G.R. No.

L-22595             November 1, 1927

Testate Estate of Joseph G. Brimo, JUAN MICIANO, administrator, petitioner-appellee,

vs.
ANDRE BRIMO, opponent-appellant.

Ross, Lawrence and Selph for appellant.

Camus and Delgado for appellee.

ROMUALDEZ, J.:

The partition of the estate left by the deceased Joseph G. Brimo is in question in this case.

The judicial administrator of this estate filed a scheme of partition. Andre Brimo, one of the brothers of the
deceased, opposed it. The court, however, approved it.

The errors which the oppositor-appellant assigns are:

(1) The approval of said scheme of partition; (2) denial of his participation in the inheritance; (3) the denial of the
motion for reconsideration of the order approving the partition; (4) the approval of the purchase made by the Pietro
Lana of the deceased's business and the deed of transfer of said business; and (5) the declaration that the Turkish
laws are impertinent to this cause, and the failure not to postpone the approval of the scheme of partition and the
delivery of the deceased's business to Pietro Lanza until the receipt of the depositions requested in reference to the
Turkish laws.

The appellant's opposition is based on the fact that the partition in question puts into effect the provisions of Joseph
G. Brimo's will which are not in accordance with the laws of his Turkish nationality, for which reason they are void
as being in violation or article 10 of the Civil Code which, among other things, provides the following:

Nevertheless, legal and testamentary successions, in respect to the order of succession as well as to the
amount of the successional rights and the intrinsic validity of their provisions, shall be regulated by the
national law of the person whose succession is in question, whatever may be the nature of the property or
the country in which it may be situated.

But the fact is that the oppositor did not prove that said testimentary dispositions are not in accordance with the
Turkish laws, inasmuch as he did not present any evidence showing what the Turkish laws are on the matter, and in
the absence of evidence on such laws, they are presumed to be the same as those of the Philippines. (Lim and
Lim vs. Collector of Customs, 36 Phil., 472.)

It has not been proved in these proceedings what the Turkish laws are. He, himself, acknowledges it when he desires
to be given an opportunity to present evidence on this point; so much so that he assigns as an error of the court in not
having deferred the approval of the scheme of partition until the receipt of certain testimony requested regarding the
Turkish laws on the matter.

The refusal to give the oppositor another opportunity to prove such laws does not constitute an error. It is
discretionary with the trial court, and, taking into consideration that the oppositor was granted ample opportunity to
introduce competent evidence, we find no abuse of discretion on the part of the court in this particular. There is,
therefore, no evidence in the record that the national law of the testator Joseph G. Brimo was violated in the
testamentary dispositions in question which, not being contrary to our laws in force, must be complied with and
executed. lawphil.net

Therefore, the approval of the scheme of partition in this respect was not erroneous.

In regard to the first assignment of error which deals with the exclusion of the herein appellant as a legatee,
inasmuch as he is one of the persons designated as such in will, it must be taken into consideration that such
exclusion is based on the last part of the second clause of the will, which says:

Second. I like desire to state that although by law, I am a Turkish citizen, this citizenship having been
conferred upon me by conquest and not by free choice, nor by nationality and, on the other hand, having
resided for a considerable length of time in the Philippine Islands where I succeeded in acquiring all of the
property that I now possess, it is my wish that the distribution of my property and everything in connection
with this, my will, be made and disposed of in accordance with the laws in force in the Philippine islands,

1
 requesting all of my relatives to respect this wish, otherwise, I annul and cancel beforehand whatever
disposition found in this will favorable to the person or persons who fail to comply with this request.

The institution of legatees in this will is conditional, and the condition is that the instituted legatees must respect the
testator's will to distribute his property, not in accordance with the laws of his nationality, but in accordance with the
laws of the Philippines.

If this condition as it is expressed were legal and valid, any legatee who fails to comply with it, as the herein
oppositor who, by his attitude in these proceedings has not respected the will of the testator, as expressed, is
prevented from receiving his legacy.

The fact is, however, that the said condition is void, being contrary to law, for article 792 of the civil Code provides
the following:

Impossible conditions and those contrary to law or good morals shall be considered as not imposed and
shall not prejudice the heir or legatee in any manner whatsoever, even should the testator otherwise
provide.

And said condition is contrary to law because it expressly ignores the testator's national law when, according to
article 10 of the civil Code above quoted, such national law of the testator is the one to govern his testamentary
dispositions.

Said condition then, in the light of the legal provisions above cited, is considered unwritten, and the institution of
legatees in said will is unconditional and consequently valid and effective even as to the herein oppositor.

It results from all this that the second clause of the will regarding the law which shall govern it, and to the condition
imposed upon the legatees, is null and void, being contrary to law.

All of the remaining clauses of said will with all their dispositions and requests are perfectly valid and effective it
not appearing that said clauses are contrary to the testator's national law.

Therefore, the orders appealed from are modified and it is directed that the distribution of this estate be made in such
a manner as to include the herein appellant Andre Brimo as one of the legatees, and the scheme of partition
submitted by the judicial administrator is approved in all other respects, without any pronouncement as to costs.

So ordered.

Street, Malcolm, Avanceña, Villamor and Ostrand, JJ., concur.

G.R. No. L-36342             October 8, 1932

In re Will of Francisco Varela Calderon, deceased.

FRANCISCO CARMELO VARELA, petitioner-appellee,
vs.
MIGUEL VARELA CALDERON, ET AL., opponents-appellants

Araneta De Joya, Zaragoza and Araneta for appellants.

