their addresses.
The petitioner decided to file the present petition.
For the validity of a formal notarial will, does Article 805 of the Civil Code
require that the testatrix and all the three instrumental and attesting witnesses
sign at the end of the will and in the presence of the testatrix and of one
another?
Article 805 of the Civil Code provides:
Every will, other than a holographic will, must be subscribed at

the end thereof by the testator himself 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 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 lacier witnesses and
signed the will and the pages thereof in the presence of the
testator and of one another.
Case Digest
If the attestation clause is in a language not known to the

witnesses, it shall be interpreted to the witnesses, it shall be
interpreted to them.
The respondent Judge interprets the above-quoted provision of law to require

that, for a notarial will to be valid, it is not enough that only the testatrix signs
at the "end" but an the three subscribing witnesses must also sign at the
same place or at the end, in the presence of the testatrix and of one another
because the attesting witnesses to a will attest not merely the will itself but
also the signature of the testator. It is not sufficient compliance to sign the
page, where the end of the will is found, at the left hand margin of that page.
On the other hand, the petitioner maintains that Article 805 of the Civil Code
does not make it a condition precedent or a matter of absolute necessity for
the extrinsic validity of the wig that the signatures of the subscribing witnesses
should be specifically located at the end of the wig after the signature of the
testatrix. He contends that it would be absurd that the legislature intended to
place so heavy an import on the space or particular location where the
signatures are to be found as long as this space or particular location wherein
the signatures are found is consistent with good faith and the honest frailties
of human nature.
We find the petition meritorious.
Undoubtedly, under Article 805 of the Civil Code, the will must be subscribed
or signed at its end by the testator himself or by the testator's name written by
another 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.
It must be noted that the law uses the

terms attested and subscribed Attestation consists in witnessing the testator's
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
Identification of such paper as the will which was executed by the testator.
(Ragsdale v. Hill, 269 SW 2d 911).
Insofar as the requirement of subscription is concerned, it is our considered

view that the will in this case was subscribed in a manner which fully satisfies
the purpose of Identification.
The signatures of the instrumental witnesses on the left margin of the first
page of the will attested not only to the genuineness of the signature of the
testatrix but also the due execution of the will as embodied in the attestation
clause.
While perfection in the drafting of a will may be desirable, unsubstantial

departure from the usual forms should be ignored, especially where the
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authenticity of the will is not assailed. (Gonzales v. Gonzales, 90 Phil. 444,

449).
The law is to be liberally construed, "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 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 in respect to the
formalities in the execution of a will" (Report of the Code commission, p. 103).
Parenthetically, Judge Ramon C. Pamatian stated in his questioned order that

were not for the defect in the place of signatures of the witnesses, he would
have found the testimony sufficient to establish the validity of the will.
The objects of attestation and of subscription were fully met and satisfied in
the present case when the instrumental witnesses signed at the left margin of
the sole page which contains all the testamentary dispositions, especially so
when the will was properly Identified by subscribing witness Vicente Timkang
to be the same will executed by the testatrix. There was no question of fraud
or substitution behind the questioned order.
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 wig 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".
In Singson v. Florentino, et al. (92 Phil. 161, 164), this Court made the
following observations with respect to the purpose of the requirement that the
attestation clause must state the number of pages used:
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
win 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. Gorecho, 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
Case Digest
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.
Icasiano v. Icasiano (11 SCRA 422, 429) has the following ruling which
applies a similar liberal approach:
... Impossibility of substitution of this page is assured not only

(sic) 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 fun
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.
WHEREFORE, the present petition is hereby granted. The orders of the

respondent court which denied the probate of tile will, the motion for
reconsideration of the denial of probate, and the motion for appointment of a
special administrator are set aside. The respondent court is ordered to allow
the probate of the wig and to conduct further proceedings in accordance with
this decision. No pronouncement on costs.
SO ORDERED.
Case Digest
DIGESTED CASES
Case Digest
In Re Summary Settlement of the Estate of Melodia Ferraris

