PECSON v.

CORONEL The testator instituted Segundo Acain his

brother and in case his brother predecease him
Facts: Dolores Coronel instituted Lorenzo Pecson his children (the petitioners herein) will
as executor of her will and her sole heir , who is represent him as his sole heir.
married to her niece Angela Coronel, in her will,
in consideration of the good services which he The oppositors(Viriginia Fernandez as legally
has rendered. adopted daughter of the deceased and his widow
Rosa Diongson) filed a motion one amongst is
The petitioner for the probate of the will is that the widow and adopted daughter have been
Lorenzo Pecson and the opponents are relatives preterited.
of Dolores Coronel.
Issue: Issue: W/N a widow and adopted child can be
The probate of the will is impugned on the ff: preterited.
a) That the document is not the last will and
testament of Dolores Coronel SC: No. Preterition consists in the omission in the
It could not be the will of the testratix because it testator’s will of the forced heirs or anyone of
is unusual that she completely exclude her blood them either because they are not mentioned
relatives from her estate, there no appearing therein, or though mentioned, they are neither
motive for such exclusion. instituted as heirs nor are expressly disinherited.
Insofar as the widow is concerned Art.854 of
From the testimony of Atty. Francisco, Dolores NCC may not apply as she does not ascend or
revealed to him her suspicion against some of descend from the testator, although she is a
her nephews as having been accomplices in a compulsory heir.
robbery of which she had been a victim. However, the same thing cannot be said of the
adopted child. Under Art.39 of PD No. 603 known
as Child and Youth Welfare Code, adoption gives
SC: to the adopted person the same rights and duties
In the absence of any statutory restriction, every as if he were a legitimate child of the adopter and
person possesses absolute dominion over his makes the adopted person a legal heir of the
property, and may bestow it upon whomsoever adopter. It cannot be denied that she was totally
he pleases without regard to natural or legal omitted and preterited in the will of the testator.
claim upon his bounty. If the testator possesses
the requisite capacity to make a will and the The universal institution of petitioner together
disposition of his property is not affected by with his brothers and his sisters to the entire
fraud or undue influence, the will is not rendered inheritance of the testator results in totally
invalid by the fact that it is unnatural, abrogating the will because the nullification of
unreasonable, or unjust. such institution of universal heirs without any
other testamentary disposition in the will
ACAIN v. IAC amounts to declaration that nothing at all was
Facts: Constantino Acain filed in the RTC OF written.
Cebu City, a petition for the probate of the will of
Nemesio Acain and for issuance of letters NERI v. AKUTIN
testamentary. Facts:The testator in his will left all his property
Nemesio Acain died leaving a will in which by universal title to the children by his second
petitioner and his brothers and sisters were marriage, the herein respondents, with
instituted as heirs. The will was written in preterition of the children by his first marriage,
bisaya. The will contained provisions on burial the herein petitioners. The Court annulled the
rites,payment of debts, and appointment of Atty. institution of heirs and declared a total intestacy.
Ignacio Villagonzalo as the executor of the Issue:
testament. W/N there is preterition as to the children of the
first marriage who have received their shares in
the property left by the testator, that assuming Petitioners, asserting co-ownership filed a case
that there has been preterition, the effect would for partition, respondents on the other hand
not be annulment of the institution of heirs but claims absolute ownership based on 2
simply reduction of the bequest made to them. documents (a) deed of donation executed by late
Julian Viado covering one-half of his conjugal
SC: NERI v. AKUTIN share in favor of Nilo Viado and (b) deed of
GR No.L-47799, May 21, 1943 extrajudicial settlement in which Julian Viado,
74 PHIL 185 Leah Viado Jacobs(through an SPA in favor of
Nilo Viado) and petitioner Rebecca Viado waived
FACTS: This is a case where the testator Agripino
Neri in his will left all his property by universal
in favor of Nilo Viado their right and interests
title to the children by his second marriage, the over their share of the property inherited from
herein respondents, with omission of the children Virginia Viado.
by his first marriage, the herein petitioner. The
omission of the heirs in the will was contemplated Rebecca contends that Nilo employed forgery
by the testator with the belief that he had already and undue influence to coerce Julian Viado to
given each of the children portion of the
inheritance, particularly a land he had abandoned
execute deed of donation. In her case, she
was occupied by the respondents over which averred that Nilo employed fraud to procure her
registration was denied for it turned out to be a signature. She added that the exclusion of her
public land, and an aggregate amount of money retardate sister Delia Viado in the extra judicial
which the respondents were indebted to their settlement resulted in the latter’s preterition and
father. should warrant annulment.
ISSUE: Should there be cancellation of the will, in
view of the omission of heirs? Is there Issue: W/N the partition should be rescinded due
disinheritance in this case? to the preterition of Delia as an heir.

HELD: Yes. The Court annulled the institution of SC: Yes. This kind of preterition howver, in the
heirs and declared a total intestacy on the ground absence of proof of fraud and bad faith, does not
that testator left all his property by universal title justify a collateral attack on TCT NO.372646. The
to the children by his second marriage, without relief is that partition shall not be rescinded but
expressly disinheriting the children by his first
marriage but upon the erroneous belief that he
the preterited heir shall be paid the value of the
had given them already more shares in his share pertaining to her.
property than those given to the children by his
second marriage.  Disinheritance made without a PEREZ V. GARCHITORENA
statement of the cause, if contested, shall annul
the institution of heirs in so far as it is prejudicial
to the disinherited person. This is but a case of
preterition which annuls the institution of heirs. RABADILLA vs. CA