Eduardo Gutierrez Repide for appellee.

IMPERIAL, J.:

This is an appeal taken by Miguel Varela Calderon, Angel Varela Calderon, Jesus Varela Calderon, Trinidad Varela
Calderon, Paula Varela Calderon, Pilar Varela Calderon and Maria Varela Calderon from the judgment rendered by
the Honorable Mariano A. Albert, Judge of the Court of First Instance of Manila, ordering the allowance and probate
of the document marked Exhibit B as the last will and testament of the late Francisco Varela Calderon.

The deceased, a physician by profession, was a Filipino citizen resident of the City of Manila where he owned real
properties assessed at P188,017.81. He traveled abroad for his health and temporarily resided in Hendaye-Plage,
France. Not feeling very well, but in the full enjoyment of his mental faculties, he decided to make his last will and

2
testament (Exhibit B), on April 14, 1930, in Paris, France, with the assistance of attorneys F. de Roussy de Sales,
Gething C. Miller and Henri Gadd. Sometime later, that is on July 15, 1930, he died in the Grand-Hotel de Leysin
Sanatorium in Switzerland.

On September 20, 1930, the herein petitioner-appellee, Francisco Carmelo Varela, filed a petition in the Court of
First Instance of the City of Manila, praying that said will be admitted to probate. Said petition was opposed by the
deceased's brother Jose Miguel, Angel, Jesus, Trinidad, Paula, Pilar and Maria, surnamed Varela Calderon,
although, later on, the first mentioned opponent withdrew his opposition giving as his reason therefor that it was out
of respect for the testator's wishes because the will was executed in his own handwriting. The grounds of the
opposition are as follows: (a) That the will sought to be probate was not holographic in character and did not comply
with the requisites prescribed by article 970 of the French Civil Code; (b) that the witnesses to the will did not
possess the qualifications required by article 980 of the French Civil Code; (c) that for not having complied with the
requisites prescribed by the French law, said will is null and void; (d) that neither has it the character of an open
will, not having been executed in accordance with article 1001 of the French Civil Code; and (e) that the provisions
of article 1007 of the same Code relative to the recording of wills were not complied with in connection with the
will in question.

The appellants assign the following errors alleged to have been committed by the trial court:

1. The trial court erred in declaring that Exhibit B, purporting to be the last will and testament of the
deceased Francisco Varela Calderon, was a valid holographic will made and executed, in accordance with
the laws of the French Republic.

2. The trial court, therefore, erred in allowing and admitting to probate said document Exhibit B, as the last
will and testament of the deceased Francisco Varela Calderon.

In view of the nature of both assignments of error and of the arguments advanced in their support, we shall discuss
them jointly.

The will in question, Exhibit B, as translated into English reads as follows:

I. FRANCISCO VARELA CALDERON, Doctor in Medicine, bachelor, citizen of the Philippine

Islands and subject of the United States of America, borne and domiciled at Manila, Philippine
Islands, and actually residing temporarily at Hendaye-Plage, France, I declare that the followings
are my act of last wills and my testament:

1. I revoke all testamentary dispositions made by myself before this day.

2. I desire that the inhumation of my body be made without any ceremony.

3. I give and bequeath to my children FRANCISCO CARMELO VARELA borne at

Madrid on the twenty fourth of November nineteen hundred five and to CARMEN
VARELA borne at Manila, Philippine Islands, on the fourth of October nineteen hundred
seven who live both actually with me, the totality of my personal properties, real estates
and mixed including those on which I could have the power of disposition or designation
whatsoever, by equal parts in all properties, instituting them my residuary legatee.

4. I name for my testamentary executor, without bail, my son, FRANCISCO CARMELO

VARELA, to his default my daughter CARMEN VARELA to the default of this one my
brother MIGUEL VARELA CALDERON and to the default of my brother, Mr.
ANTONIO GUTIERREZ DEL CAMPO.

In witness whereof I have in this one my act of last wills and testament, written dated and signed
entirely by my hand, applied my signature and my seal at Paris, this fourteenth of April nineteen
hundred thirty.

(Sgd.) FRANCISCO VARELA CALDERON (L. S.)          

(Sgd.) HENRI GADD          
(Sgd.) TH. PEYROT          

Signed, sealed, published and declared by the testator above mentioned, FRANCISCO VARELA
CALDERON, on the 14 April 1930, as being his act of last wills and his testament in the presence
of we, who at his request, in his presence, and in the presence of one another, have to these
presents applied our signatures as witnesses:

3
 (Sgd.) F. DE ROUSSY DE SALES,          
39 rue la Boetie, Paris, France.          

(Sgd.) GETHING C. MILLER,          

39 rue la Boetie, Paris, France.          

(Sgd.) HENRI GADD,          

39 rue la Boetie, Paris, France.          

Pour traduction certifiee conforme,

Manille, le 15 september 1930.

The original will was executed in the French language and had been written, dated and signed by the testator with
his own hand, with the exception of the attestation clause which appears at the bottom of the document. This fact is
proved by the testimony of the appellee and his other witnesses, including the depositions, and is admitted by the
appellants.