Filomena ABELLANA DE BACAYO, petitioner-appellant, vs.
Gaudencia FERRARIS, et al., oppositors-appellants.
G.R. No. L-19382, August 31, 1965
FACTS:
Melodia Ferraris left properties in Cebu City consisting of 1/3 share in the
estate of her aunt Rosa Ferraris. Ten years have elapsed since the last time
she was known to be alive, she was declared presumptively dead for
purposes of opening her succession and distribute her estate among heirs.
Hence, a petition for the summary settlement of her estate was filed. Melodia
left no surviving descendant, ascendant or spouse, but was survived only by
collateral relatives: 1) an aunt and half-sister of decedents father; and 2) her
nieces and nephews who were children of Melodias only brother of full blood
who predeceased her. In the settlement proceeding, Filomena Abellana de
Bacayo, who is the decedents half-sister, was excluded as an heir pursuant
to a resolution issued by the lower court. A motion for reconsideration was
denied hence this action.
ISSUE:
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 will the aunt concur with the children of the
decedents brother or will the former be excluded by the latter.
RULING:
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 descending to the heir (Art. 966, Civil Code). Appellant is
likewise right in her contention that nephews and nieces alone do not inherit
by right of representation unless concurring with brothers or sisters of the
deceased, as provided expressly by Art. 975.
Nevertheless, the trial court was correct when it held that, in case of
intestacy, nephews and nieces 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.
Case Digest
Constantino C. ACAIN, petitioner vs.

Hon. INTERMEDIATE APPELLATE COURT
G.R. No. 72706, October 27, 1987
FACTS:
Constantino Acain filed on the Regional Trial Court a petition for the
probate of the will of his late Uncle, Nemesio Acain, on the premise that the
latter died leaving a will in which the former and his brothers and sisters were
instituted as heirs. After the petition was set for hearing in the lower court,
Virginia Fernandez and Rosa Diongson, a legally adopted daughter and the
widow of the deceased respectively, filed a motion to dismiss on the grounds
that: (1) Constantino Acain 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 pretirited. Said motion was denied as well as the subsequent
motion for reconsideration. Consequently, Fernandez and Diongson filed with
the Supreme Court a petition for certiorari and prohibition with preliminary
injunction which was subsequently referred to the Intermediate Appellate
Court. IAC granted Fernandez and Diongsons petition and ordered the trial
court to dismiss the petition for probate of the will. Due to the denial of Acains
motion for reconsideration, he then filed a petition for review on certiorari
before the Supreme Court.
ISSUE:
Whether or not Virginia Fernandez and Rosa Diongson have been

pretirited.
RULING:
Article 854 of the Civil Code:
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.
Insofar as the widow is concerned, Article 854 may not apply as she does not
ascend or descend from the testator, although she is a compulsory heir.
However, the same thing cannot be said of the legally adopted daughter.
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
Case Digest
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 and that both the 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.
The universal institution of Acain 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 heirs without any other
testamentary disposition in the will amounts to a declaration that nothing at all
was written.
Case Digest
Danilo ALUAD, et al., petitioners vs.

Zenaido ALUAD, respondent
G.R. No. 176943, October 17, 2008
FACTS:
Petitioners mother, Maria Aluad and respondent Zenaido Aluad were

raised by the childless spouses Matilde and Crispin Aluad. Crispin was the
owner of six lots of Pilar Cadastre, Capiz. After his death, Matilde adjudicated
the lots to herself and thereafter, she executed a Deed of Donation of Real
Property Inter Vivos in favor of Maria covering all the six lots. The Deed
provided that such
will 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. 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 the land.
Matilde sold one of the lots to Zenaido and subsequently, Matilde

executed a last will and testament devising four (4) of the lots to Maria and the
remaining lot to Zenaido. Maria died a few months after Matildes death.
Thereafter, Marias heirs (herein petitioners) filed before the RTC a complaint
for declaration and recovery of ownership and possession of the two lots
conveyed and donated to Zenaido, alleging that no rights have been
transmitted to the latter because such lots have been previously alienated to
them to Maria via the Deed of Donation. The lower court decided in favor of
the petitioners however, CA reversed said decision upon appeal of Zenaido
which held 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. Due to the denial of the petitioners Motion for Reconsideration, the
present Petition for Review has been filed.
ISSUES:
1. Whether or not the Deed of Donation is donation inter vivos and