June 29, 2000

NON v. CA
Facts: Sps. Julian Viado and Virginia Viado died FACTS:        
left a house and lot located at La Loma QC.
Surviving them were their children: Nilo Viado, In a Codicil appended to the Last Will and
Leah Viado Jacobs ,(Petitioners) Rebecca Viado, Testament of testatrix Aleja Belleza, Dr. Jorge
Delia Viado. Petitioners and respondents shared
Rabadilla, predecessor-in-interest of the herein
the subject property in common.However,
tension have escalated between Rebecca and petitioner, Johnny S. Rabadilla, was instituted as
Alicia after the former had asked the property to a devisee of parcel of land. The Codicil provides
be divided between the two families to make that Jorge Rabadilla shall have the obligation
room for the growing children. Respondents
until he dies, every year to give Maria Marlina
claimed absolute ownership over the entire
property and demanded petitioners to vacate. Coscolluela y Belleza, (75) (sic) piculs of Export
sugar and (25) piculs of Domestic sugar, until the Instance of Negros Occidental,
said Maria Marlina Coscolluela y Belleza dies.    contained the following provisions:

Dr. Jorge Rabadilla died. Private "FIRST

respondent brought a complaint, to enforce the
I give, leave and bequeath
provisions of subject Codicil. 
the following property owned
ISSUE:
by me to Dr. Jorge Rabadilla
resident of 141 P. Villanueva,
WON the obligations of Jorge Rabadilla Pasay City:
under the Codicil are inherited by his heirs.
(a) Lot No. 1392 of the
HELD:   Bacolod Cadastre, covered
by Transfer Certificate of Title
Under Article 776 of the NCC, inheritance No. RT-4002 (10942), which
includes all the property, rights and obligations is registered in my name
of a person, not extinguished by his death.
according to the records of
the Register of Deeds of
Conformably, whatever rights Dr. Jorge
Negros Occidental.
Rabadilla had by virtue of subject Codicil were
transmitted to his forced heirs, at the time of his (b) That should Jorge
death. And since obligations not Rabadilla die ahead of me,
extinguished by death also form part of the aforementioned property
the estate of the decedent; corollarily, the and the rights which I shall
obligations imposed by the Codicil on the set forth hereinbelow, shall be
inherited and acknowledged
deceased Dr. Jorge Rabadilla, were likewise
by the children and spouse of
transmitted to his compulsory heirs upon his
Jorge Rabadilla.
death.
xxx
The antecedent facts are as follows: FOURTH
In a Codicil appended to the Last (a)....It is also my command,
Will and Testament of testatrix Aleja in this my addition (Codicil),
Belleza, Dr. Jorge Rabadilla, that should I die and Jorge
predecessor-in-interest of the Rabadilla shall have already
herein petitioner, Johnny S. received the ownership of the
Rabadilla, was instituted as a said Lot No. 1392 of the
devisee of 511, 855 square meters Bacolod Cadastre, covered
of that parcel of land surveyed as by Transfer Certificate of Title
Lot No. 1392 of the Bacolod No. RT-4002 (10942), and
Cadastre. The said Codicil, which also at the time that the lease
was duly probated and admitted in of Balbinito G. Guanzon of
Special Proceedings No. 4046 the said lot shall expire, Jorge
before the then Court of First Rabadilla shall have the
obligation until he dies, every
year to give to Maria Marlina have respected my command
Coscolluela y Belleza, in this my addition (Codicil),
Seventy (75) (sic) piculs of Maria Marlina Coscolluela y
Export sugar and Twenty Five Belleza, shall immediately
(25) piculs of Domestic sugar, seize this Lot No. 1392 from
until the said Maria Marlina my heir and the latter's heirs,
Coscolluela y Belleza dies. and shall turn it over to my
near desendants, (sic) and
FIFTH the latter shall then have the
obligation to give the ONE
(a) Should Jorge Rabadilla HUNDRED (100) piculs of
die, his heir to whom he shall sugar until Maria Marlina shall
give Lot No. 1392 of the die. I further command in this
Bacolod Cadastre, covered my addition (Codicil) that my
by Transfer Certificate of Title heir and his heirs of this Lot
No. RT-4002 (10492), shall No. 1392, that they will obey
have the obligation to still give and follow that should they
yearly, the sugar as specified decide to sell, lease,
in the Fourth paragraph of his mortgage, they cannot
testament, to Maria Marlina negotiate with others than my
Coscolluela y Belleza on the near descendants and my
month of December of each sister."
[4]

year.
Pursuant to the same Codicil, Lot
SIXTH No. 1392 was transferred to the
deceased, Dr. Jorge Rabadilla, and
I command, in this my Transfer Certificate of Title No.
addition (Codicil) that the Lot 44498 thereto issued in his name.
No. 1392, in the event that
the one to whom I have left Dr. Jorge Rabadilla died in 1983
and bequeathed, and his heir and was survived by his wife Rufina
shall later sell, lease, and children Johnny (petitioner),
mortgage this said Lot, the Aurora, Ofelia and Zenaida, all
buyer, lessee, mortgagee, surnamed Rabadilla.
shall have also the obligation
to respect and deliver yearly On August 21, 1989, Maria Marlena
ONE HUNDRED (100) piculs Coscolluela y Belleza Villacarlos
of sugar to Maria Marlina brought a complaint, docketed as
Coscolluela y Belleza, on Civil Case No. 5588, before Branch
each month of December, 52 of the Regional Trial Court in
SEVENTY FIVE (75) piculs of Bacolod City, against the above-
Export and TWENTY FIVE mentioned heirs of Dr. Jorge
(25) piculs of Domestic, until Rabadilla, to enforce the provisions
Maria Marlina shall die, lastly of subject Codicil. The Complaint
should the buyer, lessee or alleged that the defendant-heirs
the mortgagee of this lot, not
violated the conditions of the names of the surviving heirs of the
Codicil, in that: late Aleja Belleza.