The petition for the allowance and probate of said will is based on the provisions of article 970 of the French Civil
Code which considers as a holographic will that which is made or executed, dated and signed by the testator in his
own handwriting without the necessity of any other formality, and on section 635 of the Code of Civil Procedure in
force in this jurisdiction which provides that a will made out of the Philippine Islands in accordance with the laws in
force in the country in which it was made and which may be allowed and admitted to probate therein, may, also be
proved, allowed and recorded in the Philippine Islands in the same manner and with the same effect as if executed in
the latter country. Both provisions of law literally copied from the English text, read as follows:

(Article 970, French Civil Code)

A holographic will is not valid unless it is entirely written, dated, and signed by the testator. No other
formality is required.

(Article 635, Code of Civil Procedure)

Will made out of the Philippine Islands. — A will made out of the Philippine Islands which might be
proved and allowed by the laws of the state or country in which it was made, may be proved, allowed, and
recorded in the Philippine Islands, and shall have the same effect as if executed according to the laws of
these Islands.

As we have already said, it is an admitted fact that the will was written, dated and signed by the deceased testator,
for which reason, there is no doubt that it had been made and executed in accordance with article 970 of the French
Civil Code were it not for the attestation clause which appears at the bottom of the document.

The appellants contend that the addition of said of clause has entirely vitiated the will, because it ceased to be a
holographic will, neither does it possess the requisites of a public or open will in accordance with the French law.
The court which originally took cognizance of the case decided that such circumstance does not invalidate the will.
We concur in said opinion and hold that a clause drawn up in such manner is superfluous and does not affect in any
way the essential requisites prescribed for holographic wills by the French law, and, consequently, it has not
invalidated the will nor deprived it of its holographic character. In reaching this conclusion, we base our opinion not
only on the clear and conclusive provisions of article 970 of the French Civil Code and on the decisions of the
French Court of Appeals cited in the appelee's brief, but principally on the fact established in the depositions made
by practicing attorneys F. de Roussy de Sales, Gething C. Miller and Henri Gadd of Paris, France, who emphatically
declared that the will in question did not lose its holographic character by the addition of the aforementioned
attestation clause and that it may be allowed to probate in conformity with the French laws under which it had been
made and executed.

In view of the foregoing, we believe it unnecessary to consider and pass upon the other grounds invoked by the
opposition consisting in the incapacity of the three witnesses who signed at the end of the attestation clause and the
absence of the requisites prescribed by the French Civil Code for the execution of open wills, inasmuch as the
attorney for the appellee has conclusively proved that the will in question is holographic, and we have so held and
decided.1awphil.net

The order appealed from, being in conformity with the law, is hereby affirmed in toto, with costs against the
appellants. So ordered.

Avanceña, C.J., Malcolm, Villamor, Ostrand, Villa-Real, Abad Santos, Hull, Vickers and Butte, JJ., concur.

4
G.R. No. L-2200             August 2, 1950

In re Will of Victor Bilbao. RAMON N. BILBAO, petitioner-appellant,

vs.
DALMACIO BILBAO, CLEOFAS BILBAO, EUSEBIA BILBAO, CATALINA BILBAO, FILEMON
ABRINGE and FRANCISCO ACADEMIA, oppositors-appellee.

Pedro Basa, Lamberto Macias and Francisco R. Capistrano for appellant.

Perpetuo A. Sandiong and Quinciano Vailoces for appellees.

MONTEMAYOR, J.:

This is an appeal from a decision of the Court of First Instance of Negros Oriental denying the petition for admission
to probate of the last will and testament of Victor S. Bilbao who died on July 13, 1943, which petition was filed by
his widow and cotestator Ramona M. Navarro.

The will in question was executed on October 6, 1931, on a single page or sheet by the deceased Victor Bilbao
jointly with his wife Ramona M. Navarro. The two testators in their testament directed that "all of our respective
private properties both real and personal, and all of our conjugal properties, and any other property belonging to
either or both of us, be given and transmitted to anyone or either of us, who may survive the other, or who may
remain the surviving spouse of the other."

The petition for probate was opposed by one Filemon Abringe, a near relative of the deceased, among other grounds,
that the alleged will was executed by the husband and wife for their reciprocal benefit and therefore not valid, and
that it was not executed and attested to as required by law. After hearing, the trial court found the will to have been
executed conjointly by the deceased husband and wife for their reciprocal benefit, and that a will of that kind is
neither contemplated by Act No. 190, known as the Code of Civil Procedure nor permitted by article 669 of the
Civil Code which provides:

Two or more persons cannot make a will conjointly or in the same instrument, either for their reciprocal
benefit or for the benefit of a third person.

The only assignment of error made in the appeal is that "the lower court erred in not finding that a joint and
reciprocal will particularly between husband and wife is valid under the present law." The thesis of the appellant is,
that "Chapter XXXI, particularly sections 614, 618, Act 190, appears to be a complete enactment on the subject of
execution of wills and may thus be regarded as the expression of the whole law thereon, and that it must be deemed
to have impliedly repealed the provision of the Civil Code (Title III, Chapter I) on the matter ;" that inasmuch as the
present law on wills as embodied in the Code of Civil Procedure has been taken from American law, it should be
interpreted in accordance with the said law, and because joint and reciprocal wills are neither regarded as invalid nor
on the contrary they are allowed, then article 669 of the Civil Code prohibiting the execution of joint wills whether
reciprocal or for the benefit of a third party should be considered as having been repealed and superseded by the new
law.