whether or not such deed is valid.
2. If so, whether or not Matilde Aluad has the right to convey the lots in
question to Zenaido Aluad.
RULING:
The Court finds the donation to Maria Aluad (petitioners mother) one of
mortis causa, it having the following characteristics:
1. It conveys no title or ownership to the transferee before the 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;
Case Digest
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 of the transferor should survive the
transferee.
The phrase in the earlier-qouted 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 the formers lifetime. Further the statement,
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, anyone of them who should survive is 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.
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. 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 the two
lots was transmitted to Maria. Matilde thus validly disposed the lot to Zenaido
by her last will and testament, subject to the qualification that her will must be
probated. With respect to the conveyed lot, the same had been validly sold by
Matilde to Zenaido.
Case Digest
In the Matter of the Probate of the Last Will and Testament of the
Deceased Brigido Alvarado,
Cesar ALVARADO, petitioner vs.
Hon. Ramon GAVIOLA
G.R. No. 74695, September 14, 1993
FACTS:
Brigido Alvarado executed a notarial will entitled, Huling Habilin wherein

he disinherited an illegitimate son, Cesar Alvarado, and expressly revoked a
previously executed a holographic will at the time awaiting probate before
RTC. As testified to by the three instrumental witnesses, the notary public and
Cesar, the testator did not read the final draft of the will, instead, Atty. Rino, as
the lawyer who drafted the document read the same aloud in the presence of
the testator, the three instrumental witnesses and the notary public. While the
testators will was admitted to probate, a codicil was subsequently executed
changing some dispositions in the notarial will to generate cash for the
testators eye operation because he was then suffering from glaucoma. But
the disinheritance and the revocatory clauses remained and as in the case of
the notarial will, the testator did not personally read the final draft of the
codicil. Instead, it was Atty. Rino who read it alound in his presence and in the
presence of the three instrumental witnesses and of the notary public. Upon
the testators death, Atty Rino as executor filed a petition for probate of the
notarial will which was in turn opposed by Cesar alleging that the will sought
to be probated was not executed and attested as required by law. Upon
failure of Cesar to substantiate his Opposition, a Probate Order was issued
from which an appeal was made to IAC stating that the probate of the
deceaseds last will and codicil should have been denied because the testator
was blind within the meaning of the law at the time his Huling Habilin and the
codicil thereto was executed;and that since reading required by Art. 808 was
admittedly not complied with. CA concluded that although Art. 808 was not
followed, there was, however, as substantial compliance.
ISSUES:
1. Whether or not Brigido Alvarado was blind within the meaning of

Article 808 at the time his Huling Habilin and codicil were
executed.
2. If so, whether or not the requirement of double-reading in said
Article was complied with such that whether or not, they were
validly executed.
RULING:
Art. 808 applies not only to blind testators but also to those who, for one
reason or another, are incapable of reading their wills. Since the deceased
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 but to conclude that he comes within the scope
of the term blind as 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
Case Digest
and codicil did so conformably with his instruction. Hence, to consider his will
as validly executed and entitled to probate, it is essential to ascertain whether
or not Art. 808 had been complied with.
There is no evidence and Cesar does not 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 the testator had affirmed the truth and
authenticity of the contents of the draft. Moreover, 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 were the
terms actually appearing on the typewritten documents. This is especially true
considering the fact that the three instrumental witnesses were persons
known to the testator.
The spirit behind that 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 authenticity of the will, the formal imperfection should be
brushed aside when they do not affect its purpose and which, when taken into
account may only defeat the testators will. Substantial compliance is
acceptable where the purpose of the law has been satisfied, the reason being
that the solemnities surrounding the execution of will 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.
Case Digest
Ruben AUSTRIA et al., petitioners, vs.

Hon. Andres REYES, et al., respondents.
G.R. No. L-23079, February 27, 1970
FACTS:
Basilia Austria filed with the CFI of Rizal a petition for probate ante mortem
of her last will and testament which was opposed by Ruben Austria and
others who are nephews and nieces of Basilia. However, such opposition was
dismissed and the probate was allowed after due hearing. The bulk of the
estate was destined under the will to pass on the Perfecto Cruz and others
whom had been assumed and declared by Basilia as her own legally adopted
children. Subsequently, upon Basilias death, Perfecto was appointed
executor in accordance with the provisions of the formers will. Ruben and the
other petitioners filed in the same proceedings a petition in intervention for
partition alleging in substance that they are the nearest kin and that the five
private respondents (Perfecto et al.) had not in fact been adopted by the
testator in accordance with law, hence they should be rendered mere
strangers and without any right to succeed as heirs. The court then allowed
the said intervention by petitioners which the court delimited to the properties
of the deceased which were not disposed of in the will and disregarded the
matter of the genuineness of adoption. Upon denial of two motions for
reconsiderations, the petitioners filed before the Supreme Court a petition for
certiorari praying for the annulment of the lower courts orders restricting their
intervention.
ISSUE:
Whether or not the institution of heirs would retain efficacy in the event
there exists proof that the adoption of the same heirs by the decedent is false.
RULING:
Article 850 provides:
The statement of a false cause for the institution of