1. Lot No. 1392 was On February 26, 1990, the

mortgaged to the Philippine defendant-heirs were declared in
National Bank and the default but on March 28, 1990 the
Republic Planters Bank in Order of Default was lifted, with
disregard of the testatrix's respect to defendant Johnny S.
specific instruction to sell, Rabadilla, who filed his Answer,
lease, or mortgage only to the accordingly.
near descendants and sister
of the testatrix. During the pre-trial, the parties
admitted that:
2. Defendant-heirs failed to
comply with their obligation to On November 15, 1998, the
deliver one hundred (100) plaintiff (private respondent) and a
piculs of sugar (75 piculs certain Alan Azurin, son-in-law of
export sugar and 25 piculs the herein petitioner who was
domestic sugar) to plaintiff lessee of the property and acting as
Maria Marlena Coscolluela y attorney-in-fact of defendant-heirs,
Belleza from sugar crop years arrived at an amicable settlement
1985 up to the filing of the and entered into a Memorandum of
complaint as mandated by the Agreement on the obligation to
Codicil, despite repeated deliver one hundred piculs of sugar,
demands for compliance. to the following effect:

3. The banks failed to comply "That for crop year 1988-89,

with the 6th paragraph of the the annuity mentioned in
Codicil which provided that in Entry No. 49074 of TCT No.
case of the sale, lease, or 44489 will be delivered not
mortgage of the property, the later than January of 1989,
buyer, lessee, or mortgagee more specifically, to wit:
shall likewise have the
obligation to deliver 100 75 piculs of 'A'
piculs of sugar per crop year sugar, and 25
to herein private respondent. piculs of 'B'
sugar, or then
The plaintiff then prayed that existing in any of
judgment be rendered ordering our names, Mary
defendant-heirs to reconvey/return- Rose Rabadilla y
Lot No. 1392 to the surviving heirs Azurin or Alan
of the late Aleja Belleza, the Azurin, during
cancellation of TCT No. 44498 in December of
the name of the deceased, Dr. each sugar crop
Jorge Rabadilla, and the issuance year, in Azucar
of a new certificate of title in the Sugar Central;
 and, this is For 1987-88, TWENTY SIX
considered THOUSAND TWO HUNDRED
compliance of the FIFTY (P26,250.00) Pesos, payable
annuity as on or before December of crop year
mentioned, and in 1990-91; and
the same manner
will compliance of For 1988-89, TWENTY SIX
the annuity be in THOUSAND TWO HUNDRED
the next FIFTY (P26,250.00) Pesos, payable
succeeding crop on or before December of crop year
years. 1991-92." [5]

That the annuity above stated However, there was no compliance

for crop year 1985-86, 1986- with the aforesaid Memorandum of
87, and 1987-88, will be Agreement except for a partial
complied in cash equivalent delivery of 50.80 piculs of sugar
of the number of piculs as corresponding to sugar crop year
mentioned therein and which 1988 -1989.
is as herein agreed upon,
taking into consideration the On July 22, 1991, the Regional Trial
composite price of sugar Court came out with a decision,
during each sugar crop year, dismissing the complaint and
which is in the total amount of disposing as follows:
ONE HUNDRED FIVE
THOUSAND PESOS "WHEREFORE, in the light of
(P105,000.00). the aforegoing findings, the
Court finds that the action is
That the above-mentioned amount prematurely filed as no cause
will be paid or delivered on a of action against the
staggered cash installment, payable defendants has as yet arose
on or before the end of December in favor of plaintiff. While
of every sugar crop year, to wit: there maybe the non-
performance of the command
For 1985-86, TWENTY SIX as mandated exaction from
THOUSAND TWO HUNDRED them simply because they are
FIFTY (P26,250.00) Pesos, payable the children of Jorge
on or before December of crop year Rabadilla, the title
1988-89; holder/owner of the lot in
question, does not warrant
For 1986-87, TWENTY SIX the filing of the present
THOUSAND TWO HUNDRED complaint. The remedy at bar
FIFTY (P26,250.00) Pesos, payable must fall. Incidentally, being in
on or before December of crop year the category as creditor of the
1989-90; left estate, it is opined that
plaintiff may initiate the
intestate proceedings, if only
 to establish the heirs of Jorge plaintiff-appellant must
Rabadilla and in order to give institute separate proceedings
full meaning and semblance to re-open Aleja Belleza's
to her claim under the Codicil. estate, secure the
appointment of an
In the light of the aforegoing administrator, and distribute
findings, the Complaint being Lot No. 1392 to Aleja
prematurely filed is Belleza's legal heirs in order
DISMISSED without to enforce her right, reserved
prejudice. to her by the codicil, to
receive her legacy of 100
SO ORDERED." [6]
piculs of sugar per year out of
the produce of Lot No. 1392
On appeal by plaintiff, the First until she dies.
Division of the Court of Appeals
reversed the decision of the trial Accordingly, the decision
court; ratiocinating and ordering appealed from is SET ASIDE
thus: and another one entered
ordering defendants-
"Therefore, the evidence on appellees, as heirs of Jorge
record having established Rabadilla, to reconvey title
plaintiff-appellant's right to over Lot No. 1392, together
receive 100 piculs of sugar with its fruits and interests, to
annually out of the produce of the estate of Aleja Belleza.
Lot No. 1392; defendants-
appellee's obligation under SO ORDERED." [7]

Aleja Belleza's codicil, as

heirs of the modal heir, Jorge Dissatisfied with the aforesaid
Rabadilla, to deliver such disposition by the Court of Appeals,
amount of sugar to plaintiff- petitioner found his way to this
appellant; defendants- Court via the present petition,
appellee's admitted non- contending that the Court of
compliance with said Appeals erred in ordering the
obligation since 1985; and, reversion of Lot 1392 to the estate
the punitive consequences of the testatrix Aleja Belleza on the
enjoined by both the codicil basis of paragraph 6 of the Codicil,
and the Civil Code, of seizure and in ruling that the testamentary
of Lot No. 1392 and its institution of Dr. Jorge Rabadilla is a
reversion to the estate of modal institution within the purview
Aleja Belleza in case of such of Article 882 of the New Civil Code.
non-compliance, this Court
deems it proper to order the The petition is not impressed with
reconveyance of title over Lot merit.
No. 1392 from the estates of
Jorge Rabadilla to the estate Petitioner contends that the Court of
of Aleja Belleza. However, Appeals erred in resolving the
appeal in accordance with Article against the petitioner. The
882 of the New Civil Code on modal disquisition made on modal
institutions and in deviating from the institution was, precisely, to stress
sole issue raised which is the that the private respondent had a
absence or prematurity of the cause legally demandable right against the
of action. Petitioner maintains that petitioner pursuant to subject
Article 882 does not find application Codicil; on which issue the Court of
as there was no modal institution Appeals ruled in accordance with
and the testatrix intended a mere law.
simple substitution - i.e. the
instituted heir, Dr. Jorge Rabadilla, It is a general rule under the law on
was to be substituted by the succession that successional rights
testatrix's "near descendants" are transmitted from the moment of
should the obligation to deliver the death of the decedent  and
[10]