We have made a rather extensive study of the cases decided by our Supreme Court covering the field of wills, with
particular attention to any reference to or ruling on article 669 of the Civil Code but we have failed to find any case
wherein that particular codal provision has been discussed or applied, declaring it either repealed or still in force.
The sole question and issue squarely raised in this appeal is, therefore one of first impression and naturally we are
constrained to act and to proceed with care and caution, realizing the importance and far-reaching effects of any
doctrine to be laid down by us in the present case.

We cannot agree to the contention of the appellant that the provisions of the Code of Civil Procedure on wills have
completely superseded Chapter I, Title III of the Civil Code on the same subject matter, resulting in the complete
repeal of said Civil Code provisions. In the study we have made of this subject, we have found a number of cases
decided by this court wherein several articles of the Civil Code regarding wills have not only been referred to but
have also been applied side by side with the provisions of the Code of Civil Procedure.

In the case of in the matter of the will Kabigting (14 Phil., 463), where the will was executed in the year 1908,
articles 662 and 663 of the Civil Code regarding capacity and incapacity of persons to dispose by will, have been
cited and applied together with section 618 of the Code of Civil Procedure regarding requisites of wills.

In the case of Torres and Lopez De Bueno vs. Lopez (48 Phil., 772), article 666 of the Civil Code regarding mental
capacity of the testator has been cited and applied together with section 614 and 634 of the Code of Civil Procedure
regarding a will executed in 1924.

5
In the case of Marin vs. Nacianceno (19 Phil., 238), article 667 of the Civil Code was cited in the dissenting opinion
of Mr. Justice Torres.

In the cases of Postigo vs. Borjal (13 Phil., 240); In re Estate of Calderon (26 Phil., 333); Natividad vs. Gabino (36
Phil., 663) wherein the wills involved had been executed after the enactment of the Code of Civil Procedure,
particularly the sections regarding wills, article 675 of the Civil Code regarding interpretation of wills was cited and
applied.

In the case of Samson vs. Naval (41 Phil., 838), article 739 of the Civil Code regarding revocation of wills has been
applied in harmony with section 623 of the Code of Civil Procedure. The will involved was executed in 1915 when
the Code of Civil Procedure was already in force.

The above-cited authorities all go to show that it is not exactly correct to say that the provisions of the Code of Civil
Procedure regarding wills completely cover the subject matter and therefore have superseded the provisions of the
Civil Code on the point.

It is also contended that in the case of Macrohon Ong Ham vs. Saavedra (51 Phil., 267) a will executed in the year
1923, which was made jointly by husband and wife in the same instrument, was admitted to probate by the Court of
First Instance of Zamboanga and the decision was affirmed by this court, thereby proving that this tribunal has
disregarded the prohibition regarding the execution of wills conjointly under article 669 of the Civil Code, meaning
that said article has already been repealed. After examining said case we find the contention untenable. It is true that
the will already described was allowed probate by the trial court, but there was no appeal from the order approving
the will on the ground of its validity, but only on the manner the properties involved were to be distributed or
otherwise disposed of. The Supreme Court never touched this point of invalidity nor the applicability of article 669
of the Civil Code, but merely ruled that a testator may die both testate and intestate, depending upon the properties
sought to be disposed of by him and those to be inherited by his heirs on intestate succession when not covered by
the will. As a rule this Tribunal does not pass upon the legality, enforceability, or applicability of a law unless that
the point is raised and put in issue, and it is necessary to rule upon it in order to determine the case.

The provision of article 669 of the Civil Code prohibiting the execution of a will by two or more persons conjointly
or in the same instrument either for their reciprocal benefit or for the benefit of a third person, is not unwise and is
not against public policy. The reason for this provision, especially as regards husbands and wife is that when a will
is made jointly or in the same instrument, the spouse who is more aggressive, stronger in will or character and
dominant is liable to dictate the terms of the will for his or her own benefit or for that of third persons whom he or
she desires to favor. And, where the will is not only joint but reciprocal, either one of the spouses who may happen
to be unscrupulous, wicked, faithless, or desperate, knowing as he or she does the terms of the will whereby the
whole property of the spouses both conjugal and paraphernal goes to the survivor, may be tempted to kill or dispose
of the other.

Considering the wisdom of the provisions of this article 669 and the fact that it has not been repealed, at least not
expressly, as well as the consideration that its provisions are not incompatible with those of the Code of Civil
Procedure on the subject of wills, we believe and rule that said article 669 of the Civil Code is still in force. And we
are not alone in this opinion. Mr. Justice Willard as shown by his notes on the Civil Code, on page 18 believes that
this article 669 is still in force. Sinco and Capistrano in their work on the Civil Code, Vol. II, page 33, favorably cite
Justice Willard's opinion that this article is still in force. Judge Camus in his book on the Civil Code does not include
this article among those he considers repealed. Lastly, we find that this article 669 has been reproduced word for
word in article 818 of the New Civil Code (Republic Act No. 386). The implication is that the Philippine Legislature
that passed this Act and approved the New Civil Code, including the members of the Code Commission who
prepared it, are of the opinion that the provisions of article 669 of the old Civil Code are not incompatible with those
of the Code of Civil Procedure.

In the case of Testate estate of the late Bernabe Rodriguez (CA-G.R. No. 1627 -R, July 1, 1948; 46 Off. Gaz.,
reference to this article 669 of the Civil Code, though indirectly. In the will involved therein, the testator Rodriguez
instituted his wife his universal heir and the latter in her separate will equally instituted her husband Rodriguez as
her universal heir; in other words they were reciprocal beneficiaries in their respective separate wills. Opposition to
the probate of the will of Rodriguez was base on the prohibition contained in article 669 of the Civil Code. The
Court of Appeals said that what the law prohibits under said article is two or more persons making a will conjointly
or in the same instrument and not reciprocity in separate wills.