an heir shall be considered as not written, unless it
appears from the will of the testator would not
have made such institution if he had known the
falsity of such cause.
Before the institution of heirs may be annulled under Art. 850, the following
requisites must concur:
1. The cause for the institution heirs must be stated in the will;
2. The cause must be shown to be false; and
3. 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.
The article 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
Case Digest
institution may be annulled only when one is satisfied, after an examination of

the will, that the testator clearly would not have made the institution of he had
known the cause for it to be false. The words used in her will to describe the
class of heirs instituted and the abstract object of the inheritance 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 which
largely favored Cruz, et al. 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. 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. 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.
Case Digest
In the Matter of the summary settlement of the Estate of the decease

Anacleta Abellana
Lucio BALONAN, petitioner-appellee vs.
Eusebia ABELLANA, et al., oppositors-appellants.
G.R. No. L-15153, August 31, 1960
FACTS:
The last Will and Testament sought to be probated consists in two (2)
typewritten pages. The first page is signed by Juan Bello and on the left
margin appears the signatures of the three (3) instrumental witnesses. On the
second page appears the signature of said witnesses, at the bottom of which
appears the signature of the notary public and below said signature is his
designation as notary public. On the left margin of the second page (last page
of the will) appears the signature of Juan Bello under whose name appears
handwritten the phrase, Por la Testadore Anacleta Abellana (For the Testate
of Anacleta Abellana). The will is duly acknowledged before the notary public.
ISSUE:
Whether or not the signature of Juan Bello above the typewritten

statement, Por la Testadora Anacleta Abellana comply with the
requirements of law prescribing the manner in which a will shall be executed.
RULING:
Article 805 of the Civil Code provides:
Every will, other than a holographic will, must be

subscribed at the end there of 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 law requires that the testator himself sign the will, or if he cannot do
so, the testators name must be written by some other person in his presence
and by his express direction. In this case, the name of the testatrix, Anacleta
Abellana does not appear written under the will by said Abellana herself, or by
Dr. Juan Bello. There is therefore, a failure to comply with the express
requirement in the law that the testator must himself sign the will, or that his
name be affixed thereto by some other person in his presence and by his
express direction. Hence, the will of the deceased Anacleta Abellana must not
be admitted to probate.
Case Digest
Maria Gervacio BLAS, et al., plaintiffs-appellants vs.

Rosalina SANTOS, in her capacity as Special Administratix of the
Estate of the deceased Maxima Santos, et al., defendants-appellants.
G.R. No. L-14070, March 29, 1961
FACTS:
Simeon Blas contracted a first marriage with Marta Cruz and had three
children, only one of whom, Eulalio, left children namely: Maria Gervacio Blas
(one of the plaintiffs), Marta Gervacio Blas (one of the defendants), and
Lazaro Gervacio Blas. Lazaro died and is survived by three legitimate children
who are plaintiffs herein namely, Manuel, Leoncio and Loid. Subsequently
after Martas death, Simeon contracted a second marriage with Maxima
Santos. At the time of second marriage, no liquidation of the properties of
Simeon and Marta was made. A week before Simeons death, he executed a
last Will and Testament, and he also ordered a preparation of a document
(Exhibit A) because the properties he had acquired during his first marriage
with Mart had not been liquidated and were not separated from those
acquired during the second marriage. Such document contains promises by
Maxima to respect the disposition of said will and to give one-half (1/2) of the
properties she and her husband will leave to the heirs, legatees or
beneficiaries named in the will. Pursuant to this document, the plaintiffs
instituted an action against the administration of the estate of Maxima Santos
to secure a judicial declaration that one-half (1/2) of the properties left by
Maxima be adjudicated to them. Upon filing of opposition by the administratix,
the trial court dismissed the complaint. Hence, this appeal.
ISSUES:
1. Whether or not the heirs of Simeon Blas and wife Marta Cruz can
make any claim for the unliquidated conjugal properties acquired
during their marriage.
2. Whether or not Exhibit A is a valid and enforceable contract.
RULING:
The heirs of Simeon Blas and his wife Marta Cruz can no longer make any
claim for the unliquidated conjugal properties acquired during said first
marriage because the same were already included in the mass properties
constituting the estate of the deceased Simeon Blas and in the adjudications
made by virtue of his will.
Exhibit A appears to be the compromise defined in Article 1809 of the Civil