fruits to herein private respondent compulsory heirs are called to

be not complied with. And since the succeed by operation of law. The
testatrix died single and without legitimate children and
issue, there can be no valid descendants, in relation to their
substitution and such testamentary legitimate parents, and the widow or
provision cannot be given any widower, are compulsory heirs.
effect.  Thus, the petitioner, his mother
[11]

and sisters, as compulsory heirs of

The petitioner theorizes further that the instituted heir, Dr. Jorge
there can be no valid substitution Rabadilla, succeeded the latter by
for the reason that the substituted operation of law, without need of
heirs are not definite, as the further proceedings, and the
substituted heirs are merely successional rights were
referred to as "near descendants" transmitted to them from the
without a definite identity or moment of death of the decedent,
reference as to who are the "near Dr. Jorge Rabadilla.
descendants" and therefore, under
Articles 843  and 845  of the New
[8] [9] Under Article 776 of the New Civil
Civil Code, the substitution should Code, inheritance includes all the
be deemed as not written. property, rights and obligations of a
person, not extinguished by his
The contentions of petitioner are death. Conformably, whatever
untenable. Contrary to his rights Dr. Jorge Rabadilla had by
supposition that the Court of virtue of subject Codicil were
Appeals deviated from the issue transmitted to his forced heirs, at
posed before it, which was the the time of his death. And since
propriety of the dismissal of the obligations not extinguished by
complaint on the ground of death also form part of the estate of
prematurity of cause of action, there the decedent; corollarily, the
was no such deviation. The Court of obligations imposed by the Codicil
Appeals found that the private on the deceased Dr. Jorge
respondent had a cause of action Rabadilla, were likewise transmitted
to his compulsory heirs upon his first instituted. Under substitutions
death. in general, the testator may either
(1) provide for the designation of
In the said Codicil, testatrix Aleja another heir to whom the property
Belleza devised Lot No. 1392 to Dr. shall pass in case the original heir
Jorge Rabadilla, subject to the should die before him/her, renounce
condition that the usufruct thereof the inheritance or be incapacitated
would be delivered to the herein to inherit, as in a simple
private respondent every year. substitution,  or (2) leave his/her
[12]

Upon the death of Dr. Jorge property to one person with the
Rabadilla, his compulsory heirs express charge that it be
succeeded to his rights and title transmitted subsequently to another
over the said property, and they or others, as in a fideicommissary
also assumed his (decedent's) substitution.  The Codicil sued
[13]

obligation to deliver the fruits of the upon contemplates neither of the

lot involved to herein private two.
respondent. Such obligation of the
instituted heir reciprocally In simple substitutions, the second
corresponds to the right of private heir takes the inheritance in default
respondent over the usufruct, the of the first heir by reason of
fulfillment or performance of which incapacity, predecease or
is now being demanded by the renunciation.  In the case under
[14]

latter through the institution of the consideration, the provisions of

case at bar. Therefore, private subject Codicil do not provide that
respondent has a cause of action should Dr. Jorge Rabadilla default
against petitioner and the trial court due to predecease, incapacity or
erred in dismissing the complaint renunciation, the testatrix's near
below. descendants would substitute him.
What the Codicil provides is that,
Petitioner also theorizes that Article should Dr. Jorge Rabadilla or his
882 of the New Civil Code on modal heirs not fulfill the conditions
institutions is not applicable imposed in the Codicil, the property
because what the testatrix intended referred to shall be seized and
was a substitution - Dr. Jorge turned over to the testatrix's near
Rabadilla was to be substituted by descendants.
the testatrix's near descendants
should there be noncompliance with Neither is there a fideicommissary
the obligation to deliver the piculs of substitution here and on this point,
sugar to private respondent. petitioner is correct. In a
fideicommissary substitution, the
Again, the contention is without first heir is strictly mandated to
merit. preserve the property and to
transmit the same later to the
Substitution is the designation by second heir.  In the case under
[15]

the testator of a person or persons consideration, the instituted heir is

to take the place of the heir or heirs in fact allowed under the Codicil to
alienate the property provided the Art. 882. The statement of the
negotiation is with the near object of the institution or the
descendants or the sister of the application of the property left
testatrix. Thus, a very important by the testator, or the charge
element of a fideicommissary imposed on him, shall not be
substitution is lacking; the obligation considered as a condition
clearly imposing upon the first heir unless it appears that such
the preservation of the property and was his intention.
its transmission to the second heir.
"Without this obligation to preserve That which has been left in
clearly imposed by the testator in this manner may be claimed
his will, there is no fideicommissary at once provided that the
substitution."  Also, the near
[16] instituted heir or his heirs give
descendants' right to inherit from security for compliance with
the testatrix is not definite. The the wishes of the testator and
property will only pass to them for the return of anything he
should Dr. Jorge Rabadilla or his or they may receive, together
heirs not fulfill the obligation to with its fruits and interests, if
deliver part of the usufruct to private he or they should disregard
respondent. this obligation.