In conclusion, we believe and hold that the provision of the Code of Civil procedure regarding wills have not
repealed all the articles of the old Civil Code on the same subject matter, and that article 669 of the Civil Code is not
incompatible or inconsistent with said provision of the Article 669 of the Civil Code is still in force.

In view of the foregoing, the decision appealed form, is hereby affirmed, with costs.

Ozaeta, Pablo, Bengzon, Tuason, and Reyes JJ., concur.

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G.R. No. L-7188             August 9, 1954

In re: Will and Testament of the deceased REVEREND SANCHO ABADIA.

SEVERINA A. VDA. DE ENRIQUEZ, ET AL., petitioners-appellees,
vs.
MIGUEL ABADIA, ET AL., oppositors-appellants.

Manuel A. Zosa, Luis B. Ladonga, Mariano A. Zosa and B. G. Advincula for appellants.
C. de la Victoria for appellees.

MONTEMAYOR, J.:

On September 6, 1923, Father Sancho Abadia, parish priest of Talisay, Cebu, executed a document purporting to be
his Last Will and Testament now marked Exhibit "A". Resident of the City of Cebu, he died on January 14, 1943, in
the municipality of Aloguinsan, Cebu, where he was an evacuee. He left properties estimated at P8,000 in value. On
October 2, 1946, one Andres Enriquez, one of the legatees in Exhibit "A", filed a petition for its probate in the Court
of First Instance of Cebu. Some cousins and nephews who would inherit the estate of the deceased if he left no will,
filed opposition.

During the hearing one of the attesting witnesses, the other two being dead, testified without contradiction that in his
presence and in the presence of his co-witnesses, Father Sancho wrote out in longhand Exhibit "A" in Spanish which
the testator spoke and understood; that he (testator) signed on he left hand margin of the front page of each of the
three folios or sheets of which the document is composed, and numbered the same with Arabic numerals, and finally
signed his name at the end of his writing at the last page, all this, in the presence of the three attesting witnesses after
telling that it was his last will and that the said three witnesses signed their names on the last page after the
attestation clause in his presence and in the presence of each other. The oppositors did not submit any evidence.

The learned trial court found and declared Exhibit "A" to be a holographic will; that it was in the handwriting of the
testator and that although at the time it was executed and at the time of the testator's death, holographic wills were
not permitted by law still, because at the time of the hearing and when the case was to be decided the new Civil
Code was already in force, which Code permitted the execution of holographic wills, under a liberal view, and to
carry out the intention of the testator which according to the trial court is the controlling factor and may override any
defect in form, said trial court by order dated January 24, 1952, admitted to probate Exhibit "A", as the Last Will
and Testament of Father Sancho Abadia. The oppositors are appealing from that decision; and because only
questions of law are involved in the appeal, the case was certified to us by the Court of Appeals.

The new Civil Code (Republic Act No. 386) under article 810 thereof provides that a person may execute a
holographic will which must be entirely written, dated and signed by the testator himself and need not be witnessed.
It is a fact, however, that at the time that Exhibit "A" was executed in 1923 and at the time that Father Abadia died
in 1943, holographic wills were not permitted, and the law at the time imposed certain requirements for the
execution of wills, such as numbering correlatively each page (not folio or sheet) in letters and signing on the left
hand margin by the testator and by the three attesting witnesses, requirements which were not complied with in
Exhibit "A" because the back pages of the first two folios of the will were not signed by any one, not even by the
testator and were not numbered, and as to the three front pages, they were signed only by the testator.

Interpreting and applying this requirement this Court in the case of In re Estate of Saguinsin, 41 Phil., 875, 879,
referring to the failure of the testator and his witnesses to sign on the left hand margin of every page, said:

. . . . This defect is radical and totally vitiates the testament. It is not enough that the signatures
guaranteeing authenticity should appear upon two folios or leaves; three pages having been written on, the
authenticity of all three of them should be guaranteed by the signature of the alleged testatrix and her
witnesses.

And in the case of Aspe vs. Prieto, 46 Phil., 700, referring to the same requirement, this Court declared:

From an examination of the document in question, it appears that the left margins of the six pages of the
document are signed only by Ventura Prieto. The noncompliance with section 2 of Act No. 2645 by the
attesting witnesses who omitted to sign with the testator at the left margin of each of the five pages of the
document alleged to be the will of Ventura Prieto, is a fatal defect that constitutes an obstacle to its probate.

What is the law to apply to the probate of Exh. "A"? May we apply the provisions of the new Civil Code which not
allows holographic wills, like Exhibit "A" which provisions were invoked by the appellee-petitioner and applied by
the lower court? But article 795 of this same new Civil Code expressly provides: "The validity of a will as to its

7
form depends upon the observance of the law in force at the time it is made." The above provision is but an
expression or statement of the weight of authority to the affect that the validity of a will is to be judged not by the
law enforce at the time of the testator's death or at the time the supposed will is presented in court for probate or
when the petition is decided by the court but at the time the instrument was executed. One reason in support of the
rule is that although the will operates upon and after the death of the testator, the wishes of the testator about the
disposition of his estate among his heirs and among the legatees is given solemn expression at the time the will is
executed, and in reality, the legacy or bequest then becomes a completed act. This ruling has been laid down by this
court in the case of In re Will of Riosa, 39 Phil., 23. It is a wholesome doctrine and should be followed.