Code of Spain, in force at the time of the execution of such document, which
provides as follows:
Compromise is a contract by which each of the parties in interest, by

giving, promising, or retaining something avoids the provocation of a suitor
terminates one which has already provocation been instituted.
Case Digest
The agreement or promise that Maxima Santos made in Exhibit A is to

hold one-half of her share in the conjugal assets in trust for the heirs and
legatees of her husband in his will, with the obligation of conveying the same
to such of his heirs or legatees as she may choose in her last will and
testament. This kind of agreement pr promise is not void.
Case Digest
Wencesla CACHO, petitioner-appellee vs.

John G. UDAN and Rustico G. UDAN, oppositors-appellants.
G.R. No. L-19996, April 30, 1965
FACTS:
Silvina Udan, single, died leaving a will naming her son Francisco and one
Wencesla Cacho as her sole heirs, share and share alike. Cacho then filed a
petition to probate the said Will which was opposed by the testators legitimate
brother, Rustico. Therafter, Francisco filed his opposition to the probate of the
Will while Rustico withdrew his opposition. After Franciscos death, another
legitimate brother of the testator, John, together with Rustico, filed their
respective oppositions. Consequently, Cacho filed a Motion to Dismiss the
Oppositions filed by John and Rustico. CFI issued an order disallowing the
two oppositions for lack of interest in the estate. The subsequent Motions for
Reconsiderations were denied hence, this appeal.
ISSUE:
Whether or not John and Rustico Udan may claim to be heirs intestate of
their legitimate sister, Silvina.
RULING:
It is clear from Article 988 and 1003 of the governing Civil Code of the
Philippines, in force at the time of the death of the testatrix that the oppositor
brothers may not claim to be heirs intestate of their legitimate sister, Silvina.
Art. 988. In the absence of legitimate descendants or

ascendants, the illegitimate children shall succeed to the
entire estate of the deceased.
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.
These legal provisions decree that collateral relatives of one who died
intestate inherit only in the absence of descendants, ascendants, and
illegitimate children. Albeit the brothers and sister can concur with the widow
or widower, they do not concur, but are excluded by the surviving children,
legitimate or illegitimate.
Further, the death of Francisco does not improve the situation of

appellants. The rights acquired by the former are only transmitted by his death
to his own heirs at law not to the appellants, who are legitimate brothers of his
mother, pursuant to Article 992.
Art. 992. An illegitimate child has no right to inherit ab

intestate from the legitimate children and relatives of his
Case Digest
father or mother; nor shall such children or relatives

inherit the same manner from the illegitimate child.
However, the hearing on the probate must still proceed to ascertain the
rights of Cacho as testamentary heir.
Nenita de Vera SUROZA, complainant, vs.