Another important element of a Art. 883. When without the

fideicommissary substitution is also fault of the heir, an institution
missing here. Under Article 863, the referred to in the preceding
second heir or the fideicommissary article cannot take effect in
to whom the property is transmitted the exact manner stated by
must not be beyond one degree the testator, it shall be
from the first heir or the fiduciary. A complied with in a manner
fideicommissary substitution is most analogous to and in
therefore, void if the first heir is not conformity with his wishes.
related by first degree to the second
heir.  In the case under scrutiny,
[17] The institution of an heir in the
the near descendants are not at all manner prescribed in Article 882 is
related to the instituted heir, Dr. what is known in the law of
Jorge Rabadilla. succession as an institucion sub
modo or a modal institution. In a
The Court of Appeals erred not in modal institution, the testator states
ruling that the institution of Dr. (1) the object of the institution, (2)
Jorge Rabadilla under subject the purpose or application of the
Codicil is in the nature of a modal property left by the testator, or (3)
institution and therefore, Article 882 the charge imposed by the testator
of the New Civil Code is the upon the heir.  A "mode" imposes
[18]

provision of law in point. Articles an obligation upon the heir or

882 and 883 of the New Civil Code legatee but it does not affect the
provide: efficacy of his rights to the
succession.  On the other hand, in
[19]
a conditional testamentary testator. In case of doubt, the
disposition, the condition must institution should be considered as
happen or be fulfilled in order for modal and not conditional. [22]

the heir to be entitled to succeed

the testator. The condition Neither is there tenability in the
suspends but does not obligate; other contention of petitioner that
and the mode obligates but does the private respondent has only a
not suspend.  To some extent, it is
[20] right of usufruct but not the right to
similar to a resolutory condition.
[21] seize the property itself from the
instituted heir because the right to
From the provisions of the Codicil seize was expressly limited to
litigated upon, it can be gleaned violations by the buyer, lessee or
unerringly that the testatrix intended mortgagee.
that subject property be inherited by
Dr. Jorge Rabadilla. It is likewise In the interpretation of Wills, when
clearly worded that the testatrix an uncertainty arises on the face of
imposed an obligation on the said the Will, as to the application of any
instituted heir and his successors- of its provisions, the testator's
in-interest to deliver one hundred intention is to be ascertained from
piculs of sugar to the herein private the words of the Will, taking into
respondent, Marlena Coscolluela consideration the circumstances
Belleza, during the lifetime of the under which it was made.  Such
[23]

latter. However, the testatrix did not construction as will sustain and
make Dr. Jorge Rabadilla's uphold the Will in all its parts must
inheritance and the effectivity of his be adopted. [24]

institution as a devisee, dependent

on the performance of the said Subject Codicil provides that the
obligation. It is clear, though, that instituted heir is under obligation to
should the obligation be not deliver One Hundred (100) piculs of
complied with, the property shall be sugar yearly to Marlena Belleza
turned over to the testatrix's near Coscuella. Such obligation is
descendants. The manner of imposed on the instituted heir, Dr.
institution of Dr. Jorge Rabadilla Jorge Rabadilla, his heirs, and their
under subject Codicil is evidently buyer, lessee, or mortgagee should
modal in nature because it imposes they sell, lease, mortgage or
a charge upon the instituted heir otherwise negotiate the property
without, however, affecting the involved. The Codicil further
efficacy of such institution. provides that in the event that the
obligation to deliver the sugar is not
Then too, since testamentary respected, Marlena Belleza
dispositions are generally acts of Coscuella shall seize the property
liberality, an obligation imposed and turn it over to the testatrix's
upon the heir should not be near descendants. The non-
considered a condition unless it performance of the said obligation
clearly appears from the Will itself is thus with the sanction of seizure
that such was the intention of the of the property and reversion
thereof to the testatrix's near WHEREFORE, the petition is
descendants. Since the said hereby DISMISSED and the
obligation is clearly imposed by the decision of the Court of Appeals,
testatrix, not only on the instituted dated December 23, 1993, in CA-
heir but also on his successors-in- G.R. No. CV-35555 AFFIRMED. No
interest, the sanction imposed by pronouncement as to costs
the testatrix in case of non-
fulfillment of said obligation should SO ORDERED.
equally apply to the instituted heir
and his successors-in-interest. [G.R. No. L-3891. December 19, 1907. ]

ELENA MORENTE, Petitioner-Appellant, v.
Similarly unsustainable is GUMERSINDO DE LA SANTA, Respondent-Appellee. 
petitioner's submission that by
Agoncillo and Ilustre, for Appellant. 
virtue of the amicable settlement,
the said obligation imposed by the Agustin Alvares, for Appellee. 
Codicil has been assumed by the SYLLABUS
lessee, and whatever obligation
petitioner had become the 1. CONSTRUCTION OF WILLS; CONDITIONAL LEGACIES.
— A testator may insert conditional provisions in his will,
obligation of the lessee; that as prescribed by article 790 of the Civil Code. Under
petitioner is deemed to have made article 793, a prohibition against another marriage may
also be imposed, in certain cases, upon the widow or
a substantial and constructive widower. But, in order to make a testamentary provision
compliance of his obligation through conditional, such condition must fairly appear from the
language used in the will. It will not be presumed. 
the consummated settlement
between the lessee and the private
DECISION
respondent, and having
consummated a settlement with the
WILLARD, J.  :
petitioner, the recourse of the
private respondent is the fulfillment
The will of Consuelo Morente contains the following
of the obligation under the amicable clauses:jgc:chanrobles.com.ph

settlement and not the seizure of

"1. I hereby order that all real estate which may belong to
subject property. me shall pass to my husband, Gumersindo de la Santa. 