Of course, there is the view that the intention of the testator should be the ruling and controlling factor and that all
adequate remedies and interpretations should be resorted to in order to carry out said intention, and that when
statutes passed after the execution of the will and after the death of the testator lessen the formalities required by law
for the execution of wills, said subsequent statutes should be applied so as to validate wills defectively executed
according to the law in force at the time of execution. However, we should not forget that from the day of the death
of the testator, if he leaves a will, the title of the legatees and devisees under it becomes a vested right, protected
under the due process clause of the constitution against a subsequent change in the statute adding new legal
requirements of execution of wills which would invalidate such a will. By parity of reasoning, when one executes a
will which is invalid for failure to observe and follow the legal requirements at the time of its execution then upon
his death he should be regarded and declared as having died intestate, and his heirs will then inherit by intestate
succession, and no subsequent law with more liberal requirements or which dispenses with such requirements as to
execution should be allowed to validate a defective will and thereby divest the heirs of their vested rights in the
estate by intestate succession. The general rule is that the Legislature can not validate void wills (57 Am. Jur., Wills,
Sec. 231, pp. 192-193).

In view of the foregoing, the order appealed from is reversed, and Exhibit "A" is denied probate. With costs.

Paras, C.J., Pablo, Bengzon, Padilla, Reyes, A., Jugo, Bautista Angelo, Labrador, Concepcion and Reyes J.B.L.,
JJ., concur.

G.R. No. L-54919 May 30, 1984

POLLY CAYETANO, petitioner,
vs.
HON. TOMAS T. LEONIDAS, in his capacity as the Presiding Judge of Branch XXXVIII, Court of First
Instance of Manila and NENITA CAMPOS PAGUIA, respondents.

Ermelo P. Guzman for petitioner.

Armando Z. Gonzales for private respondent.

GUTIERREZ, JR., J.:

This is a petition for review on certiorari, seeking to annul the order of the respondent judge of the Court of First
Instance of Manila, Branch XXXVIII, which admitted to and allowed the probate of the last will and testament of
Adoracion C. Campos, after an ex-parte presentation of evidence by herein private respondent.

On January 31, 1977, Adoracion C. Campos died, leaving her father, petitioner Hermogenes Campos and her sisters,
private respondent Nenita C. Paguia, Remedios C. Lopez and Marieta C. Medina as the surviving heirs. As
Hermogenes Campos was the only compulsory heir, he executed an Affidavit of Adjudication under Rule 74,
Section I of the Rules of Court whereby he adjudicated unto himself the ownership of the entire estate of the
deceased Adoracion Campos.

Eleven months after, on November 25, 1977, Nenita C. Paguia filed a petition for the reprobate of a will of the
deceased, Adoracion Campos, which was allegedly executed in the United States and for her appointment as
administratrix of the estate of the deceased testatrix.

In her petition, Nenita alleged that the testatrix was an American citizen at the time of her death and was a
permanent resident of 4633 Ditman Street, Philadelphia, Pennsylvania, U.S.A.; that the testatrix died in Manila on
January 31, 1977 while temporarily residing with her sister at 2167 Leveriza, Malate, Manila; that during her
lifetime, the testatrix made her last wig and testament on July 10, 1975, according to the laws of Pennsylvania,
U.S.A., nominating Wilfredo Barzaga of New Jersey as executor; that after the testatrix death, her last will and
testament was presented, probated, allowed, and registered with the Registry of Wins at the County of Philadelphia,
U.S.A., that Clement L. McLaughlin, the administrator who was appointed after Dr. Barzaga had declined and

8
waived his appointment as executor in favor of the former, is also a resident of Philadelphia, U.S.A., and that
therefore, there is an urgent need for the appointment of an administratrix to administer and eventually distribute the
properties of the estate located in the Philippines.

On January 11, 1978, an opposition to the reprobate of the will was filed by herein petitioner alleging among other
things, that he has every reason to believe that the will in question is a forgery; that the intrinsic provisions of the
will are null and void; and that even if pertinent American laws on intrinsic provisions are invoked, the same could
not apply inasmuch as they would work injustice and injury to him.

On December 1, 1978, however, the petitioner through his counsel, Atty. Franco Loyola, filed a Motion to Dismiss
Opposition (With Waiver of Rights or Interests) stating that he "has been able to verify the veracity thereof (of the
will) and now confirms the same to be truly the probated will of his daughter Adoracion." Hence, an ex-
parte presentation of evidence for the reprobate of the questioned will was made.

On January 10, 1979, the respondent judge issued an order, to wit:

At the hearing, it has been satisfactorily established that Adoracion C. Campos, in her lifetime,
was a citizen of the United States of America with a permanent residence at 4633 Ditman Street,
Philadelphia, PA 19124, (Exhibit D) that when alive, Adoracion C. Campos executed a Last Will
and Testament in the county of Philadelphia, Pennsylvania, U.S.A., according to the laws thereat
(Exhibits E-3 to E-3-b) that while in temporary sojourn in the Philippines, Adoracion C. Campos
died in the City of Manila (Exhibit C) leaving property both in the Philippines and in the United
States of America; that the Last Will and Testament of the late Adoracion C. Campos was
admitted and granted probate by the Orphan's Court Division of the Court of Common Pleas, the
probate court of the Commonwealth of Pennsylvania, County of Philadelphia, U.S.A., and letters
of administration were issued in favor of Clement J. McLaughlin all in accordance with the laws
of the said foreign country on procedure and allowance of wills (Exhibits E to E-10); and that the
petitioner is not suffering from any disqualification which would render her unfit as administratrix
of the estate in the Philippines of the late Adoracion C. Campos.