Judge Reynaldo P. HONRADO and Evangeline YUIPCO, respondents.
A.M. No. 2026-CFI, December 19, 1981
FACTS:
Mauro Suroza, a corporal in the 45th Infantry of the US Army (Philippine Scouts) married
Marcelina Salvador but they were childless. However, they reared a boy named Agapito who
used the surname Suroza and who considred them as parents as shown in his marriage
contract with Nenita de Vera. When Mauro died, Marcelina, as a veterans widow, became a
pensioner of the Federal Government. Agapito and Nenita begot a child named Lilia and
afterwards, Agapito also became a soldier. However, he was disabled and his wife was
appointed as his guardian when he was declared an incompetent. In connection to this, a
woman named Arsenia de la Cruz (apparently a girlfriend of Agapito) wanted also to be his
guardian however the court confirmed Nenitas appointment as guardian of Agapito.
The spouses Antonio Sy and Hermogena Talan begot a child named Marilyn Sy, who
was delivered to Marcelina Salvador Suroza who brought her up as a supposed daughter of
Agapito and as her granddaughter. Marilyn used the surname Suroza and stayed with
Marcelina but was not legally adopted by Agapito.
Marcelina, being a veterans widow accumulated some cash in two banks. She executed
a notarial will which is in English and was thumbmarked by her for she was illiterate. In that
will, Marcelina bequeathed all her estate to Marilyn. After her death, Marina Paje (alleged to
be a laundrywoman of Marcelina and the executrix in her will) filed a petition for probate of
Marcelinas alleged will. As there was no opposition, Judge Honrado appointed Marina as
administratix and subsequently, issued two order directing the two banks to allow Marina to
withdraw from the savings of Marcelina and Marilyn Suroza and requiring the custodian of the
passbooks to deliver them to Marina. Upon motion of Marina, Judge Honrado issued another
order instructing the sheriff to eject the occupants of the testatrix house among whom was
Nenita and to place Marina in possession thereof. Nenita was then alerted to the existence of
the testamentary proceeding hence, she and other occupants filed a motion to set aside the
order ejecting them, alleging 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. Later, they questioned
the probate courts jurisdiction to issue the ejectment order. In spite of such fact, Judge
Honrado issued on order probating Marcelinas supposed will wherein Marilyn was the
instituted heiress. Nenita filed in the testate case an omnibus petition to set aside
proceedings, admit opposition with counter petition for administration and preliminary
injunction reiterating that Marilyn was a stranger to Marcelina; that the will was not duly
executed and attested; and that the thumbmarks of the testatrix were procured by fraud or
trick. Further, 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. Not contented with her motions, Nenita
filed an opposition to the probate of the will and a counter-petition which was however,
dismissed. Instead of appealing, Nenita filed a case to annul the probate proceedings which
was also dismissed. Hence, this complaint.
ISSUE:
Case Digest
Whether or not a disciplinary action should be taken against respondent judge for having
admitted a will, which on its face is void.
RULING:
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. Inefficiency implies negligence, incompetence, ignorance and
carelessness. A judge would be inexcusably negligent if he failed in the performance of his
duties that diligence, prudence and circumspection which the law requires in the rendition of
any public service.
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 Matter of the Petition for Probate of the Will of Dorotea Perez,
Apolonio TABOADA, petitioner, vs.
Hon. Avelino S. ROSAL, Judge of Court of First Instance
of Southern Leyte (Branch III, Maasin) respondent.
G.R. No. L-36033, November 5, 1982
FACTS:
In the petition for probate filed with respondent court, Taboada attached the alleged last
will and testament of the late Dorotea Perez which was written in the Cebuano-Visayan
dialect and consisting two pages: the first page contains the entire testamentary dispositions
and is signed at the bottom of the page by the testatrix alone and at the left hand margin by
three (3) instrumental witnesses; and the second page contains the attestation clause and the
acknowledgment is signed at the end of such clause by the said instrumental witnesses and
at the left hand margin by the testatrix. The trial court, through Judge Pamatian, denied the
probate of the will for want of formality in its execution and ordered Taboada to submit the
names of the intestate heirs, however, the latter did not comply with the said order. Instead,
he filed a manifestation and/or motion ex parte praying for a thirty-day period within which to
deliberate on any step to be taken as a result of the disallowance of the will and further, he
filed a motion for reconsideration of the order denying the probate of the will. However, the
motions could not acted upon by Judge Pamatian due to his transfer and thus, Judge Rosal
assumed the position. Meanwhile, Taboada filed a motion for the appointment of special
administrator. Subsequently, the three motions filed by the petitioner were denied, hence this
present petition.
ISSUE:
Whether or not the law requires that the testatrix and all the three instrumental and
attesting witnesses sign at the end of the will and in the presence of the testatrix and of one
another.
RULING:
Article 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.
Case Digest
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 cause 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 the pages thereof in the presence of the testator and
of one another.
Insofar as the requirement of subscription is concerned, it is our considered view that the
will in this case was subscribed in a manner which fully satisfies the purpose of identification.
The signatures of the instrumental witnesses on the left margin of the first page of the will
attested not only to the genuineness of the signature of the testatrix but also the due
execution of the will as embodied in the attestation clause.
The objects of attestation and of subscription were fully met and satisfied in the present
case when the instrumental witnesses signed at the left margin of the sole page which
contains all the testamentary dispositions, especially so when the will was properly identified
by the subscribing witnesses. There was no question of fraud or substitution behind the
questioned order.