"2. That my said husband shall not leave my brothers

Suffice it to state that a Will is a after my death, and that he shall not marry anyone;
personal, solemn, revocable and should my said husband have children by anyone, he shall
not convey any portion of the property left by me, except
free act by which a person disposes the one-third part thereof and the two remaining thirds
of his property, to take effect after shall be and remain for my brother Vicente or his children
should he have any. 
his death.  Since the Will
[25]

expresses the manner in which a "3. After my death I direct my husband to dwell in the
camarin in which the bakery is located, which is one of the
person intends how his properties properties belonging to me." cralaw virtua1aw library

be disposed, the wishes and

Her husband, Gumersindo de la Santa, married again
desires of the testator must be within four months of the death of the testatrix. Elena
strictly followed. Thus, a Will cannot Morente, a sister of the deceased, filed a petition in the
proceeding relating to the probate of the will of Consuelo
be the subject of a compromise Morente pending in the Court of First Instance of the
agreement which would thereby Province of Tayabas in which she alleged the second
marriage of Gumersindo de la Santa and asked that the
defeat the very purpose of making a legacy to him above-mentioned be annulled. Objection
Will. was made in the court below by the husband to the
procedure followed by the petitioner. The court below,
however, held that the proceeding was proper and from will. That was the only question before the court below.
that holding the husband did not appeal. From the the judgment of that court, denying the petition, is
judgment of the court below, the petitioner, Elena accordingly affirmed, with the costs of this instance
Morente, appealed.  against the Appellant. So ordered. 

In its judgment the court denied the petition. It was said,

however, in the decision, as we understand it, that the
husband having married, he had the right to the use of all
the property during his life and that at his death two- [G.R. No. 138731. December 11, 2000]
thirds thereof would pass to Vicente, a brother of the
testatrix, and one-third thereof could be disposed of by
the husband. The construction given to the will by the
court below is not accepted by the Appellant. She claims
that by the mere act of marriage the husband at once lost TESTATE ESTATE OF MARIA
all rights acquired by the will. It is neither alleged nor
proven that any children have been born to the husband
MANUEL Vda. DE
since the death of the testatrix.  BIASCAN, petitioner,
Article 790 of the Civil Code provides that testamentary vs. ROSALINA C.
provisions may be made conditional and article 793 BIASCAN, respondent.
provides that a prohibition against another marriage may
in certain cases be validly imposed upon the widow or
widower. But the question in this case is, Did the testatrix DECISION
intend to impose a condition upon the absolute gift which
is contained in the first clauses of the will? It is to be GONZAGA-REYES, J.:
observed that by the second clause she directs that her
husband shall not leave her sisters. It is provided in the
third clause that he must continue to live in a certain This is a petition for review of the
building. It is provided in the second clause that he shall decision  of the Court of Appeals in CA-G.R.
[1]

not marry again. To no one of these orders is attached the

condition that if he fails to comply with them he shall lose
SP Case No. 44306 affirming the orders dated
the legacy given to him by the first clause of the will. It is October 22, 1996 and February 12, 1997 of the
nowhere expressly said that if he does leave the Regional Trial Court, Branch 4, Manila. These
testatrix’s sisters, or does not continue to dwell in the
building mentioned in the will he shall forfeit the property
orders dismissed the appeal of petitioner from
given him in the first clause; nor is it anywhere expressly the orders dated April 2, 1981 and April 30,
said that if he marries again he shall incur such a loss. But 1985 of the same Regional Trial Court.
it is expressly provided that if one event does happen the
disposition of the property contained in the first clause of The facts of the case are as follows:
the will shall be changed. It is said that if he has children
by anyone, two-thirds of that property shall pass to On June 3, 1975, private respondent
Vicente, the brother of the testatrix. 
Rosalina J. Biascan filed a
We are bound to construe the will with reference to all the petition  denominated as Special Proceeding
[2]

clauses contained therein, and with reference to such No. 98037 at the then Court of First Instance,
surrounding circumstances as duly appear in the case,
and after such consideration we can not say that it was Branch 4, Manila praying for her appointment
the intention of the testatrix that if her husband married as administratrix of the intestate estate of
again he should forfeit the legacy above mentioned. In Florencio Biascan and Timotea Zulueta. In an
other words, there being no express condition attached to
that legacy in reference to the second marriage, we can Order dated August 13, 1975, private
not say that any condition can be implied from the context respondent was appointed as regular
of the will. In the case of Chiong Joc-Soy v. Jaime Vano (8 administratrix of the estates.
Phil. Rep., 119), we held that the legacy contained in the
will therein mentioned was not conditional. It is true that On October 10, 1975, Maria Manuel Vda.
case arose under article 797 of the Civil Code, which
perhaps is not strictly applicable to this case, but we think De Biascan, the legal wife of Florencio Biascan
that it may be argued from what is said in article 797 entered her appearance as Oppositor-Movant
that, in order to make a testamentary provision in SP. Proc. No. 98037.  Simultaneous with her
[3]

conditional, such condition must fairly appear from the

language used in the will.  appearance, she filed a pleading containing
several motions including a motion for
Whether the children mentioned in the second clause of intervention, a motion for the setting aside of
the will are natural children or legitimate children we do
not decide, for no such question is before us, the private respondents appointment as special
contingency mentioned in that part of the clause not administratrix and administratrix, and a motion
having arisen, and we limit ourselves to saying merely for her appointment as administratrix of the
that by the subsequent marriage of the husband he did
not forfeit the legacy given to him by the first part of the estate of Florencio Biascan. [4]
 After an exchange of pleadings between visited Branch 4 of the Regional Trial Court of
the parties, Judge Serafin Cuevas, then Manila to inquire about the status of the
presiding judge of CFI Manila, Branch 4, issued case. The associate checked the records if
an Omnibus Order  dated November 13, 1975
[5]
there was proof of service of the April 30, 1985
which, among others, granted Marias Order to the former counsel of Maria, Atty.
intervention and set for trial the motion to set Marcial F. Lopez, but he discovered that there
aside the Orders appointing respondent as was none.  He was able to secure a
[12]

administratrix. certification  from the Clerk of Court of the

[13]

Regional Trial Court of Manila, Branch 4 which

On April 2, 1981, the trial court issued an
stated that there was no proof of service of the
Order  resolving that: (1) Maria is the lawful
[6]

Order dated April 30, 1985 contained in the

wife of Florencio; (2) respondent and her
records of SP. Proc. No. 98037.
brother are the acknowledged natural children
of Florencio; (3) all three are the legal heirs of A Notice of Appeal  dated April 22, 1996
[14]

Florencio who are entitled to participate in the was filed by petitioner from the Orders dated
settlement proceedings; (4) the motion to set April 2, 1981 and April 30, 1985 of the trial
aside the order appointing private respondent court. While the said notice of appeal was
as administratrix is denied; and (5) the motion dated April 22, 1996, the stamp of the trial
to approve inventory and appraisal of private court on the first page of the notice clearly
respondent be deferred. Maria, through her indicated that the same was received by the
counsel, received a copy of this April 2, 1981 trial court on September 20, 1996. A Record of
Order on April 9, 1981. [7]
Appeal  dated September 20, 1996 was
[15]

likewise filed by petitioner.