WHEREFORE, the Last Will and Testament of the late Adoracion C. Campos is hereby admitted
to and allowed probate in the Philippines, and Nenita Campos Paguia is hereby appointed
Administratrix of the estate of said decedent; let Letters of Administration with the Will annexed
issue in favor of said Administratrix upon her filing of a bond in the amount of P5,000.00
conditioned under the provisions of Section I, Rule 81 of the Rules of Court.

Another manifestation was filed by the petitioner on April 14, 1979, confirming the withdrawal of his opposition,
acknowledging the same to be his voluntary act and deed.

On May 25, 1979, Hermogenes Campos filed a petition for relief, praying that the order allowing the will be set
aside on the ground that the withdrawal of his opposition to the same was secured through fraudulent means.
According to him, the "Motion to Dismiss Opposition" was inserted among the papers which he signed in
connection with two Deeds of Conditional Sales which he executed with the Construction and Development
Corporation of the Philippines (CDCP). He also alleged that the lawyer who filed the withdrawal of the opposition
was not his counsel-of-record in the special proceedings case.

The petition for relief was set for hearing but the petitioner failed to appear. He made several motions for
postponement until the hearing was set on May 29, 1980.

On May 18, 1980, petitioner filed another motion entitled "Motion to Vacate and/or Set Aside the Order of January
10, 1979, and/or dismiss the case for lack of jurisdiction. In this motion, the notice of hearing provided:

Please include this motion in your calendar for hearing on May 29, 1980 at 8:30 in the morning for
submission for reconsideration and resolution of the Honorable Court. Until this Motion is
resolved, may I also request for the future setting of the case for hearing on the Oppositor's motion
to set aside previously filed.

The hearing of May 29, 1980 was re-set by the court for June 19, 1980. When the case was called for hearing on this
date, the counsel for petitioner tried to argue his motion to vacate instead of adducing evidence in support of the
petition for relief. Thus, the respondent judge issued an order dismissing the petition for relief for failure to present
evidence in support thereof. Petitioner filed a motion for reconsideration but the same was denied. In the same order,
respondent judge also denied the motion to vacate for lack of merit. Hence, this petition.

Meanwhile, on June 6,1982, petitioner Hermogenes Campos died and left a will, which, incidentally has been
questioned by the respondent, his children and forced heirs as, on its face, patently null and void, and a fabrication,

9
appointing Polly Cayetano as the executrix of his last will and testament. Cayetano, therefore, filed a motion to
substitute herself as petitioner in the instant case which was granted by the court on September 13, 1982.

A motion to dismiss the petition on the ground that the rights of the petitioner Hermogenes Campos merged upon his
death with the rights of the respondent and her sisters, only remaining children and forced heirs was denied on
September 12, 1983.

Petitioner Cayetano persists with the allegations that the respondent judge acted without or in excess of his
jurisdiction when:

1) He ruled the petitioner lost his standing in court deprived the Right to Notice (sic) upon the
filing of the Motion to Dismiss opposition with waiver of rights or interests against the estate of
deceased Adoracion C. Campos, thus, paving the way for the hearing ex-parte of the petition for
the probate of decedent will.

2) He ruled that petitioner can waive, renounce or repudiate (not made in a public or authenticated
instrument), or by way of a petition presented to the court but by way of a motion presented prior
to an order for the distribution of the estate-the law especially providing that repudiation of an
inheritance must be presented, within 30 days after it has issued an order for the distribution of the
estate in accordance with the rules of Court.

3) He ruled that the right of a forced heir to his legitime can be divested by a decree admitting a
will to probate in which no provision is made for the forced heir in complete disregard of Law of
Succession

4) He denied petitioner's petition for Relief on the ground that no evidence was adduced to support
the Petition for Relief when no Notice nor hearing was set to afford petitioner to prove the merit of
his petition — a denial of the due process and a grave abuse of discretion amounting to lack of
jurisdiction.

5) He acquired no jurisdiction over the testate case, the fact that the Testator at the time of death
was a usual resident of Dasmariñas, Cavite, consequently Cavite Court of First Instance has
exclusive jurisdiction over the case (De Borja vs. Tan, G.R. No. L-7792, July 1955).

The first two issues raised by the petitioner are anchored on the allegation that the respondent judge acted with grave
abuse of discretion when he allowed the withdrawal of the petitioner's opposition to the reprobate of the will.

We find no grave abuse of discretion on the part of the respondent judge. No proof was adduced to support
petitioner's contention that the motion to withdraw was secured through fraudulent means and that Atty. Franco
Loyola was not his counsel of record. The records show that after the firing of the contested motion, the petitioner at
a later date, filed a manifestation wherein he confirmed that the Motion to Dismiss Opposition was his voluntary act
and deed. Moreover, at the time the motion was filed, the petitioner's former counsel, Atty. Jose P. Lagrosa had long
withdrawn from the case and had been substituted by Atty. Franco Loyola who in turn filed the motion. The present
petitioner cannot, therefore, maintain that the old man's attorney of record was Atty. Lagrosa at the time of filing the
motion. Since the withdrawal was in order, the respondent judge acted correctly in hearing the probate of the
will ex-parte, there being no other opposition to the same.