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Wills and Succession 1

CHRIST THE KING COLLEGE

JUDGE MYRNA CLEMENS

HANS RUDOLF B. TAMIDLES

ACAIN V HON. INTERMEDIATE APPELLATE COURT 8 15

DANILO ALUAD V ZENAIDO ALUAD 15 - 25

CESAR ALVARADO V HON. RAMON G. GAVIOLA 25 - 30

RUBEN AUSTRIA V HON. ANDRES REYES 30 - 36

MARIA GERVACIO BLAS V ROSALINA SANTOS 36 51

ANACLETA ABELLANA V EUSEBIA ABELLANA 51 54

WENCESLA CACHO V JOHN G. UDAN 54 57

NENITA DE VERA SUROZA V JUDGE HONRADO 56 64

APOLONIO TABOADA V HON. AVELINO S. ROSAL 64 - 68

ACAIN V HON. INTERMEDIATE APPELLATE COURT 71 - 72

DANILO ALUAD V ZENAIDO ALUAD 73 - 74

CESAR ALVARADO V HON. RAMON G. GAVIOLA 75 - 76

RUBEN AUSTRIA V HON. ANDRES REYES 77 - 78

ANACLETA ABELLANA V EUSEBIA ABELLANA 79

MARIA GERVACIO BLAS V ROSALINA SANTOS 80 - 81

WENCESLA CACHO V JOHN G. UDAN 82-83

NENITA DE VERA SUROZA V JUDGE HONRADO 83-84

APOLONIO TABOADA V HON. AVELINO S. ROSAL 84 - 85

FULL TEXT CASES

IN RE SUMMARY SETTLEMENT OF THE ESTATE OF MELOIDA

FILOMENA ABELLANA DE BACAYO, Petitioner-Appellant, v.

Mateo C. Bacalso and Cesar A. Kintanar for Petitioner-Appellant.

Gaudioso Sosmea and C. Tomakin for oppositors-appellees.

1. SUCCESSION; INTESTACY; COLLATERAL RELATIVES EXCLUDED BY

2. ID.; ID.; WHEN COLLATERALS ENTITLED TO SUCCESSION. The

3. ID.; ID.; DEGREE OF RELATIONSHIP OF COLLATERAL RELATIVES TO

4. ID.; ID.; WHEN NEPHEWS AND NIECES INHERIT BY RIGHT OF

REYES, J.B.L., J.:

The facts of this case are not disputed by the parties.

The deceased Melodia Ferraris left no surviving direct descendant,

Against the above ruling, petitioner-appellant contends in the present appeal

We agree with appellants that as an aunt of the deceased, she is as far

"The latter shall succeed without distinction of lines or preference among by

"ART. 952. In the absence of brothers or sisters and of nephews or nieces,

Appellants quote paragraph 2 of Tolentinos commentaries to Article 1009 of

"Other Collaterals. The last of the relatives of the decedent to succeed in

parts, there being no right of representation. They succeed without distinction

The decision appealed from, in so far as it conforms to this rule, is hereby

Bengzon, C.J., Concepcion, Dizon, Regala, Makalintal, Bengzon, J.P. and

Bautista Angelo, J., took no part.

[G.R. No. 72706. October 27, 1987.]

CONSTANTINO C. ACAIN, Petitioner, v. HON. INTERMEDIATE

This is a petition for review on certiorari of the decision * of respondent Court

The dispositive portion of the questioned decision reads as

"WHEREFORE, the petition is hereby granted and respondent Regional Trial

The antecedents of the case, based on the summary of the Intermediate

Obviously, Segundo pre-deceased Nemesio. Thus, it is the children of

Respondent Intermediate Appellate Court granted private respondents

Petitioner raises the following issues (Memorandum for Petitioner,

p. 4):chanrob1es virtual 1aw library

Article 854 of the Civil Code provides:jgc:chanrobles.com.ph

Preterition annuls the institution of an heir and annulment throws open to

the testamentary disposition of any gift of an individual item of personal or real

Special Proceedings No. 591-CEB is for the probate of a will. As stated by

The rule, however, is not inflexible and absolute. Under exceptional