On June 6, 1981, or fifty-eight (58) days
after he receipt of the April 2, 1981 Order, On October 22, 1996, the trial court issued
Maria filed her motion for an Order  denying petitioners appeal on the
[16]

reconsideration  which private respondent

[8]
ground that the appeal was filed out of
opposed. [9]
time. The trial court ruled that the April 2, 1981
Order which was the subject of the appeal
On November 15, 1981, the fourth floor of
already became final as the Motion for
the City Hall of Manila was completely gutted
Reconsideration thereof was filed sixty-five (65)
by fire. The records of the settlement
days after petitioner received the same. In
proceedings were among those lost in the
addition, the court ruled that the notice of
fire. Thus, on January 2, 1985, private
appeal itself was filed manifestly late as the
respondent filed a Petition for
same was filed more than 11 years after the
Reconstitution  of the said records.
[10]

issuance of the June 11, 1985 Order denying

Due to the delay caused by the fire and the petitioners Motion for Reconsideration. The
reconstitution of the records, it was only on Motion for Reconsideration dated November
April 30, 1985 that the Regional Trial Court of 13, 1996 of petitioner was likewise denied by
Manila, Branch 4 issued an Order  denying
[11]
the trial court in an Order  dated February 12,
[17]

Marias June 6, 1981 Motion for 1997.

Reconsideration.
Not satisfied with this decision, petitioner
Sometime thereafter, Maria died and her filed a Petition for Certiorari with Prayer for
testate estate also became the subject of Mandatory Injunction  with the Court of
[18]

settlement proceedings. Atty. Marcial F. Lopez Appeals questioning the October 12, 1996 and
was appointed as interim special administrator February 12, 1997 Orders of the Regional Trial
and engaged the services of the Siguion Reyna Court.
Montecillo and Ongsiako Law Offices on Behalf
In a Decision  dated February 16, 1999,
[19]

of the estate.
the First Division of the Court of Appeals
On August 21, 1996, the law firm was denied the petition for certiorari of
allegedly made aware of and given notice of petitioner. Petitioners Motion for
the April 30, 1985 Order when its associate Reconsideration was likewise denied by the
appellate court in a Resolution  dated May 18,
[20] (f) Is the final order or judgment rendered in the case,
1999. and affects the substantial rights of the person
appealing, unless it be an order granting or denying a
Hence, this Petition for Review motion for new trial or for reconsideration.
on Certiorari where petitioner sets forth the
following ground for the reversal of the decision An appeal is allowed in these aforesaid
of the appellate court: cases as these orders, decrees or judgments
issued by a court in a special proceeding
THE FIRST DIVISION OF THE COURT OF constitute a final determination of the rights of
APPEALS (REVIEWING COURT) HAS the parties so appealing.  In contrast, [22]

SANCTIONED THE DEPARTURE BY THE interlocutory orders are not appealable as

REGIONAL TRIAL COURT OF MANILA BRANCH
4 (TRIAL COURT) FROM THE USUAL COURSE
these are merely incidental to judicial
OF JUDICIAL PROCEEDING IN ISSUING THE proceedings. In these cases, the court issuing
ASSAILED 16 FEBRUARY 1999 DECISION AND such orders retains control over the same and
THE 18 MAY 1999 RESOLUTION WHEN IT may thus modify, rescind, or revoke the same
AFFIRMED THE ERRONEOUS FINDING OF THE on sufficient grounds at any time before the
TRIAL COURT THAT THE ORDER DATED APRIL
2, 1981 BECAME FINAL AND EXECUTORY
final judgment. [23]

DESPITE THE FACT THAT NO OPPOSITION ON In the instant case, the Order dated April 2,
ITS TIMELINESS WAS FILED AND MOREOVER
NO RULING AS REGARDS ITS TIMELINESS 1981 of the trial court decreed, among others,
WAS MADE.[21] that Maria Manuel Vda. De Biascan, the lawful
wife of the deceased Florencio Biascan, private
There is no merit in the petition. respondent Rosalina Biascan and her brother,
German Biascan, are entitled to participate in
Section 1, Rule 109 of the Rules of Court the settlement proceedings. Moreover, the said
enumerates the orders and judgments in Order likewise denied Marias motion to set
special proceedings which may be the subject aside the order appointing private respondent
of an appeal. Thus: as regular administratrix of the estate. These
rulings of the trial court were precisely
Section 1. Orders or judgments from which appeals may
be taken. An interested person may appeal in a special
questioned by Maria in her Motion for
proceeding from an order or judgment rendered by a Reconsideration dated June 6, 1981.
Regional Trial Court or a Juvenile and domestic
Relations Court, where such order or judgment:
The ruling of the trial court that Maria,
private respondent Rosalina Biascan and
(a) Allows or disallows a will; German Biascan were entitled to participate in
the settlement proceedings falls squarely under
(b) Determines who are the lawful heirs of a deceased paragraph (b), Section 1, Rule 109 of the Rules
person, or the distributive shares of the estate to which of Court as a proper subject of appeal. By so
such person is entitled; ruling, the trial court has effectively determined
that the three persons are the lawful heirs of
(c) Allows, or disallows, in whole or in part, any claim
the deceased. As such, the same may be the
against the estate of a deceased person, or any claim
presented on behalf of the estate in offset to a claim proper subject of an appeal.
against it;
Similarly, the ruling of the trial court
(d) Settles the account of an executor, administrator,
denying petitioners motion to set aside the
trustee or guardian; order appointing private respondent as the
regular administratrix of the estate of Florencio
(e) Constitutes, in proceedings relating to the settlement Bisacan is likewise a proper subject of an
of the estate of a deceased person, or the administration appeal. We have previously held that an order
of a trustee or guardian, a final determination in the of the trial court appointing a regular
lower court of the rights of the party appealing, except
administrator of a deceased persons estate is a
that no appeal shall be allowed from the appointment of
a special administrator; and final determination of the rights of the parties
thereunder, and is thus, appealable.  This is in
[24]