The third issue raised deals with the validity of the provisions of the will. As a general rule, the probate court's
authority is limited only to the extrinsic validity of the will, the due execution thereof, the testatrix's testamentary
capacity and the compliance with the requisites or solemnities prescribed by law. The intrinsic validity of the will
normally comes only after the court has declared that the will has been duly authenticated. However, where practical
considerations demand that the intrinsic validity of the will be passed upon, even before it is probated, the court
should meet the issue. (Maninang vs. Court of Appeals, 114 SCRA 478).

In the case at bar, the petitioner maintains that since the respondent judge allowed the reprobate of Adoracion's will,
Hermogenes C. Campos was divested of his legitime which was reserved by the law for him.

This contention is without merit.

Although on its face, the will appeared to have preterited the petitioner and thus, the respondent judge should have
denied its reprobate outright, the private respondents have sufficiently established that Adoracion was, at the time of
her death, an American citizen and a permanent resident of Philadelphia, Pennsylvania, U.S.A. Therefore, under
Article 16 par. (2) and 1039 of the Civil Code which respectively provide:

Art. 16 par. (2).

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 xxx xxx xxx

However, intestate and testamentary successions, both with respect to the order of succession and
to the amount of successional rights and to the intrinsic validity of testamentary provisions, shall
be regulated by the national law of the person whose succession is under consideration, whatever
may be the nature of the property and regardless of the country wherein said property may be
found.

Art. 1039.

Capacity to succeed is governed by the law of the nation of the decedent.

the law which governs Adoracion Campo's will is the law of Pennsylvania, U.S.A., which is the national law of the
decedent. Although the parties admit that the Pennsylvania law does not provide for legitimes and that all the estate
may be given away by the testatrix to a complete stranger, the petitioner argues that such law should not apply
because it would be contrary to the sound and established public policy and would run counter to the specific
provisions of Philippine Law.

It is a settled rule that as regards the intrinsic validity of the provisions of the will, as provided for by Article 16(2)
and 1039 of the Civil Code, the national law of the decedent must apply. This was squarely applied in the case
of Bellis v. Bellis (20 SCRA 358) wherein we ruled:

It is therefore evident that whatever public policy or good customs may be involved in our system
of legitimes, Congress has not intended to extend the same to the succession of foreign nationals.
For it has specifically chosen to leave, inter alia, the amount of successional rights, to the
decedent's national law. Specific provisions must prevail over general ones.

xxx xxx xxx

The parties admit that the decedent, Amos G. Bellis, was a citizen of the State of Texas, U.S.A.,
and under the law of Texas, there are no forced heirs or legitimes. Accordingly, since the intrinsic
validity of the provision of the will and the amount of successional rights are to be determined
under Texas law, the Philippine Law on legitimes cannot be applied to the testacy of Amos G.
Bellis.

As regards the alleged absence of notice of hearing for the petition for relief, the records wig bear the fact that what
was repeatedly scheduled for hearing on separate dates until June 19, 1980 was the petitioner's petition for relief and
not his motion to vacate the order of January 10, 1979. There is no reason why the petitioner should have been led to
believe otherwise. The court even admonished the petitioner's failing to adduce evidence when his petition for relief
was repeatedly set for hearing. There was no denial of due process. The fact that he requested "for the future setting
of the case for hearing . . ." did not mean that at the next hearing, the motion to vacate would be heard and given
preference in lieu of the petition for relief. Furthermore, such request should be embodied in a motion and not in a
mere notice of hearing.

Finally, we find the contention of the petition as to the issue of jurisdiction utterly devoid of merit. Under Rule 73,
Section 1, of the Rules of Court, it is provided that:

SECTION 1. Where estate of deceased persons settled. — If the decedent is an inhabitant of the
Philippines at the time of his death, whether a citizen or an alien, his will shall be proved, or letters
of administration granted, and his estate settled, in the Court of First Instance in the province in
which he resided at the time of his death, and if he is an inhabitant of a foreign country, the Court
of First Instance of any province in which he had estate. The court first taking cognizance of the
settlement of the estate of a decedent, shall exercise jurisdiction to the exclusion of all other
courts. The jurisdiction assumed by a court, so far as it depends on the place of residence of the
decedent, or of the location of his estate, shall not be contested in a suit or proceeding, except in
an appeal from that court, in the original case, or when the want of jurisdiction appears on the
record.

Therefore, the settlement of the estate of Adoracion Campos was correctly filed with the Court of First Instance of
Manila where she had an estate since it was alleged and proven that Adoracion at the time of her death was a citizen
and permanent resident of Pennsylvania, United States of America and not a "usual resident of Cavite" as alleged by
the petitioner. Moreover, petitioner is now estopped from questioning the jurisdiction of the probate court in the
petition for relief. It is a settled rule that a party cannot invoke the jurisdiction of a court to secure affirmative relief,
against his opponent and after failing to obtain such relief, repudiate or question that same jurisdiction. (See Saulog
Transit, Inc. vs. Hon. Manuel Lazaro, et al., G. R. No. 63 284, April 4, 1984).

11
WHEREFORE, the petition for certiorari and prohibition is hereby dismissed for lack of merit.

SO ORDERED.

Melencio-Herrera, Plana, Relova and De la Fuente, JJ., concur.

Teehankee, J., (Chairman), took no part.

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