contrast with an order appointing a special

administrator who is appointed only for a April 30, 1985, the denial was made on
limited time and for a specific grounds other than its failure to ask for a
purpose. Because of the temporary character reconsideration within the period prescribed by
and special character of this appointment, the law. As such, petitioner concludes, any
Rules deem it not advisable for any party to procedural defect attending the Motion for
appeal from said temporary appointment. Reconsideration was deemed cured when the
 Considering however that private respondent
[25]
trial court, in its Order dated April 30, 1985,
has aleready been appointed as regular took cognizance of the same and rendered its
administratrix of the estate of Florencio ruling thereon.
Biascan, her appointment as such may be
There is no merit in this argument.
questioned before the appellate court by way of
appeal. It is well-settled that judgment or orders
become final and executory by operation of law
It is thus clear that the Order dated April 2,
and not by judicial declaration. Thus, finality of
1981 may be the proper subject of an appeal in
a judgment becomes a fact upon the lapse of
a special proceeding. In special proceedings,
the reglementary period of appeal if no appeal
such as the instant proceeding for settlement of
is perfected  or motion for reconsideration or
[27]

estate, the period of appeal from any decision

new trial is filed. The trial court need not even
or final order rendered therein is thirty (30)
pronounce the finality of the order as the same
days, a notice of appeal and a record on
becomes final by operation of law. In fact, the
appeal being required.  The appeal period
[26]

trial court could not even validly entertain a

may only be interrupted by the filing of a motion
motion for reconsideration filed after the lapse
for new trial or reconsideration. Once the
of the period for taking an appeal.  As such, it
[28]

appeal period expires without an appeal or a

is of no moment that the opposing party failed
motion for reconsideration or new trial being
to object to the timeliness of the motion for
perfected, the decision or order becomes final.
reconsideration or that the court denied the
With respect to the Order dated April 2, same on grounds other than timeliness
1981 issued by the trial court, petitioner admits considering that at the time the motion was
that Maria Manuel Vda. De Biascan, its filed, the Order dated April 2, 1981 had already
predecessor-in-interest, received a copy of the become final and executory. Being final and
same of April 9, 1981. Applying these rules, executory, the trial court can no longer alter,
Maria or her counsel had thirty (30) days or modify, or reverse the questioned order.  The
[29]

until May 9 within which to file a notice of subsequent filing of the motion for
appeal with record on appeal. She may also file reconsideration cannot disturb the finality of the
a motion for reconsideration, in which case the judgment or order. [30]

appeal period is deemed interrupted.

Even if we assume that the Motion for
Considering that it was only June 6, 1981, Reconsideration filed by petitioner had the
or a full fifty-eight (58) days after receipt of the effect of suspending the running of the appeal
order, that a motion for reconsideration was period for the April 2, 1981 Order, it is clear
filed, it is clear that the same was filed out of that petitioners notice of appeal of the orders of
time. As such, when the said motion for the trial court was still filed out of time.
reconsideration was filed, there was no more
Under Section 3, Rule 41 of the Rules of
appeal period to interrupt as the Order had
Court then applicable, the time during which a
already become final.
motion to set aside the judgment or order or for
Petitioner insists, however, that the order a new trial shall be deducted from the period
dated April 2, 1981 of the trial court did not from which to make an appeal. The rule further
become final and executory as no opposition states that where the motion was filed during
on its timeliness was filed and no ruling as office hours of the last day of the appeal
regards its timeliness was made. Petitioner period, the appeal must be perfected within the
argues that although its motion for day following that in which the party appealing
reconsideration was denied in the Order dated received notice of the denial of said motion.
 The Order of the trial court denying
petitioners Motion for Reconsideration of the
April 2, 1981 Order was issued on April 30,
1985. Allegedly, petitioner was only made
aware of this April 30, 1985 Order on August
21, 1996 when it inquired from the trial court
about the status of the case. Giving petitioner
the benefit of the doubt that it had indeed
received notice of the order denying its motion
for reconsideration on August 21, 1996, it
follows that petitioner only had until the
following day or on August 22, 1996 within
which to perfect the appeal.
At this point, we note with disapproval
petitioners attempt to pass off its Notice of
Appeal as having been filed on August 22,
1996. In all its pleadings before this Court and
the Court of Appeals, petitioner insists that its
Notice of Appeal was filed the day after it
secured the August 21, 1996 Certification from
the trial court.While the Notice of Appeal was
ostensibly dated August 22, 1996, it is clear
from the stamp  of the trial court that the same
[31]

was received only on September 20,

1996. Moreover, in the Order dated October
22, 1996 of the trial court denying petitioners
appeal, the court clearly stated that the Notice
of Appeal with accompanying Record on
Appeal was filed on September 20, 1996.
Considering that it is clear from the records
that petitioners notice of appeal was filed on
September 20, 1996, the same was clearly
filed out of time as it only had until August 22,
1996 within which to file the said pleading. And
while the rules on special proceedings
recognize that a motion for extension of time to
file the notice of appeal and record of appeal
may be granted, [32]

WHEREFORE, premises considered, we

hereby DISMISS the petition for lack of
merit. The decision dated February 16, 1999
and the Resolution dated May 18, 1999 of the
Court of Appeals are hereby AFFIRMED.
SO ORDERED.